I have a live-in partner and we have two minor children. I posted on social media that I am no longer living with someone. I only did it because I was mad at her for being very selfish and irresponsible. She hangs out with her friends and workmates who are bad influences on her. She would come home in the wee hours of the morning, sometimes intoxicated with alcohol. She has also become very jealous of a girl I am exchanging text messages with, but there is no reason for her to be jealous. The girl is just my friend, and I have no intention of going beyond that. Just recently, she came home in the morning and hurriedly left the house. I have not heard from her for days. She merely sent me a text message saying that she will take our children and bring them to Laguna where her mother lives. To be honest, I do not want to give her our children because they do not have their own house and there was even a demand for her mother to vacate their place of dwelling. Unlike me, I have my own house and our children have been living there since they were born. Her family is now threatening me. What can I do to legally gain custody of our children?
Our laws recognize the right of both the father and mother in exercising parental authority over their children. Article 211 of the Family Code of the Philippines expressly provides: “The father and the mother shall jointly exercise parental authority over the persons of their common children.”
It bears stressing, however, that parental authority over illegitimate children is granted by law to their mothers. Section 1 of Republic Act No. 9255, which amended the provisions of Article 176 of the Family Code of the Philippines, states: “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. x x x” A mother may only be denied of such parental authority and custody over her illegitimate children if there are compelling reasons to grant such denial.
For this reason, it is essential for you to file a petition for custody over your two minor illegitimate children in order for you to obtain the legal authority to care for and rear them. The petition must be filed with the Family Court of the province or city where your minor children may be found. During the hearing of your petition, it is essential for you to establish that there are compelling reasons to deny your former live-in partner the custody of your children. The fact that they do not have their own house may not be sufficient to deny her such custody. Neither is occasional drinking or hanging out with friends. It must be of such nature as would render her seriously incapable of taking care of your children and attending to their needs. As ruled by the Supreme Court in the case of Perez vs. Court of Appeals (255 SCRA 661), the following may be considered as “compelling reasons” for the denial of the mother’s custody of her children: “neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction of communicable illness.”
In addition, it is necessary for you to prove that you are the most suitable to rear the children, taking into consideration their material and moral welfare as well as their best interest. Under the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors, “best interest” is defined as “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, A.M. No. 03-04-04-SC).
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