Dear Atty: Grandparent’s Rights

Under the Family Code, as a general rule, parental authority is exercised jointly by the parents. The custody of the children are as well with the parents, this however, assumes that the parents are married. 

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent – where the child’s custody will be. In case several survive, the one designated by the court, taking into account all relevant considerations, especially the choice of the child over seven years of age, unless the grandparent chosen is unfit.

Considering that you and your partner are not married, the child is illegitimate. Under the Family Code, an illegitimate child regardless of age shall be under the sole parental authority of the mother. The law is silent as to the right of the illegitimate child’s father regarding parental authority. 

The law however provides a remedy for the illegitimate child’s father to secure custody. A.M. No. 03-04-04-SC or the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors provides for the procedure in case of persons deprived of the rightful custody of the child.

A verified petition for the rightful custody of a minor may be filed by any person claiming such right. After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody:

• Both parents jointly;
• Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;
• The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;
• The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;
• The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or
• Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. 

In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. 

The best interests of the minor refer to 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.

The court shall also consider the following:

• Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non-custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;
• The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;
• The health, safety and welfare of the minor;
• Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;
• The nature and frequency of contact with both parents;
• Habitual use of alcohol, dangerous drugs or regulated substances;
• Marital misconduct;
• The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and
• The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

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