My husband and I have an ongoing custody case over our minor daughter. Who shall have the custody of our child while the case is being heard?
Dear Troubled Mother,
As a rule, the husband and wife shall exercise joint parental authority over the persons of their common children (Article 211, Family Code of the Philippines). In case of separation of the parents, parental authority shall be exercised by the parent designated by the court (Article 213, Family Code of the Philippines).
A petition for custody may be filed by any person claiming to have a right to custody to determine the rightful custody of a minor. The party against whom the petition was filed shall be designated as the respondent (Section 2, Rule on Custody of Minors). While your petition for custody is being heard, the court may issue a provisional order awarding the custody of your daughter after an answer has been filed or after the expiration of the period to file it. In doing so, the court shall observe the following order of preference as far as practicable: 1) both parents jointly; 2) either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; 3) the grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; 4) the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; 5) the actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or 6) any other person or institution the court may deem suitable to provide proper care and guidance for the minor (Section 13, Rule on Custody of Minors). In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor (Section 14, Rule on Custody of Minors).
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.