• Legal basis for custody of an illegitimate child

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I have a son with my ex-girlfriend.  I acknowledge my son and give him monthly support.  Recently, his mother demanded more support and threatened to hide the child from me and change the surname of the child. Can she really do that?  Also, is it possible for me to get the custody of my child?

    Dear Jin,
    It appears that you are not married to the mother of your child. If that is the case, your son is an illegitimate child, which also means that he is under the custody of his mother in accordance with Article 176 of the Family Code declaring, among others, 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…”

    There is an instance, though, where the father may get the custody of his illegitimate child from the mother.  It has long been recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration. Courts take into account all relevant circumstances that would have a bearing on the children’s well-being and development (Pablo-Gualberto vs. Gualberto, 461 SCRA 450). Thus, if the father can prove that the mother is unfit to care for the child, then the court may deny her of her custodial right and confer it to the father.

    To deny the mother of her custodial right, it must be clearly established that her moral lapses have had an adverse effect on the welfare of the child or have distracted her from exercising proper parental care. Neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease have all been made as basis for denying the mother of her custodial right (Pablo-Gualberto vs. Gualberto).

    Applying the foregoing to your case, you have to prove that the mother of your son is unfit to care for him before you can acquire custodial right. Absent clear evidence that the mother is unfit, the court will not grant you custodial right over your son.

    Nevertheless, you still have certain rights over the illegitimate child as his father. A father has the right to have access to his child, or what is referred to as visitation right.  This right may not be denied unless granting the same would be detrimental to the child. (Silva vs. Court of Appeals, G.R. No. 114742, July 17, 1997). Hence, even if you cannot get the custody of your son, your ex-girlfriend may not hide him from you.  If she persists on hiding your son, you may ask the court to compel her to respect your visitation right.

    As to your ex-girlfriend’s threat to change the surname of your son, she may not do so lightly.  In the case of Grande vs. Antonio, the Court declared that neither the father nor the mother has a right to dictate the surname of an illegitimate child. The right to decide which surname to use belongs to the illegitimate child himself or herself (G.R. No. 206248, February 18, 2014). Hence, either parent at his or her whim cannot change the surname of an illegitimate child.  It is the child who has the prerogative to exercise the right to change his or her surname when he or she attains the proper age to do so.

    We hope you find the foregoing opinion helpful.  Bear in mind that this opinion is based on the facts you presented and our appreciation of the same.  Our opinion may vary should actual facts and circumstances change.

    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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