• Exceptions to mother alone having custody of illegitimate child

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I had a baby with my girlfriend. I signed the birth certificate, but we have separated since then. We somehow share custody of the baby since I get her during weekdays and return her to her mother on weekends. Recently though, my ex began to shut me out. I found out she was already living with another man and having another baby with him. My question is: What are my rights and obligations as the father of our child? Can I get custody of our baby?

    Dear Jack,
    As a general rule, it is the mother who has custody and parental authority over a child who is born out of wedlock. Article 176 of the Family Code states 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 . . .”

    According to the this article, illegitimate children shall use the surname of the mother and shall be under the parental authority of the mother. But an illegitimate child who has been expressly recognized by the father through the child’s birth certificate or through an admission in a public document, such as an affidavit or a private handwritten instrument, may use the surname of the father. The child is also entitled to support from both parents.

    It is clear then, that the father of an illegitimate child is obliged to support the child. He may also allow the child to use his surname. As for parental authority, which includes custody, it shall remain with the mother.

    This is of course not without exceptions. The Supreme Court has enumerated instances when a mother may be deprived of the custody of her child, but these are only the most compelling of reasons. In Briones vs. Miguel (G.R. No. 156343, October 18, 2004), the court said:

    “Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and affliction with a communicable disease.”

    If any of the foregoing exceptions apply to your case, you may file a Petition of Custody with the court where you reside or your child resides to gain custody of your child.

    We hope that we were able to enlighten you on the matter. 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 dearpao@manilatimes.net


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    1 Comment

    1. Dear Pao,

      My ex-boyfriend signed the birth certificate of my baby. can i changed the surname of my baby? my ex-boyfriend is failed of giving financial support to my son and he is having in a relationship to others already. Thank you and Godbless