I have a son with my live-in partner, May, who works in Canada. I used to work there, too. My employment contract, however, expired in 2015, so I had to go back, together with my son, to the Philippines to find another job. My relationship with May ended in December2015. May returned to the country in October 2016. When she visited us, she convinced me to lend our son to her for two weeks because she would like to spend some time to bond with him. But after two weeks, May could no longer be contacted on her phone, so I went to the house of her parents to get my son.
Her parents informed me that May went back to her work in Canada, and our son was entrusted to them. They also denied my request to see him. I filed a complaint before barangay (village) authorities but the conciliation failed. Will I gain custody of my child if I will file a petition in court? Is the absence of May in the country a ground to deny her the physical custody of our son?
Article 213 of the Family Code of the Philippines states:
“In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.”
The above-mentioned provision of the law established that a child below seven (7) years of age cannot be separated from the mother unless there are compelling reasons found by the court to deny her of custody.
In your situation, the custody of your illegitimate child who is below seven (7) years clearly belongs to May. Her physical absence because of her work is not one of the compelling reasons to deny her custody. In the case of Briones vs. Miguel et al. (G.R. No. 156343, October 18, 2004), the former Associate Justice Artemio Panganiban stated:
“There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the minor, is entitled to have custody of him. She has the right to keep him in her company. She cannot be deprived of that right, and she may not even renounce or transfer it except in the cases authorized by law.”
Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under seven years of age shall be separated from the mother, except when the court finds cause to order otherwise.
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 were 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.”
Applying the decision to your case, there is no compelling reason existing under the circumstances. May was not also shown to be unfit to exercise sole parental authority; hence, she cannot be denied custody of your son. But you can still have visitation rights, and that cannot be denied by May’s parents.
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 email@example.com