Illegitimate child’s best interest primary concern in custody issue



Persida Acosta

Dear PAO,
My daughter had an illicit relationship with a married man named Rubio. She got pregnant and delivered a baby boy. She, however, died after she gave birth at the hospital because of complications. Rubio acknowledged my grandson, and he affixed his signature on the certificate of live birth of the baby. I told Rubio that I will take custody of the child because I know that a problem will arise if he will take his son to his legitimate family. Rubio, however, insisted that custody belongs to him since the mother is already dead, and he had acknowledged the child and affixed his signature on the certificate of live birth. Please guide me on this matter.

Section 1 of Republic Act (RA) 9255, or the Family Code of the Philippines, which amended Article 176 of Executive Order 209, provides:

“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.

Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”

Thus, the general rule with respect to parental authority over an illegitimate child belongs to the mother, hence, she is also entitled to sole custody with due consideration of the best interest of the child. It is best to emphasize once again that the yardstick by which policies affecting children are to be measured always give paramount consideration to their best interest (Grande vs. Antonio, G.R. No. 206248, February 18, 2014; ponente, Associate Justice Presbitero Velasco Jr.).

Rubio’s claim that custody over his illegitimate son belongs to him because he had acknowledged or affixed his signature on the birth certificate of the child has no legal basis. In fact, in the case entitled David vs. Court of Appeals (G.R. No. 111180, November 16, 1995, Supreme Court), former Associate Justice Vicente Mendoza ruled that “the fact that private respondent has recognized the minor child may be a ground for ordering him to give support to the latter, but not for giving him custody of the child.”

Article 212 of the Family Code of the Philippines states:

“In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.”

The stated provision of law may support the awarding of custody of the illegitimate child to Rubio subject again to the condition that such situation will be best for the child. There are also instances where the grandparents may exercise parental authority over their grandchildren and this is found under Article 214 of the law:

“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.”

Applying the above-enumerated provisions of law and jurisprudence in your case, the custody of the child may be awarded to you, or Rubio or even to another person appointed by the court provided it will serve the best interest of the child.

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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