Abandonment of illegitimate minor children

Dear Atty. Duran-Schulze,

My niece (an illegitimate child of my sister) was abandoned in the Philippines, in the care of our old neighbors. May I know who will be responsible for the child, so we know the custodial rights involved regarding my sister and the father of my niece. 


Dear Lorraine,

In accordance with the Family Code, it is the mother who has parental authority over the illegitimate child. Art. 176 of the Family Code states that, “Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.” 

In this case, the mother may file a petition for custody of minors, following Sec 2 of the Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. This section reads, “a verified petition for the rightful custody of a minor may be filed by any person claiming such right.” 

Note that there are a number of factors that shall be taken into consideration in determining custody of the child, primarily the best interests of the minor child. 

Section 14 of the abovementioned law defines best interests of the minor as the “totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.”  However, the custody of the mother is not absolute, due to certain compelling reasons that may remove the minor child’s custody from her. 

The case of Pablo-Gualberto vs. Gualberto V (G.R. No 154994, June 28, 2005) enumerates the following compelling reasons: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease. 

If the parent, in this case the mother, is proven to be unfit, this is where substitute parental authority over the child shall come into play. Art 216 of the Family Code states that the surviving grandparent; oldest brother or sister, over twenty-one years of age; or the child’s actual custodian, over twenty-one years of age shall have substitute parental authority over the child, in this order.    

In your case, it is unclear if you wish to secure the parental authority of your niece. As an aunt, so long as you are over twenty years old, you may petition the court to secure the parental authority of your niece. This way you can lawfully secure the physical custody of your niece from the neighbor. 

Need further information and assistance?  Talk to our Legal team at Duran & Duran-Schulze Law. Call us today at (+632) 8478 5826 or send an email to info@duranschulze.com for more information.

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