Dear Atty. Duran-Schulze,
I have a child out of wedlock, I’m an OFW, may the father of the child get custody?
It depends. As a general rule, an illegitimate child should be under the parental authority of their mother notwithstanding the father’s recognition. Article 213 of the Family Code states no child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. In Gualberto v. Gualberto, the Court held that this is an express statutory recognition that, as a general rule, a mother is to be preferred in awarding custody of children who are under the age of seven (7).
To remove the child from the mother’s custody, the case of Briones v. Miguel states that only the most compelling reason is the mother’s unfitness that will justify her deprivation of the authority and custody over the child and may award the custody to the father.
In determining the unfitness of the mother, the case of Alag Jr. v. Villamor reiterated the following causes that may deprive the mother of her right over the custody of the child:
- Neglect or abandonment
- In Briones v. Miguel, the court explained that leaving to work in another country does not constitute neglect or abandonment to deprive the mother of custody over the child.
- Unemployment, immorality
- Habitual drunkenness
- Drug addiction
- Maltreatment of the child
- Insanity, and
- Affliction with a communicable disease.
Absent these compelling grounds, the parental authority and award of custody stays with the mother.
Need further information and assistance? Talk to our Legal team at Duran & Duran-Schulze Law. Call us today at (+632) 8478 5826 or send an email to [email protected] for more information.