Child custody – Illegitimate

Dear Atty. Duran-Schulze,

I am an OFW with a child, whom I left with my partner back in the Philippines. We are not married and he has another girlfriend now. I knew this fact 4 months after I went abroad. How to get my child back?

Dear writer,

Since you and your partner are not married, the child is considered illegitimate. Under Article 173 of the Family Code, the general rule is that illegitimate children are under the sole parental authority or custody of the mother. In fact, the Court ruled in Masbate v. Relucio (G.R. No. 235493) 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.”

Moreover, Article 213 states that “No child under seven years of age shall be separated from the mother unless the court finds compelling reason to order otherwise.” According to Pablo-Gualberto v. Gualberto V (G.R. No. 154994), the following are examples of “compelling reasons” to deprive custody from a mother over her child under seven years of age: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.

In your case, as the mother, you have the sole parental authority over your illegitimate minor child, unless there is a compelling reason that you are unfit to exercise such authority and care. If there is no such compelling reason, you can file a petition for custody of your child against your former partner.

Aside from filing a petition for custody, you may also seek the assistance of the DSWD in the place where your minor child is located. The DSWD officers can intervene and mediate as to your case.

We hope we are able to answer your query. Please be informed that the foregoing legal opinion is based solely on the facts that you have provided us and our appreciation of the same. In case you need further assistance, our firm is open and ready to assist you. Thank you.