My husband and I are separated in fact and he refuses to give me our four-year-old son. I want to have custody over our child. Please help me.
In order to have custody of your son, you need to file a verified petition for custody before the family court of the place where you reside or where your minor son may be found (Section 3, Rule on Custody of Minors). You have to allege in your petition the following: 1) your personal circumstances and that of your husband; 2) the name, age and present whereabouts of your son and the fact that he is your legitimate child with your husband, who shall be designated as the respondent in your petition; 3) the material operative facts constituting deprivation of custody; and 4) such other matters which are relevant to the custody of the minor (Section 4, Rule on Custody of Minors).
After the respondent has filed his answer to your petition or after the expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody: a) both parents jointly; b) 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; c) 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; d) the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; e) the actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or f) 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). However, the court shall also provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified (Section 15, Rule on Custody of Minors).
After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor (Section 18, Rule on Custody of Minors). 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 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). However, it should also be noted that pursuant to Paragraph 2, Article 213 of the Family Code of the Philippines, no child under seven years of age shall be separated from the mother unless the court finds compelling reason to order otherwise.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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