Dear Atty. Duran-Schulze,
As an illegitimate child, the sole custody must be to her mother, is that right atty.?
Yes, the sole custody of an illegitimate child falls on her mother. Article 176 of the Family Code declares, among others, 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…”
Under the law, illegitimate children shall be under the parental authority of the mother. 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 law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor. (Briones v. Miguel, G.R. No. 156343, October 18, 2004)
The welfare of the minor is always of paramount consideration. Thus, the Father may also claim custody of his illegitimate child. Courts take into account all relevant circumstances that would have a bearing on the children’s well-being and development (Pablo-Gualberto vs. Gualberto, 461 SCRA 450). Thus, if the father can prove that the mother is unfit to care for the child, then the court may deny her of her custodial right and confer it to the father.