Mother gets custody of illegitimate son

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Persida Acosta

Persida Acosta

Dear PAO,
Can an illegitimate child below seven years old choose a parent in a child-custody dispute? My former boyfriend is hell-bent in getting custody of our five-year-old son and is doing everything to win the child. If ever he would file a case in court and my son chooses his father, would the court award the custody of our son to his father?
Tazha

Dear Tazha,
Under the law, an illegitimate child shall be under the sole parental authority of the mother. Article 176 of the Family Code of the Philippines 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. xxx”

Parental authority according to Article 209 of the Family Code of the Philippines is the natural right and duty of parents over the person and property of their minor children which include the caring and rearing of them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.


Thus, whoever exercises parental authority over a child has the right to the custody of the latter. In your situation, since your son is illegitimate, you alone have the right to keep the child. In the event that a case is filed in court to deprive you of your parental authority over your son, the same will not prosper unless it can be established that you are unfit to exercise such right. In the case of Nerissa Z. Perez vs. Court of Appeals (G.R. No. 118870, March 29, 1996), the Supreme Court enunciated the following:

“The general rule that a child under seven years of age shall not be separated from his mother finds its raison d’être in the basic need of a child for his mother’s loving care.

Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease. “

Insofar as the preference of the child is concerned, this rule is not applicable to your situation considering that the child is illegitimate. A child can only choose whom he/she prefers to stay with if his/her parents got separated and they both exercise parental authority over his/her person. In other words, the status of the child should be legitimate for this rule to apply.

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 dearpao@manilatimes.net

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