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.

92 Responses to “Basic issues in child custody”

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  1. 15 mariacruz_1027 May 17th, 2009 at 7:48 am

    Hello Atty,

    I have 4yrs old son carrying my last bf’s surname
    It’s been 3yrs now that I don’t know where is the guy
    Never had financial support ever

    Just this year I got married with a guy that wanted to take us to Canada
    My question is can I get full custody for my child from the court
    withour consent of his father?

    Thank you and I am looking forward for yur response

    Best Regards,

  2. 14 ja_carag May 11th, 2009 at 8:12 am

    How long does a custody case normally last and how much would be the projected cost of one? If the info about cost is confidential, please email me at or I can send you my contact numbers.

  3. 13 loveskee Mar 11th, 2009 at 3:14 am

    i need help… i have a minor 16 year old daughter who gave birth october 4,2008.. the father of her son is 18 years old and did sign the acknowledgment on the birth follows his last name…… now he is demanding to have my grandson ……said that he can take him because its after his last name..he even tell their common friends of his plans…my daughter and grandson lives with me and the guy with his mother and from time to time he comes to give some milk and diapers…. they are not married…… there a way for me to have my grandson after our last name…….. or does he have the right to take away my grandson….is there any actions i can take regarding this..please help…thank you.

  4. 12 eci Dec 9th, 2008 at 7:21 am

    I just want to know what are the proceedings for me too have custody of my 2 year old child. My husband is an Indian but we got married in the Philippines. Now I want our marriage annulled and take custody of my child, but we are currently in Saudi Araia. Please help me…Thanks…

  5. 11 qgracie14 Oct 21st, 2008 at 1:58 am

    Hi, please give me insight about my situation. I am married for 4 years now, living with my in-law (his mom). Every time my husband and I have disagreements, he would tell me to leave the house, telling me that I’m just a sampid, border lang sa bahay nila. The reason that I stay is because he wants the custody of our 3 year old. Ayaw ko nalang sana ng skandalo, I just want to bring our child with me. I know my rights as a mother but knowing my husband, we will just be doing tug-of-war over our daughter. I want to go back to my parents house which is only blocks away from where we live now and I’m afraid of the scandal it might create. Please tell me what initial steps I must do if the situation gets out of hand. Should I go to the baranggay, police or dswd. I want to do this in a civil way. Please help me. Thanks!

  6. 10 aileen1980 Sep 3rd, 2008 at 2:55 pm

    hi, please give me advice… my brother is 26 yrs old now and he have 2 daughters age 5 and 4, both use my brothers last name even he did not marry the mother of the child… before the mother and the kids live in my parents house with my brother, but when my brother left to do apprentice in the inter island ship, the mother left the house and take the kids with her… we went to dswd to get the custody because the mother is having an affair to a married man and she just left the kids to her parents, the kida said they don’t eat breakfast, only their grandfather because he is the one working… then the dswd turn over the kids to us because of immorality but then they borrowed the kids and did not return so when my brother came back after his apprentice he went their to get the kids…. we have the kids in my parents house, they both go to school to a day care center and have classes in the church next to our house every saturday and sunday… my brother is in manila now and applying for his visa to work abroad and very bothered because the other day the dswd called and told my sister to bring the kids with her to meet the mother in their office… the mother make a drama there and said that we didn’t let her see her kids and she want the custody… the dswd gave her the custody because of the law. we are thinking about the kids future, what will they be when they grow up… the mother is a GRO when my brother met her, now she is still doing it… what advice can you give me? do we need to go to court to get the custody? thanks in advance

  7. 9 zweela Sep 3rd, 2008 at 4:39 am

    Hi I have a Brother he’s 22 years old and he is married but he separated with his wife because he found out that his wife had another man. They have a son and its 2 years old now and i want to know if it would be possible that my brother could have the custody of the child. What are the chances that he can have the custody of his child in this kind of situation?

    If we go to court do we have a chance in getting the child?
    Hope to hear from you soon. My email address is

  8. 8 bellatrix18 Aug 7th, 2008 at 10:13 am

    My husband has a 2-yr old illegitimate son under his custody. The boy’s mother acquiesced since she’s unemployed and with 3 elder children from past relationships. I plan to adopt him. How do we go with it? I very much anticipate your reply. Thank you so much.

  9. 7 GRAZIELLA Jul 27th, 2008 at 3:37 pm

    Hello Atty! My sister is working in Italy as domestic helper.Her 3 children are left under the custody of the father. The husband has been jobless since they got married. The couple is also undergoing marital problems. My sister wants to file custody for her children because she is also experiencing emotional blackmail from his husband.Will she get the custody even if she is not physically present to give maternal love? Does she have the right to choose who will take care of her children, if ever she gets the custody. Her eldest child is now 8 years old, but she was born before they got married, and application for legitimation has not yet been applied.please help her. Is it also possible to file for the case even she´s abroad?

  10. 6 ryemon7650 Mar 3rd, 2008 at 1:02 pm

    Just an inquiry. I’m quite confused with this line “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.”. Now, does it have to be that me and my wife should be legally separated for this general rule to apply? Or even if our marriage still exists, this general rule still applies? thanks ahead.

  11. 5 Atty. Fred Sep 28th, 2007 at 12:35 am

    bigfatmama, my dilemma is this – I’d end up giving a legal advice on the matter if I proceed to answer your question. As repeated countless of times in this Forum, we’re prohibited from giving any legal advice. There are other circumstances that should be considered, and these are matters that are properly within the competence of your retained counsel. I hope you understand.

  12. 4 bigfatmama Sep 17th, 2007 at 3:12 pm

    please help me…
    my cousin had a live-in partner, they separated last year.
    they had a daughter, she’s 3yrs old now.
    the child used my cousin’s surname.
    the mother had another baby from another man that left her just before she gave birth last month.
    she’s been demanding child support.
    it worries him because the support might not be given fully to his daughter.
    she has no job, no source of income.
    and is facing several theft charges from her 3 previous landlords.
    are these considered “compelling reasons” for her to be deprived of the child’s custody?
    and is my cousin entitled for his daughter’s custody?

  13. 3 ramonsd Aug 30th, 2007 at 3:25 am

    Sec. 7 of A.M. No. 03-04-04 on THE RULE ON CUSTODY OF MINORS gives respondent 5 days from personal service of summons and a copy of petition within which to reply. A RTC (Family Court) where one such custody petition was filed gave respondent 15 days within which to do so.

    I was wondering about the discrepancy and whether or not it is merely too trivial a detail to even consider. I am of the position that the spirit of the SC rule recognizes that child custody proceedings are impressed with more urgency compared to other civil proceedings. That is why shorter compliance periods were specified.

    Is AM No. 03-04-04 still applicable?

  14. 2 Atty. Fred Aug 8th, 2007 at 4:39 pm

    ramonsd, there’s no prohibition against the proper party to file a petition for annulment notwithstanding the pendency of a petition for custody. The certification against forum shopping in the subsequent petition for annulment would most probably state the pending custody proceedings, and the latter would most probably be consolidated with the subsequent petition for annulment. I suggest you pursue to dissect this matter, with the help of other students of law, at the Bar Exams Forum.

  15. 1 ramonsd Aug 7th, 2007 at 8:46 am

    “A custody case could be an independent case or a mere incident in an annulment/separation cae” – can someone who has a pending custody case subsequently file a separate annulment case? Is this not “splitting the cause of action”?

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