Barbara Johnson, an American literary critic and translator, wisely stated “To be in your children’s memories tomorrow, you have to be in their lives today.” This serves as a powerful reminder of the profound importance of parental presence in your child’s developmental years.
Memories are forged through genuine love, unwavering attention, and consistent presence. To be remembered as a significant figure who shaped your child’s lives meaningfully, as a parent, you must engage actively —not just physically, but emotionally and mentally too. It encompasses quality time, shared experiences, and true involvement in their world.
This blog aims to clarify who is granted custody over a minor child in the Philippines, under what circumstances a mother may lose custody, and the procedures for filing a petition for custody and visitation rights.
What is Child Custody?
Custody is an essential aspect of parental authority, which encompasses the totality of rights and responsibilities that parents hold over their children. The parent who exercises parental authority is considered to have custody over their child. This authority and responsibility are fundamental and generally inalienable; they cannot be renounced or transferred, except in specific situations permitted by law. Such exceptions may include cases where a court grants custody to another person due to the parent’s unfitness, neglect, or abandonment.
Parental authority and custody are not merely privileges but also grave obligations. It involves making crucial decisions concerning the child’s upbringing, education, healthcare, and overall well-being. The parent with custody is expected to provide the child’s needs and ensure their safety, moral development, and overall welfare.
It is important to note that Philippine law unequivocally prioritizes the best interests of the minor child. Courts consider the child’s welfare as the paramount consideration when making decisions about custody arrangements. This involves evaluating the parent’s ability to provide a stable and nurturing environment, their emotional and physical health, and their relationship with the child.
Who Has the Right for Custody of a Minor Child?
The sole and foremost consideration for custody over a minor child is their physical, educational, social, and moral welfare, taking into account the respective resources and social and moral situations of the contending parents. The Family Code of the Philippines outlines the exercise of parental authority in specific circumstances:
Article 211: The father and the mother must jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision should prevail, unless there is a judicial order to the contrary. However, courts are guided primarily by the “best interest of the child” principle, and will not uphold a father’s decision if it is clearly detrimental to the child’s welfare.
Article 212: In case of absence or death of either parent, the parent present must continue exercising parental authority. The remarriage of the surviving parent should not automatically affect the parental authority over the child/children, unless the court appoints another person to be their guardian.
Article 213: In case of separation of the child’s parents, parental authority must be exercised by the parent designated by the Court. The Court should take into account all relevant considerations, especially the choice of the child over seven (7) years of age, unless the parent chosen is unfit. This is known as the “tender age presumption,” favoring the mother for children under seven, unless compelling reasons dictate otherwise.
Article 214: In case of death, absence or unsuitability of both parents, substitute parental authority should be exercised by the surviving grandparent. In case several survive, the one designated by the Court, taking into account the same consideration mentioned in the preceding article, should exercise the authority.
When Does a Mother Lose Custody of Her Minor Child?
While the law generally favors the mother for children below seven years old (the tender age presumption under Article 213 of the Family Code), a mother may be deemed unsuitable to have custody of her child/children in compelling circumstances. According to the Supreme Court case of Pablo-Gualberto vs. Gualberto (G.R. No. 154994), a mother may be declared unsuitable to:
Neglect
Abandonment
Unemployment
Immorality
Habitual drunkenness
Drug addiction
Maltreatment of the child
Insanity
Affliction with a communicable disease
Can a Father of an Illegitimate Child Have Custody?
Under Article 176 of the Family Code, illegitimate children are generally under the parental authority of their mother. This means the mother primarily has custody. However, the father of an illegitimate child may be granted custody if there are compelling reasons that demonstrate it is in the child’s best interest. For instance, similar to Article 213 of the Family Code, if the mother is found unfit or unsuitable, the court may award custody to the father or another suitable person, always prioritizing the child’s welfare.
How to File a Petition for Child Custody in the Philippines?
If you are seeking custody over your child, a petition for custody may be filed with the Family Court where you or the minor child resides. Alternatively, a petition for writ of habeas corpus may be filed, requiring the other party to produce the child before the court. During the proceedings, the court may issue a provisional order granting temporary custody to the parent deemed suitable.
Who Has Custody of a Minor Child When Parents are Unmarried?
According to Article 176 of the Family Code, illegitimate children are primarily under the parental authority of their mother and should use their mother’s surname. They may, however, use their father’s surname if their filiation has been expressly recognized by their father through their birth certificate, or by an admission in a public document or private handwritten made by the father. Regardless of surname, the mother retains sole parental authority and custody, unless a court orders otherwise based on compelling reasons and the child’s best interest.
Do You Have Visitation Rights Even Losing Child Custody?
Yes, even if a parent does not have physical custody, they generally retain visitation rights. Pursuant to Section 15 of A.M. No. 03-04-04-SC, the court typically provides visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified.
The temporary custodian should give the court and non-custodian parent or parents at least five (5) days notice of any plan to change the residence of the minor or take him out of his residence for more than three (3) days provided it does not prejudice the visitation rights of the non-custodial parent or parents.
Visitation rights are granted to non-custodian parent or parents to maintain a meaningful relationship with their child, even if the child does not live with them. Visitation schedules are determined by the court, taking consideration of the child’s class schedule, health, and emotional well-being. In some cases, where the court finds the non-custodial parent or parents to be a risk to the child, supervised visitation may be ordered. However, the court may also order the denial of visitation rights if it is demonstrably not in the child’s best interest.
How to File for Visitation Rights?
If the custodial parent or guardian does not allow you to visit your child, you may file for visitation rights in court by following these steps:
Consult with a Lawyer. Seeking legal advice and assistance from a lawyer is advisable during this process. They can guide you from filing the petition to representing you in court, ensuring your rights as a parent are protected and aiming for a successful outcome.
Prepare the Documents. Prepare the necessary petition or motion for visitation rights and gather all supporting documents to strengthen your case.
File a Petition or Motion. File the petition or motion in the Family Court where your child resides.
Summons or Notice. Once the petition or motion is filed, the court will issue summons or notice to the custodial parent or guardian, requiring them to respond within the period set by the court.
Court Hearings. Both parties are required to appear in court to attempt to settle a visitation agreement and to present evidence and testimony.
Court Decision. After evaluating the evidence presented, the court will issue an order determining the visitation schedule, place of visitation, and supervision requirements if needed. Denial of visitation rights may be ordered if the non-custodial parent is found to pose a risk to the child.
Can a Non-Custodial Parent Be Held Guilty of Parental Kidnapping?
A parent without custody who takes a child in violation of a court order or without the consent of the custodial parent may face severe legal consequences.
Under Article 271 of the Revised Penal Code (inducing a minor to abandon his home), if a non-custodial parent induces a minor to leave the home of the custodial parent or guardian without permission, they can be punished with arresto mayor (imprisonment of one (1) month and one (1) day to six (6) months) and/or a fine ranging from Forty Thousand Pesos (₱40,000.00) to Two Hundred Thousand Pesos (₱200,000.00).
More severe offenses, such as illegal detention or even kidnapping under Article 270 of the Revised Penal Code, may apply depending on the specific elements present, such as the intent to deprive the child of liberty or demanding conditions for their return. These carry much graver penalties, including reclusión temporal (imprisonment of twelve (12) years and one (1) day to twenty (20) years) for kidnapping.
Need further information and assistance regarding Child Custody and Visitation Rights? Talk to our team at Duran & Duran-Schulze Law in BGC, Metro Manila, Philippines to know more about the requirements and process. Call us today at (+632) 8478 5826 or +63 917 194 0482, or send an email to info@duranschulze.com for more information.
