• Court may divest mother of authority over her illegitimate child

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    Dear PAO,
    I am a father of three boys, ages 4, 7 and 9, with my former girlfriend. My children are with me right now because their mother abandoned them three years ago. Just last week, their mother appeared and tried to get them. Of course, I did not allow this to happen. But their mother threatened to sue me if I will not give the children to her. Can my ex-girlfriend recover the custody of our children from me? What do I do?
    Philip

    Dear Philip,
    As can be inferred from your letter, you and the mother of your children are not married, that being so, your children are illegitimate. This is because a child born out of wedlock is illegitimate (Article 165, Family Code of the Philippines).

    Under the law, only the mother of an illegitimate child is vested with parental authority over the person of the said child. It follows therefore that the right to take his/her custody as a consequence of that authority shall be exercised exclusively by the mother. Thus, in your case, since your children are illegitimate, their mother alone enjoys the right to take their custody, which she can lawfully demand if the same is denied from her.

    Be that as it may, no less than the Supreme Court of the Philippines enunciated that the parental authority of a mother over the person of her illegitimate child may be taken away from her and awarded to another person due to some compelling reasons such as neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease that would render her unfit to perform her duties as the custodian of the child (Joey D. Briones vs. Maricel P. Miguel, G.R. No. 156343, October 18, 2004).

    In this regard, although under the aforementioned law, it is the mother of your children who enjoys the right over their custody, you may nevertheless have her disqualified by the court and pray for the award of their custody to you, by proving that their mother is not competent to raise her children due to any of the reasons mentioned above.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

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