Dear PAO,
I have a child out of wedlock. He is recognized by his father and in fact uses his father’s surname. Since he was recognized, is it true that his father can get the custody of my son from me?
Almira

Dear Almira,
Under the law, a child born out of wedlock is illegitimate. Being illegitimate, the parental authority over his/her person is vested in his/her mother. This is particularly provided by Article 176 of the Family Code of the Philippines, which provides:

“Article 176. 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. xxx”

Thus, the custody of an illegitimate child shall always remain with his/her mother. This is his/her mother’s inherent right, which the latter cannot be denied of, unless there is a compelling reason which renders her unfit to exercise such right. As held in the case Joey Briones vs. Maricel Miguel et al. (G.R. No. 156343, October 18, 2004), the Supreme Court pronounced the following:

“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.”

The act of recognizing an illegitimate by the father gives rise only for the opportunity to obligate the latter to give support to the child but it does not bestow upon the father the right to demand the custody of the child. In all, your child’s custody shall remain with you even if his father acknowledged him as his child, unless he can prove that you are unfit to perform your duties and obligations as the sole custodian 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 This email address is being protected from spambots. You need JavaScript enabled to view it.