My brother got married in 2006. He and his wife are both OFWs in Hong Kong. When my sister-in-law gave birth to their daughter, they only stayed here in Manila for three months and left soon after to go back to their respective jobs. Their daughter was left under the care of my sister-in-law’s mother. Unfortunately, my sister-in-law passed away in 2013. My brother brought her remains here so that her family can pay their last respects. Weeks after her burial, my brother expressed to his mother-in-law his desire to get his daughter. He was offered a job in Cebu and, although it was rather a low-ranking position, he accepted it thinking that if he migrates there with his daughter, she will not have a hard time adjusting. To his shock, his mother-in-law refused to give his daughter. Afraid that he might lose a good opportunity, he moved to Cebu alone.
Now that he is stable with his job and found a decent house for him and his daughter, he informed his mother-in-law that he will be getting his daughter. To his dismay, she again refused saying that she has a better right over her since she is the one who took care of her since she was born. Is this correct? Is it not the other way around since my brother is the child’s father? What remedy is available for my brother?
Under the law, the father and the mother are given the right to jointly exercise parental authority over the persons of their common children. The father’s decision prevails in case of disagreement, unless there is a judicial order to the contrary (Article 211, Executive Order 209 or the Family Code of the Philippines). In case of absence or death of either parent, the parent present shall continue exercising parental authority (Article 212, Ibid.)
Applying the foregoing rules in the situation of your brother, we believe that it is incorrect for his mother-in-law to claim that she has a better right over his daughter. While it may be true that she personally knows the child better than your brother considering that she has taken care of her since she was born, it is not the decisive or controlling factor to be considered in determining who has better right over the custody of the child. The law will still prevail and, since he is the parent present, he should not be prevented from exercising parental authority over his daughter.
Further, it bears stressing that substitute parental authority is only granted to the child’s surviving grandparent in case of death, absence or unsuitability of their parents. (Article 214, Id.) Since there is no clear showing that your brother is unfit or unsuitable to care for his child, then he cannot be deprived of the parental authority granted by law. He may opt to file a petition for habeas corpus if his mother-in-law will refuse to turn over the child.
Our Supreme Court has also held in the case of Santos Sr. vs. Court of Appeals (G.R. No. 113054 March 16, 1995) that:
“x x x The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs. It is a mass of rights and obligations that the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. On parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor. x x x
The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. The child’s welfare is always the paramount consideration in all questions concerning his care and custody. x x x
x x x Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here. x x x”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org