Voluntary Custody Agreement

Dear Atty. Duran-Schulze, 

What documents and provisions under the law of the Philippines would need to be provided in order to establish a valid voluntary custody agreement?


Dear Liam,

As a general rule, the father and the mother shall jointly exercise parental authority over the persons of their common children. However, insofar as illegitimate children are concerned, illegitimate children shall be under the sole and exclusive parental authority of their mother. (Article 176 of the Family Code.)

In the case of Masbate v. Relucio (G.R. No. 235493), the Court ruled that “mothers are consequently entitled to keep their illegitimate children in their company, and the Court will not deprive them of custody, absent any imperative cause showing the mother’s unfitness to exercise such authority and care.”

Under Philippine law on custody, no children under seven years of age shall be separated from the mother unless the courts find compelling reasons to order otherwise.

The father can only assume custody and authority over the minor child when the mother defaults. (Briones v. Miguel, G.R. No. 156343, October 18, 2004) The recognition of the father of an illegitimate child would be a ground for ordering the latter to give support to, but not the custody of the child. 

The above-situation does not preclude the mother and father of the illegitimate child to enter into a custody agreement, subject to the approval of the Court. In order to establish grant of custody of a minor to the father, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents. 

In order to further support the custody case, there is a need to present the following basic requirements: PSA Birth Certificate and proof of paternity such as Affidavit of Paternity and any other proof, if illegitimate; Summary of your income, properties and proof of your financial capacity such as titles, bank accounts, etc.; and Clearance of No Pending Criminal Cases

Take note further that, in order for the illegitimate child to travel outside the Philippines, the Department of Social Welfare and Development (DSWD) will require a travel clearance, which needs to be applied and signed by the mother. However, if a Court Order has granted parental authority to the father, a DSWD travel clearance is not required (DSWD Administrative Order No. 12, Series of 2017, Omnibus Guideline for Minors Traveling Abroad).

Need further information and assistance?  Talk to our Legal team at Duran & Duran-Schulze Law. Call us today at (+632) 478 5826 or send an email to info@duranschulze.com for more information.

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