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.

495 thoughts on “Basic issues in child custody

  1. Rhonda

    Dear Atty,
    I am humbly asking your advice for a friend in Philippines. Her sister was given a child by a friend and fellow addict right after birth. The sister would leaves the child with my friend and only takes it to show it off and run around. As soon as there’s no diaper or milk she returns the child to my friend. The baby now just a little over a year looses weight and is put in harm’s way whenever the sister asks to borrow the child. My friend has contacted the biological mother who is now in prison for drugs and the unwed biological father. They agreed that the baby should stay with my friend. With this said, they are all afraid that the sister might contact bantay Bata or something and the child will be taken by dswd and wouldn’t be able to get back for 2years… What is the best action that they should take to ensure the child stays with my friend and remains well cared for and above all loved?

    Reply
  2. Joylyn

    I hope you can give me an advice and help me clear my mind..

    I have a husband but left me on the year 2015, we have 2 daughter the eldest is just 3 years old that time and our youngest was 1 year old. Now this year 2017 his family start visiting and see our children at first I allow them to see my daughters but on there 3rd day of visiting my daughters they said that they want to take my daughters to attend a pool party but the location was far away from where I live with my daughters.

    When they said those words I was so affraid that what if they do take my daughters and I refuse them,

    On the 4th day they visited my children I told them to stop coming because I was affraid that they will said again that they want my daughters to go with them so that’s why I told them to stop.

    The grandmother and all his sisters and even the husband of his sister accouse me of hiding my children from them and they were so angry that I was not allowing them to see my daughters.

    More than 2 years that my husband left us he never comes back tell now nor giving support to my children.

    He left me once when our eldest daughter where only 3 months old but I give him second chance that time but left us again when our youngest daughter where just 1 years old.

    He never once try to see our daughters.

    He abandoned me and my daughters he took all our savings and left me zero balance that time.

    His family said they well file a case against me for hiding my children from them but they just start visiting my children this year 2017 after my husband left us in year 2015.

    I didn’t hide my daughters, they know where I was living and yet they just start visiting my daughters just now and accousing me that I was the one who done the wrong thing.

    Please give me some advice it really give me a hard time rightnow.

    I don’t want to lose any of my children, they said that even I hide my daughters when my eldest daughter rich 7 years old they will going to teke her away from me.

    They also said that I don’t have the right to say no to them when they are visiting my daughters.

    What am I going to do for not losing any of my daughters or filling a case against me.

    Reply
  3. Rg

    Hello Atty,

    I would like to know if we have a chance of taking the legal custody of my sister’s daughter who died when the baby is still 10 months old. The daughter is under his name on the birth certificate. The grand mother already took charge of taking care of the baby and was given a chance to bring the baby abroad and study up to now. She is currently 9 years old and her father is threatening us to take legal action to take her daughter back. The daughter is based here abroad living with us together with the grandparents. I am considering as her mom together with my other 3 children. The father is a musician with another illigetimate child from a different mother.
    Looking forward to your advice to pursue the case in the future.

    Reply
  4. Liah

    Good day. My brother is OFW, He visited here in Philippines last year. His wife decided to have a separation from him. His daughter choose my brother. Can our mother which is her grandmother are allowed to be a legal guardian of my niece? we have a special power of attorney which allowed my mother to be the guardian of my niece. Thank you

    Reply
  5. MONA KRIZZA

    Atty.. I need an advice regarding to my previous relationship were not married. She’s unemployed. Now she have a partner and 2 kids from different men. But my son is the oldest from them.I have also a own family now.We are separated for 5 years now.But we have a son who is turning 7 years old this year. Im planning of custody to my child . Do you think I am more legible to get my son because I have a job and well oriented family than her. Thanks for advance

    Reply
  6. Cyrus

    Atty good day po! Me and my wife are seperated but not yet annuled for more than 4 years already. Is there a possibility that I can have our kids’ custody(7 & 6 yrs old) since she already have her new baby with her new live in partner? I have a stable job and I dont have any girlfriend or any partner. Thank you po.

    Reply
  7. nouha

    my husband have the custody for his daughter who is now 12 yrs old..under govt and islamic law.. will it still be honored when he moved and live in philippines? or the country has its own law above thsi matter? has the mother hold the right to ask for custody at her present age ? ( 12 yrs old)

    Reply
  8. Kisses

    Kami po ng dati kong livein ay may dlawang anak..both boys..
    Naghiwalay po kami sa mga hindi mpagkasunduang bagay..umalis po ako sa amin at tumira sa magulang ko ..naiwan po sa kanya ang dlawang bata dahil nagaaral po ung panganay at ung bunso nman ay hindi ko maisama dahil masyadong maki ama..eventually nkpagtrbaho sa maynila..nagkaroon po ako ng bagong pagibig at nagssama kami sa iisang bubong ..galit na galit sa akin ang dati kong livein partner..hinihiram ko po ang bata at nagmmkaawa ako kahit isang gabi lang makasama .ibbalik ko din kinabukasan pero ayaw nya po ipahiram sa akin.ang gusto po nyang mangyari ay umuwi ako pra makatabi at mkasama sila..kahit sa bhay ng magulang ko ay payag nman sya na isama ko mga bata .pero ako po ay dito na permanente nkatira sa quezon city..at dto ko gustong isama ang mga anak ko.isang 5yrs old at isang 3..
    Ano po ang dpat kong gawin

    Reply
  9. zhaira

    good eve po atty.

    tanong ko lang po kung anong dapat naming gawin.. kasi po yung kuya ko po.. hiwalay na po sila ng kinakasama nya. yung kinakasama nya pong yun ay 18 years old palang at ang kuya ko ay 26 years old na.. may anak po sila dalawa na dapat kaso namatay na po yung panganay wala pang isang buwan dahil sa kapabayaan ng nanay.. ngayon po ang anak po nila ay 4 months palang yung nanay po ng bata ay nanlalake di pa po sila hiwalay ng kuya ko.. pero ngayon po nag hiwalay na po sila kasi nasasaktan na po yung kuya ko.. nung linggo po dinala ng babae yung bata sa bahay ng lalake nya.. at dun sila natulog ng bata pero ang sabi lang po ng babae sa kuya ko ay mag sisimba.. nung lunes ng hapon bumalik na ang mag ina sa kuya ko.. pero natatakot na po yung kuya ko kasi baka ihiwalay nanaman po sa kanya yung anak nya.. eh alam po naming lahat na wala pong masyadong alam o kakayahan yung nanay na mag alaga ng bata kaya gusto po sana naming itago yung bata sa kanya.. pero nag dadalawang isip po kami kasi baka makasuhan ng kidnapping.. ano pong gagawin namin atty.? nahihirapan na po yung kuya kong mag isip pero tanong ko lang atty… may posibilidad po bang makasuhan yung kuya ko kung sakali kahit na sya ang ama ng bata?.. tsaka may posibilidad din po bang mapunta sa kuya ko yung bat?

    PS: di po sila kasal ng babae atty.. salamat po

    Reply
  10. Leni

    Hi atty. I am a single mom of 2. I am currently living in with the father of my 2nd child for 7yrs now. We’ve been dating for 2 yrs when we we have our baby. I have an eldest child with a different man. Our child is now 13yrs old. My child told me that her dad and lola are planning to file a joint custody battle. What are my chances and his chances of getting the custody of our child? We were never married. He is now married how several years but they don’t have a child. When my daughter was only 4 she once told me that her dad cane home drunk with his friends. They slept in their room. My child and her father is sharing the same room at their house. My daughter once said ang panghi ng room nila umihi raw sa bed ang kasama si daddy. At an early age my daughter is fully aware that his father drinks a lot and often. Until now that he has his own house with his wife. The same things are happening. But he came from a rich family that can fully support my child’s needs. Just few days after i gave birth they already wanted to get the child from me. I was never madamot because i know that they are providing everything that my chikd needs. I remember her lola ask me after giving birth. San ba uuwi ang bata sa amin ba or sa iyo? They even convinced me of how am i suppose to take care of my child i was studying then i was only 19. So we agreed that the child stays with them during week days and i get to see my new born every weekend only. Until i got a job and can support my child so i took her and they get to see her weekends. In my part, i don’t have a job right now but im currently working on with some trainings ang reviews to be a teacher. My partner was married when we meet. He and his ex wife were already separated but not legally when we meet at 2009. My daughter was 4yrs old then. They file for an annulment last 2012 was not granted and appealed last 2015. The annulment was granted dec 2017. Now we are planning to get married on 2019. Atty, again, what are his chances . Thank you

    Reply
  11. gilbert

    Atty,
    isa po akong ofw dito sa saudi arabia nagka roon po ako ng dalawang anak na nasa edad na 23yrs old ang bunso at 25yrs old na yung panganay ngayon ang panganay po ay may trabaho na at may anak na isa ang bunso ay tapos ng pag-aaral at ito ay nag tatrabaho na din. patuloy pa din po akong nag susuporta sa kanila ng sustento. almost 20 yrs na po ako hiwalay sa asawa ko. ang tanong ko po anu po ang edad ng mga bata na para ihinto kona ang supporta ko sa kanila at makapag ipon naman ako ng para sa akin para sa pagtanda ko? marami pong salamat….

    aibara iduas

    Reply
  12. rusenth

    Hi ask ko lang kasal ako sa wife q we are 1 year mhgit ng hiwalay , 1year din akong nag padala ng suporta pro hnd nya ipinakita. til i decided na ipakita nya ito.at ipinakita nya ito pro isng beses lng. another day is came, hnd nanaman nya ipinakita ang bata pro nang hihingi ng sustento , hnd q ibinigay ang sustento bagkus itinago q at inipon ang pera hanggang ipakita niya ito. my labn ba ako as husband and father na makahati sa custody ng bata ? mag 4 years old na ang son ko. gsto q po kc mang yare tig half month kme na makasama ang bata pra fair. pde po kya ito as my request bilang kasal naman ako ?

    Reply
  13. Azumi

    GOOD afternoon po.
    I have a friend from Denmark, he is married to a Filipina in Philippines they have two son but they marriage does not work out because they like a cat and dog even in a small thing, and January 2017 they had a arguments about in a RIGHT TURN. They going to pangasinan to check some of the bamboos they shouting each other like there’s no space on their’s face,then his Filipina wife left him in the middle of the mountain he don’t know where to go because he is a foreigner he also don’t have a data or wife to use his maps. So his so scared then he drove straight ask some farmers is they daw nearby convenience store so hi could use wifi. Lucky he reach house of his wife grandparents, they parent staring at him like he did a worse thing to her Filipina wife, so he tried to talk to them but then his wife come out from her grandparents house then suddenly she point her finger to my friend forehead and told him GET OUT OF OUR HOUSE I DON’T WANNA SEE YOU ANYMORE YOU NEED TO GROW UP and kick him out LIKE a dog on her grandparents house in front of her family and neighbors she humiliate my friend totally ,my friend don’t know where to go he don’t have friends in Philippines ,, she did not do it in one time she did it two times to again and again what if something bad happened out in the streets him and she burn her flights ticket to Denmark and broke her visa to Denmark now she cannot go to denmark because she broke her special visa, and now my friend wants a divorce to her but she don’t want.my friend also told me that he coming to Philippines November 20, but his wife told him that they waiting the news from immigration because her and her family monitor his travel,, and she also him that they will file a demand against to him like marital rape and abandonment,,they trying to blackmail my Danish friend, now my friend was so scared because he thinking maybe go to jail in Philippines. What do you think about it ? Do you think my friend can hold the immigration of the Philippines and put him in jail if his wife family file a demand against him? Is that possible?? I really want help to him my friend but I also don’t know about Philippines laws, I hope I can hear your answer thank you…

    Reply
  14. vikki

    Hello po attorney..pls po pa advice ako.. anak po ng kapatid ng husband ko iniwan sa amin baby pa mga 2 months old.ngayon po 5 years old na ang bata..puede pa po ba syang kunin ng nanay sa amin. kasi po iniwan lng sana sa amin kasi mag aaral lng ang nanay ngayon after 1 year nalaman na lng po namin na buntis na naman po..

    masakit lng po kasi super attached na po ako sa bata MAMA na po turing sa akin

    Reply
  15. Cherryl

    Dear atty, my brother has 2children, 12yo boy and 7yo girl.my brother and his wife had a disagreement that lead to separation. The mother took the 2 children without the knowledge of the father and without saying the whereabouts of the children. In the last quarter of the school year. Not taking in consideration the negative effect on the studies of the children and their emotions since they are close to the father. What shall we do? Can we file a case againts the mothers actions? Pls. Help enlighten us.

    Reply

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