When can the mother of a child be deprived of custody?

The general rule is no child under seven years of age is allowed to be separated from his or her mother. Under Article 213 of the Family Code “no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” This is also known as the “tender-years-rule” or “maternal preference rule.”

The rule becomes more pronounced in situations involving illegitimate children, as the law clearly states that illegitimate children should be under their mother’s parental authority. A situation wherein a mother has left her child indefinitely or permanently under the care of others or surrendered the child entirely is a strong basis for a parent’s abandonment.

Is the maternal preference rule absolute?

The maternal preference rule or tender-years-rule is not absolute. A mother may be deprived of the custody of a child below seven years of age due to compelling reasons, such as:

  • Neglect
  • Abandonment
  • Unemployment
  • Immorality
  • Habitual drunkenness
  • Drug addiction
  • Maltreatment of the child
  • Insanity
  • Affliction with a communicable illness

Regardless of a parent’s actual intention, careless and negligent failure to perform parenthood duties is considered a significant element of abandonment.

Are there any laws that cover child custody for single mothers?

Article 176 of the Family Code provides that children born out of wedlock are considered illegitimate under the parental authority of the mother. The right and duty of a parent to bring up a child below 18 years of age is included under parental authority, and cannot be transferred or renounced except during cases allowed by law.

In addition to the Family Code, there’s also the “Solo Parents’ Welfare Act of 2000” or RA 8972.

Are minors automatically placed under the mother’s custody?

It depends on the situation. With married couples, the father and mother have joint custody of the child. In situations where there’s a disagreement between spouses, Article 211 of the Family Code states that the father’s decision prevails, unless there is a judicial order to the contrary.

In cases where the marriage is terminated by a declaration of nullity decree or annulment, a presumption in Article 102 (6) and Article 129 (9) in the Family Code states that unless the court decides otherwise, children below seven years of age is deemed to choose the mother. In all cases, the court will take the best interests of the child into consideration when making its decision.

Single mothers have sole parental authority over her child. The father cannot be deprived of parental rights to the child in case this is his decision (including temporary custody over the child).

What legal actions are available for single mothers whose child is taken away without consent?

A single mother can opt to file a criminal and/or civil case under “The Anti-Violence Act against Women and Children” (RA 90262). Filing a kidnapping charge under the Revised Penal Code is also an option.

In cases where the father, who was given access, takes a child away while neglecting terms under which he was granted access, the single mother can file a petition for contempt or sue him under RA 9262.

Talk to Duran Duran-Schulze Law today at info@duranschulze.com or (+632) 478 5826.