Grandparents have parental authority over orphaned child

Persida Acosta

Persida Acosta

Dear PAO,
I have a brother who passed away with his wife in an accident. They left their 3-year-old child who is now with his grandparents. I am wondering if I can claim custody over my brother’s child since I have no child of my own and I believe I can sufficiently provide for the child. Is there any law specifying the rightful custodian of a parentless child? I hope you can enlighten me on my query. Thank you.

Dear Juan,
Under the Family Code, parental authority over a child is primarily vested to the father and mother of a child (Article 211). However, in instances such as in the situation you presented, wherein both of the parents of the child is either absent or incapacitated, the surviving grandparents shall have a substitute parental authority over such child as the law clearly states that:

“Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority” (Family Code of the Philippines).

It is clear from the above cited law that between you as an uncle and the child’s grandparents, it is the latter which have the parental authority over your now parentless nephew/niece. In fact, this preference for grandparents as the assigned relatives for exercising parental authority is again mentioned and further emphasized in another provision of the Family Code which states that:

“Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.”

Thus, despite your claim and belief that you can sufficiently support your orphaned nephew/niece, the fact remains that the law gives express preference to the child’s grandparents over other relatives as the designated persons who shall exercise substitute parental authority over an orphan.

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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