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.

359 thoughts on “Basic issues in child custody

  1. MD

    Hello Atty,

    Magtatanong lang po about sa child custody between grandparents at father. simula nung sinilang ang bata ay mga grandparents na po ang nag alaga sa kanya dahil ang tatay naman ay di maka provide ng tamang responsibilities para sa family nya. in short po, walang kwenta ang tatay. Ngayon po ang bata ay 10 yrs old na at balak bawiin ng tatay ang bata dahil siya nalang po mag alaga at malamang maghihirap sila kasi wala naman po trabaho ang tatay. while binibigay lahat ng grandparents ng bata ang lahat ng gustuhin at magandang paaralan para gumanda ang future. May laban po ba ang mga grandparents sa child custody ng bata? ma cocover kaya sila ng batas?

    Reply
  2. Cathy

    Hi Atty,
    Greetings!
    I’m a single mother, but I was married to my daughter’s father. He abandoned us years ago. He has gone missing for 9 years as well. He left when my daughter was still 5 years old. I know annulment is super expensive and I won’t be able to file for it. I am truly praying I could fight for separation and full custody of my daughter. My income is enough to help me and my daughter with our day to day expenses and savings is there in case of medical emergency and for her school needs . For 9 years, her father has not supported her not even a single penny.
    I asked about custody and they said I need to file it and it would take 1 year or more 🙁
    What other options do I have to make the process faster. Me and my daughter just want our freedom and to fix documents for my daughter’s future. Thank you.

    Reply
  3. Me

    Atty i just need a legal advice nsa ibang bansa poe aq umalis po aq 4 yrs ago dahil wlang maayos n trabaho ang asawa ko at ugali nia po n bugbugin ako lalo na kapag nalalasinh sya kapapanganak ko pa lang binugbog at pinahiya nya ako dahil dun ako sknila nkatira ipinagtanggol lang aq ng kapatid nyang babae pati ng lolo at lola nia nagbago naman sya nung nagtratrabaho n ako at sya umaasa lang sa kita ko naman sya kso nwla n ang pagmamahal ko at nung nasa ibang bansa ako mai nanligaw poe skin at nlaman ko ren n may gf n sya habang sinusustentuhan ko ang buong pamilya nya pati luho nya dahil ang nsa isip ko andun ang anak ko sakanila ? Ngayon 2 taon n po kaming hiwaly 4 yrs old n poe ang mga anak ko gusto ko po silang mkuha next yr paguwe ko ntatakot lang po ako n d nia ibigay o ipanglaban nya n niloko ko sya samantalang parehas kameng may mga karelasyon ng mga panahon n yun pls kailangan ko po ng sagot nyo salamat po

    Reply
  4. Rhaiven

    Good afternoon po atty.. Tanong ko lang po..
    Paano po kong yung babae nagkaroon n pnbagong asawa at anak…
    bilang ama, pwede ko rin po ba makuha ang sa anak namin dahil sa may kinakasama n syang iba?
    pwede na po b yung mgng grounds para mapa sakin ang anak ko,kasi po financially kaya ko pong suportahan ang bata…
    maraming salamat po…
    more power.

    Reply
  5. Reymar

    Magandang araw po. Hingi po sana ako ng advice kung anong dapat kong gawin dahiL yung dati ko pong kinakasama itinakas yung anak namin. Okay Lang naman po sana sakin basta mag kasama siLa kaso iniwan nya sa probinsya. Natatakot po ako sa kaLagayan ng anak ko dahiL ang pinag iwanan nya po ay yung LoLo at LoLa nya, kapatid nya and tito nya. (matanda na po yung LoLo’t LoLa nya, manginginom pa yung LoLo, yung kapatid nya pumapasok sa schooL kaya di ko din po masabing mababantayan yung baby ko tapos yung tito nya na may mentaL and psychoLogicaL disorder ata yo’n? Worried Lang po sa kaLigtasan ng anak ko tapos yung nanay nya dito panay Lang ang good time. May Laban po ba ako sa chiLd custody?

    Reply
  6. Joselito

    I am the father of a baby boy born in 2015. His mother and I were not married and broken up before we learned of her pregnancy. I paid her prenatal care and for a needed cesarean section. (Although she pocketed the money I provided for a private hospital and checked into the public hospital instead.)

    Since birth, I have provided support but the mother has allowed less and less time with my son. Now she works as a GRO (prostitute) in a bar and told me she has left my son in a remote mountain barangay with her relatives. She gave me a number to contact them to arrange to visit him but it always rings unattended.

    I have offered many times to take him and care for him as she is unable and her family are indigent. She agreed initially to get money and delay, but now she refuses even though she is not caring for him. As a compromise, I offered joint custody with her parents. She told me to discuss it with her father, but the number she gave me for him always fails.

    I have not seen my son for almost 5 months now and am looking for legal options. Is her immoral lifestyle as a prostitute and abandonment of him with indigent relatives sufficient grounds to declare her unfit as a mother and gain full custody? If not, what are my options?

    Note: My name does not appear on his birth certificate and he is not carrying my name at this time.

    Reply
  7. Rej

    Hello po attorney, sana po matulungan nyo ako I need some legal advice. May daughter po ako 2 years old palang po sya and hindi kami kasal father nya. But when I delivered my baby andun yung father nya to recognize my baby na sya yung daddy and magka surname sila sa birth cert kasi at that time magka live in partner pa kami, we were both students at that time pa pero since maka graduate na ko naghanap na agad ako ng work then sya student paren and as time goes by nalaman ko mga bisyo nya, excessive drunkness nya mga biyso nya like alak, barkada, yosi, babae, marijuana. Yes marijuana!. And nalaman ko nagka affair sya sa isang babae nung kami pa. And naghiwalay kami after that and then nagkabalikan kami for the sake of our baby. And after a year lagi na kami nagaaway gawa ng mga bisyo nya then naghiwalay ulit kami then nalaman ko na nagkaroon ulit sya ng babae after namin maghiwalay. I tried na papiliin sya kung yung anak namin o ung babae. Yung girl yung pinili nya pero lage paren sila nagkakasama nung girlfriend nya, take note he is still a student and doesn’t even have a job to pay child support for my daughter. Umaasa lang sya sa magulang nya. And after that, I made a choice na di na ipakita yung anak ko sa kanya but to his family esp. to his mother and father nakikita pa nila hinahayaan ko sila mag visit samin. But everytime na kasama nila yung daddy ng anak ko di ko hinahayaan na makita nya o mahawakan yung anak ko. And dun sila nagalit, they want to file a case sa barangay dahil sa ginagawa ko. This is my question po is it legal for them (the “lola” the mother of my ex-bf” to file a case for me. And ano ang laban ko para di makita muna ng daddy nya yung baby ko take not nagamit ng marijuana ung tatay ng anak ko he may be a bad influence to her. Salamt ng marami attorney

    Reply
  8. Jasmin

    Hi po..patulong po hngi aku ng advise…my knaksma akng foreigner..nbunts aku for 8month kming ngsama,pgdating ng 8month n tiyan ku,nagkahiwalay kmi dahil d n kmi ngkakaintindhan.Ngayun nanganak n aku.bale umuwi n siya s kanila…at palage nyang cnabi n kukunin nya ang anak namin.pero hindi naman nka apilydo s kanya ang anak namin..anu po b ang gagawin ku?my chance b n mkha nya anak ku?
    Sana po mbigyan nin u aku ng advised kung anu gagawin.salamat po

    Reply

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