What are the custody rights of an illegitimate child’s father?

Custody rights is often a matter discussed when a child’s parents have legally separated or annulled their marriage. It also takes center stage in cases of children borne out of wedlock.

In this blog post, we will tackle the topic of custody and whether or not the father of an illegitimate child can exercise or assume parental authority or custodial rights. In most jurisdictions, the mother of a child born out of wedlock is automatically granted custody and parental authority over the child.

However, this does not necessarily mean that the father has no rights when it comes to parenting the child.

In many cases, a father can still establish his parental rights through a legal process called legitimation. Legitimation is the legal process through which a father acknowledges his illegitimate child and establishes his rights and responsibilities as the child’s parent. This process usually involves the father filing a petition in court to establish paternity, followed by a formal acknowledgment of the child as his own. Once legitimated, the father may be granted visitation rights and, in some cases, even custody of the child.

It’s important to note that the laws regarding legitimation and parental rights vary from state to state and from country to country. It’s crucial for fathers seeking to establish parental rights for their illegitimate child to seek legal counsel to understand the specific laws and processes in their jurisdiction.
In some cases, even if a father has not legitimated his child, he may still be granted visitation rights or even custody if it is determined to be in the best interest of the child. This often involves the court considering factors such as the father’s relationship with the child, his willingness to provide financial support, and the stability of his living situation.

In conclusion, while the mother of an illegitimate child is often granted automatic custody and parental authority, the father can still establish his parental rights through a legal process such as legitimation. It’s crucial for fathers in this situation to seek legal guidance to understand their rights and responsibilities regarding custody and parental authority. 

Key notes on child custody in the Philippines

  • You can’t separate a child from his or her mother. 
    Under Article 213 of the Family Code, children under 7 years of age are under the parental authority of their mothers. This rule extends to illegitimate children. The mother, however, can lose her custody rights and parental authority if she is deemed by the state unfit to raise her child. These “compelling reasons” include unemployment, neglect, and failure to accomplish parental duties. Prostitution, unfaithfulness, and the mother’s sexual orientation are not considered grounds to remove a child from his or her mother’s custody unless evidence suggests such an environment is detrimental to the child’s development.
  • The child can influence decisions regarding custody. 
    If the child is at an age where he or she can make intelligent choices, his or her preferences and best interests can trump procedural rules.

    According to family law, if the child is at an age where he or she can make intelligent choices, his or her preferences and best interests can trump procedural rules. The family code states that the father of the illegitimate child may have parental authority over the child, including legal custody and visitatorial rights. Duran & Duran-Schulze Law specialize in family law and can assist in cases where the father of the child seeks to have parental authority over an illegitimate child recognized by the father.

    Under the law, the father of the illegitimate child has inherent and natural rights, and the law firm can help in asserting these rights. In cases where the mother has sole parental authority, the father can seek custody over an illegitimate child and contribute to the child’s upbringing through child support. The legal team at Duran & Duran-Schulze Law can provide guidance on the rights of a father over his illegitimate child and help in achieving full custody or visitatorial right.

You can watch more about child custody rights in the Philippines on our podcast


Does a father have custody rights over his illegitimate children?

It will depend. 

Article 176 of the Family Code clearly states that, “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…“

From that statement, we can surmise that the mother has custody rights and parental authority over her illegitimate child. 

The child’s father, however, can get custody rights if it is proven that the mother can’t provide a safe and loving environment for her legitimate child. In some cases, the father may be able to petition the court to give the child to him if he can demonstrate that he has the means to provide a stable and nurturing home. 

Instances where the court can decide to deny the mother of her custodial right and give it to the illegitimate child’s father are as follows:

  • Failure to exercise parental care
  • Drug addiction
  • Maltreatment of the child
  • Immorality
  • Insanity
  • Unemployment
  • Neglect
  • Abandonment

In cases where the mother is abroad and unable to care for her child, the court won’t deny her of her custody rights and grant it to the father.

Does the father have any rights over his illegitimate child?

Yes, definitely. For one, the father of an illegitimate child must have the right to access his child (visitation right). Under Philippine law, the biological father of a minor child has the right to visit and take care of the child, even if the parents are estranged. The family code of the Philippines grants the father the visitorial right to ensure the well-being of the child.

However, this visitorial right does not grant the father sole custody of the child or to keep the child under his custodial right. The parental authority of the mother still holds under the same family code. The natural right of parents over their children is recognized, and neither family law nor the courts allow the father to deprive him of custody or take the child away from the mother, unless he files for custody and the court grants it based on the best interests of the child.

The father will only be denied his visitation right if such meetings between father and child are deemed detrimental to the child’s well-being.

When it comes to the surname of the illegitimate child, the father or the mother can’t dictate the child’s last name. Only the child himself or herself has the right to decide which surname to take when he or she becomes of age. But for the mean time, illegitimate children shall bear the surname of their mothers.

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