Basic issues in child custody

Custody of children is one of the most intense aspects in family litigation. A custody battle could be an independent case or a mere incident in an annulment/separation case. Here are some basic matters relating to custody.

In custody disputes, what is the paramount criterion?

The paramount criterion in custody disputes is the welfare and well-being of the child, or the best interest of the child. The court, in arriving at its decision as to whom custody of the minor should be given, must take into account the respective resources and social and moral situations of the contending parents. Nevertheless, this primordial rule can override the rights of one or both parents over their children.

What is the general rule as to custody over children?

The general rule is that a child under seven years of age shall not be separated from his mother, which is based on the basic need of a child for his mother’s loving care. Article 213 of the Family Code provides that “[n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” This is more pronounced in case of illegitimate children, as the law expressly provides that illegitimate children shall be under the parental authority of their mother.

Is this rule absolute?

This rule is not absolute. Even a mother may be deprived of the custody of her child who is below seven years of age for “compelling reasons.” Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. Negligent and careless failure to perform the duties of parenthood is a significant element of abandonment, regardless of actual intention. A strong basis for a finding of the parent’s abandonment of his or her child is found in the case where the parent has left the child permanently or indefinitely in the care of others, given it to another, or surrendered it entirely.

I left my child to a relative, even signing a document to such effect. Am I barred from taking back my child?

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The rule is that children older than 7 years old are allowed to state his preference. Is the court bound by such preference?

While such choice is given respect, the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person. Decisions on custody of children are always open to adjustment as the circumstances may warrant.

299 thoughts on “Basic issues in child custody

  1. bong

    Good day po Attorney, i would like to ask for any legal advice, I am married and have 2 daughter, but as of now its been 2 years since me and my wife separate but not legally, she is now working abroad and I am here in Philippines working also, my problem is our two daughter is with the parents of my wife, I would like my kids to be with my parents since every week end i went home to my parents house, but my wife doesn’t want that set up, she insist that the kids since below 7 years old should be with the mothers custody and in behalf of her, were her parents, and specially now that me and her parents have a conflict actually I have a threat from her father so there will be a problem with i will go to their place to visit my daughters. Please give me legal advice on what to do with this situation. one more thing a stopped sending money to the parents of my wife for my kids since last year because of the conflict.

  2. ezekhiel

    Magandang araw po sayo atty.

    May anak po akong 5years old na babae.. OFW po ako hndi po kami kasal sa nanay nang bata.. gusto ko pong kunin anak ko sa kanya para kahit papaano gumanda buhay nang anak ko.. pinapadalhan ko sa una ung mag ina ko, tpos hanggang sa dumating ang araw na nagkalabuan kami.. may ibang lalaki sabuhay niya tanggap ko naman un.. sa akin lang gusto ko tustusan ang anak ko kaso ung nanay niya ayaw niya maki-alam ako sa anak ko tpos kalimutan ko na raw anak ko.. gusto niya ayaw tumanggap nang gasto galing sa akin ang anak ko.. ano po pwde gawing ko?

    wala pong birth certificate anak ko.. asahan ko po reply niyo

    thank you and more power!!

  3. dale

    Good Afternoon po Atty.

    yung kuya ko namatay na po siya,,,tapos yung pamangkin ku po ay nasa custody ng kanyang lola(mother side)…yung nanay po ng pamangkin ko ay nasa abroad,,,kaso po yung lola niya is ayaw na po niyang papuntahan or ipasama sa amin yung pamangkin namin…tanong kulang po kung may habol po kami sa pamangkin ko kahit namatay na po yung kuya ko?


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