Custody: Voluntary Custody Agreement

Parents, both the mother and the father, have the authority to oversee that the welfare of his or her child is being taken care of. This can be gleaned in Art 211 of the Family Code, which states that, “The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary…” 


However, there may come a time when due to unfortunate circumstances, one parent must take custody of the child over the other. Art. 213 of the Family Code states 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.” Art 214 of the Family Code provides further that, “In case of death, absence or unsuitability of parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by court, taking into account the same consideration mentioned in the preceding article shall, exercise the authority.” 


In some cases, the legal guardian will have custody over the child when the parents are proven to be unfit to take care of the child. Art 216 of the Family Code provides that, “In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214; (b) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (c) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.” Note that in the issue of custody, it varies whether the child is a minor, legitimate, or illegitimate child. 


While legitimate children are under the custody of both the mother and the father, illegitimate children, on the other hand, are under the custody of the mother only, as stated in Art 176 of the Family Code, “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.” 


For a minor, Section 14 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors provides for the factors to consider in determining custody. To wit, “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: (a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contract 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;…


Need further information and assistance regarding voluntary customary agreement? Talk to our team at Duran & Duran-Schulze Law to know more about the requirements and process. Call us today at (+632) 8478 5826 or send an email to for more information.

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