Can Father of Illegitimate Child Obtain Custody when Mother is Abroad?

The short answer is no – particularly if the child is younger than seven years old, and not unless the mother is found to be an unfit parent.

An illegitimate child is born of parents who weren’t legally married during the time of the child’s birth, and who continue to be unmarried to each other.

By law, the mother of the illegitimate offspring has sole parental authority and may keep the child in her care. This rule applies even if the father acknowledges paternity. Though the court may require the father to provide support, the court will not grant full custody.

Working abroad does not constitute abandonment

In the case of Briones vs. Miguel, GR 156343, Oct. 18, 2004, the court chose to uphold the mother’s custody although she had left the Philippines to work in Japan. She was able to eventually bring the child to live with her.

It is stated in Article 213 of the Family Code that children younger than seven years old can’t be separated from their mother unless the court finds persuasive reasons to do so.

In Briones vs. Miguel, the court ruled that: “Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else.”

In previous custody cases, the grounds for another to be deprived of custody and parental authority have been:

  • Neglect or abandonment
  • Maltreatment of the child
  • Immorality
  • Unemployment
  • Habitual drunkenness
  • Drug addiction
  • Communicable disease
  • Insanity

There are two things that determine the fitness of a parent:

  • The capacity to attend to the physical, social, moral, and educational welfare of the child
  • The capacity to give the child a healthy environment, in addition to physical and financial support that take into consideration the resources and the social and moral situation of the parent

Leaving for work in another country does not count as neglect or abandonment. Having entrusted the child with the child’s maternal grandparents is not grounds for removing custody from the mother either.

Likewise, the mother cannot transfer or renounce custody of the child unless authorized by law.

Fathers of illegitimate children, however, do have visitation rights that cannot be denied by the mother or the child’s maternal grandparents.

Visitation rights

In the case of Silva v. Court of Appealsthe court upheld the visitorial rights of a father over his illegitimate children in lieu of the inherent and natural right of the parent over their children, one that is protected by the constitution. The rule applies even if the parents are estranged and have lost affection for each other, with the premise that their feelings for and attachment to their children remain unchanged.

The law and the court will not allow their affinity for their children suffer, not unless there is a grave, real, or imminent threat to the illegitimate child’s well-being.

For more information on family law litigation, get in touch with Duran & Duran-Schulze here. The attorneys at Duran & Duran-Schulze offer a free case evaluation for your convenience.

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