Who Gets Custody When Parents Separate?

Dear Atty. Duran-Schulze,

I just have a question regarding who will take care of our children? We are married with 2 kids, the eldest is 4 years old and the youngest is three years old. My wife will go to Dubai. The problem is, she will not let me take care of our two kids. Instead, she asked her brother to take care of the kids. I have a stable job and can provide for our kids. My wife and I are having a misunderstanding, and now, we’re not on good terms. We haven’t filed for an annulment yet. All I want is to have custody over my children since she will not be here. All I want is the best for our kids.

Answer:

Hi Thomas,

We refer to the provisions of the Family Code. Since you are married, your children are considered legitimate. The general rule is that legitimate children are under the joint parental authority or custody of the father and the mother.

However, given that you and your wife have already separated (separated in fact), the applicable law is Article 213 of the Family Code.

Article 213 provides that the custody of a child below seven years of age belongs to the mother. The same provision also provides that the mother can be deprived of the custody of the child below seven years of age due to “compelling reasons.” For a child above seven years of age, the custody shall belong to the parent chosen by the child concerned.

The Supreme Court has stated that the welfare of the minors is the controlling consideration on any issue involving custody of children. The rule was laid down by the Court in Unson III vs. Navarro (G.R. No. L-52242) and held that “in all controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.”

Based on the law, the default custody is with the mother of the child/ren. However, as the father, you may wish to contest this and file a custody case before the proper courts having jurisdiction over your minor children. Be advised however that you need to be ready to support your claim, i.e. financial documents, to show that you can provide support for your children, and that you can take care of them.

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.