Custody is an aspect of parental authority. The person who exercises parental authority over the child has custody over the said child. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. There are different rules for the custody of legitimate and illegitimate children.
Children are those conceived and born outside a valid marriage. The rules are relatively much simpler when it comes to custody and parental authority over illegitimate children — custody is with the mother. This rule applies whether or not the child is a minor. The father has visitation rights, as discussed below.
In general, parental authority (including custody) over legitimate children is shared by the father and mother. The Family Code provides that the father and the mother shall jointly exercise parental authority over the persons of their common children.
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. In other words, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. [See Basic Issues in Child Custody]
As noted above, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.
The law, however, favors the mother if she is a fit and proper person to have custody of her children so that they may not only receive her attention, care, supervision but also have the advantage and benefit of a mother’s love and devotion for which there is no substitute. Generally, the love, solicitude and devotion of a mother cannot be replaced by another and are worth more to a child of tender years than all other things combined. [See also Infidelity of the Mother in Child Custody Cases]
Parental authority is automatically suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.
On the other hand, parental authority may be suspended by the court, in an appropriate case where the parent or person who has parental authority:
These grounds are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.
The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated.
Parental authority of either or both parents may be terminated or suspended by order of the court. The grounds for permanently terminating parental authority are:
Custody and parental authority may also be terminated, subject to revival by the court in a proper case, in any of the following instances:
Visitation right, in family law, is the right granted by a court to a parent or other relative who is deprived custody of a child to visit the child on a regular basis. The details of visitation rights are determined by the court. In certain instances, as in the case of violence against women and their children, the father is deprived of visitation rights. [See Republic Act No. 9262]
[Sources: Family Code, Article 176, 209-233; Republic Act No. 9255; Grande vs. Antonio, G.R. No. 206248, 18 February 2014; Sy vs. CA, G.R. No. 124518, 27 December 2007]
Pamaos & Labao Law Firm (P&L Law) is a full-service professional legal firm, located in Metro Manila, Philippines | Telephone: (+632) 7799-0589 | Email: info@pnl-law.com | Website: http://pnl-law.com
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