Published 3 February 2020, The Daily Tribune

It is a most regrettable situation when families break apart, and children are caught in a tug-of-war between the parents. In such instance, the law steps in to ensure that the best interest of the children is given paramount consideration in determining the party fit to take custody.

Under Article 213 of the Family Code, the general rule is that in case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

However, if a child is under seven years of age, the child shall not be separated from the mother, unless the court finds compelling reasons to order otherwise. Some of the compelling reasons which would justify an exception to the rule and not awarding custody to the mother are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable illness (Tonog vs Court of Appeals, GR 122906, 7 February 2002).

In case of illegitimate children, the law expressly provides that they are under the sole parental authority of their mother.

In David vs Court of Appeals (GR 111180, 16 November 1995), the Supreme Court held that the recognition of an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child. The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor.

This was reiterated in Briones vs Miguel (GR 156343, 18 October 2004), which involved a petition for habeas corpus filed by Briones to obtain custody of his illegitimate child. He conceded that the mother of child has preferential right over their minor child, however, he asserted that custody should be awarded to him whenever she leaves for Japan and during the period that she stays there. In other words, he wanted joint custody over the minor, such that the mother would have custody when she is in the country.

Rejecting such position, the Supreme Court ruled that because the illegitimate child is under the sole parental authority of the mother, in the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care. Even in her absence, the father is not entitled to custody of the child.

In the 2018 case of Masbate vs Relucio (GR 235498, 30 July 2018), the Supreme Court clarified that the choice of a child over seven (7) years of age shall be considered in custody disputes only between married parents because they are, pursuant to Article 211 of the Family Code, accorded joint parental authority over the persons of their common children. On the other hand, this choice is not available to an illegitimate child, much more one of tender age below 7 years old, because sole parental authority is given only to the mother, unless she is shown to be unfit or unsuitable (Article 176 of the Family Code).

In the event that the mother is found unfit or unsuitable to care for the child, Article 214 of the Family Code mandates that substitute parental authority shall be exercised by the surviving grandparent. Under Article 216, in default of parents or judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent as provided in Article 214;

(2) The oldest brother or sister, over 21 years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over 21 years of age, unless unfit or disqualified.

Upholding the child’s best interest demands a proper appreciation and implementation of the foregoing provisions of law governing child custody. At the end of the day, the desire of a parent to take custody must give way to the mandatory provisions of law and to the dictates of what would best serve the needs of the child.

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