Custodial issues or parental authority over an illegitimate child

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Persida Acosta

Dear PAO,
My illegitimate daughter with Andrew was born in 2005. Andrew left the country in 2006 to work as an engineer in Dubai. We eventually parted ways in the same year because he admitted to me that he found another girl in the same country. He came home last month, and he initiated a complaint before the barangay (village) where I am residing in order to gain custody of my daughter. To my surprise, my daughter, who is now 12 years of age, chose Andrew when she was asked during the confrontation at the barangay. Andrew now insists that he should take custody of our daughter since the latter chose him. Please guide me on this matter.
Pilipinas

Dear Pilipinas,
Article 209 of the Family Code of the Philippines states that “pursuant to the natural right and duty of the parents over the person of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.”

Relative thereto, Section 1 of Republic Act 9255 provides that:

“Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”


Thus, the general rule is, the parents exercise parental authority over the child. Republic Act 9255, however, clearly provides that an illegitimate child shall be under the parental authority of the mother unless the latter is unfit. Since your illegitimate daughter is already 12 years of age, she may choose who among the parents she wants to stay with, provided the same will serve her welfare. This finds support under Article 213 of the Family Code of the Philippines, which states that “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. No child under seven years of age shall be separated from the mother unless the court finds compelling reason to order otherwise.”

Please be guided by the decision of the court in the case entitled Tonog vs. CA and Daguinol (G.R. No. 122906, February 7, 2002), where former Supreme Court Justice Sabino de Leon Jr. stated:

“For these reasons, even a mother may be deprived of the custody of her child who is below seven years of age for compelling reasons. Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and affliction with a communicable illness. If older than seven years of age, a child is allowed to state his preference but the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person.”

Applying the above decision to your situation, the custody of an illegitimate child shall be given to the mother unless she is shown to be unfit. The choice of your 12-year-old daughter may be considered provided her choice will serve her best interest and the parent is not unfit.

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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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