Minor children: Custodial concerns

Persida Acosta

Persida Acosta

Dear PAO,
My husband and I made an agreement before the barangay (village) that the custody of our children shall be given to me. I just learned, however, that he filed a case in court and wanted our children to be in his custody. My children are 10 and 12 years old already and they both want to stay with me. Will my husband be able to get the custody of our children from me? Will the court consider our agreement before and the choice of our children?

Dear Jocelyn,
As a rule, the father and the mother shall jointly exercise parental authority over the persons of their common children (Article 211, Family Code of the Philippines). In case of separation of the parents, parental custody shall be exercised by the parent designated by the court (Article 213, Family Code of the Philippines).

To be able to determine who between you and your husband is entitled to the custody of your children, the court shall consider the best interests of your minor children and shall give paramount consideration to their material and moral welfare. The best interests of the minors refer to the totality of the circumstances and conditions that are most congenial to the survival, protection and feelings of security of the minors encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minors. Your agreement with your husband before the barangay wherein you were given the custody of your children and the preference of your children who are both over seven (7) years of age shall be given consideration in awarding custody. In addition, the court shall also consider the following factors: 1) the desire and ability of one parent to foster an open and loving relationship between the minors and the other parent; 2) the health, safety and welfare of the minors; 3) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minors, including anyone courting the parent; 4) the nature and frequency of contact with both parents; 5) habitual use of alcohol, dangerous drugs or regulated substances; 6) marital misconduct; 7) the most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minors (Section 14, Rule on Custody of Minors).

If the court, however, finds that both of the parents are unfit to have the care and custody of their minor children, the court may designate either the paternal or maternal grandparent of the minors, or the father’s oldest brother or sister, or any reputable person to take charge of such minors, or commit them to any suitable home for children (Section 18, Rule on Custody of Minors).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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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  1. Atty. Roslee M. Formoso on

    In child custody “paramount is the welfare and interest of the child”. Same as with adoption of minors very near requirements( refer to SP RC). In a S.C.decided case, the child was placed in the witness stand to chose between the parents and grandparents. Child seven years and under cannot be separated from the mother. Prostitution is NOT considered by law as a compelling reason to separate the child from the mother.

  2. Dear PAO Precy,

    May I add, in most cases if not in all cases of child custody it is all “questions of facts”, after the age of seven. Who parent shall serve to the best interest of the child and sometimes the child or children themselves are asked by the court to chose between parents and grandparents but to sum it , one that shall serve the best interest of the child, “paramount is the child’s interest.