My husband and I have been separated for two years now. We are incompatible in so many ways that I sometimes wonder what made us decide to marry each other in the first place. We have already talked about support for our 5-year-old child and agreed that it will be shared by both of us, 70 percent from him and 30 percent from my end considering that I only work part-time as an insurance agent. I am thinking of coming up with an agreement with him so that I can retain the sole custody/guardianship over our daughter. Right now, we share custody of our child. If I am able to make him sign the agreement, will that secure me forever the custody of our child or can he question it later? I hope you can enlighten me on this.
Dear Ms. Understood,
Parental authority over minor children is jointly exercised by both parents. Should there be any disagreement, the decision of the father shall prevail, unless there is a judicial order to the contrary (Article 211, Family Code of the Philippines [FCP]).
The exercise of parental authority includes, among others, the right to have custody over the minor children, the duty to support, educate and instruct them by right precept and good example, provide for their upbringing in keeping with their means, impose discipline on them as may be required under the circumstances, as well as to represent them in all matters affecting their interests (Articles 220 (1), (5) and (7), FCP).
Insofar as legal guardianship over minor children is concerned, the same shall also be jointly exercised by the father and the mother. There is no need to secure appointment from the court given that the right is guaranteed by law. In case of disagreement, the father’s decision shall also prevail, unless there is a judicial order to the contrary (Article 225, FCP).
Accordingly, you and your husband share an equal right over the custody and guardianship of your 5-year-old daughter. Even if your husband signs an agreement allowing you to retain the sole custody and guardianship over your daughter, such agreement will not prevent him from invoking his right or deny him to exercise the very right guaranteed by our laws. Furthermore, an agreement of this sort is void because parental authority and responsibility over a minor child may not be renounced or transferred except in the cases authorized by law (Article 210, FCP).
This holds true even if you and your husband have already been separated for two (2) years. There is still a necessity for you to secure a lawful order from the court. The Family Code of the Philippines provides: “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. x x x No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise” (Article 210).
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 email@example.com