Grandparents cannot have custody over children when a parent is still living

Persida Acosta

Persida Acosta

Dear PAO,
My husband is a seaman. Every now and then he is out of the country to work abroad. One time, his parents visited our house and requested that I allow them to bring our two children to the mall, to which I consented. However, they failed to return the children. They told me that they were asked by my husband to take the custody of the children as he will be out of the country for good to be with his mistress. Can I get back the custody of my children?

Dear Elgie,
Parents are the very persons who are vested by law with parental authority over the persons of their legitimate children. Parental authority according to the Family Code of the Philippines is defined as follows:

“Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.”

Clearly, the right to the custody of legitimate children is part and parcel of the parental authority being enjoyed by the parents over the persons of their legitimate children.

It is worthy to note at this juncture that parental authority shall be jointly exercised by the parents of legitimate children. In the absence or death of either parent, the other parent who is present shall continue to exercise the same. (Articles 211 and 212, Ibid.)

Thus, in your situation, considering that your husband is away, you alone, being the mother of your children, have the right to exercise parental authority over them. Between you and their grandparents, you are the one who should have the right over the custody of your children. As such, you may enforce this right through a court action should they insist on their continued custody of your children.

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.

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


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