I’m a mother of a 6-year-old illegitimate child. My daughter and I are both living with my parents. I broke up with my daughter’s father a few months after I gave birth. He and his family are not giving continuous financial support to my daughter, hence, I call it occasional support. I don’t have a job right now so my parents are the ones who are providing for us. I am now engaged and going to the U.S. through a K1/Fiancee visa to get married there in a few months. But I have decided to just let my daughter follow me in the U.S. after a year or two once everything is already settled, so that I can help her adjust when the time comes that she’s already there. My parents will take care of her temporarily while I’m away, but my responsibility as a parent will always be there because I love my daughter more than anyone.
Is there any chance that my daughter’s father can get my child’s custody while I’m in the
U.S.? I am being paranoid sometimes, because recently her father said that he still loves me and he is going to fight for his rights.
Since your daughter is illegitimate, by law, parental authority over her person is vested in you. This is explicitly provided by the Family Code of the Philippines which states:
“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”
Likewise, parental authority is defined as follows:
“Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.”
As can be gleaned from the aforementioned law, whoever is vested with parental authority over the person of a child shall take his/her custody. Considering that the law specifically designate you as the only parent who is vested with parental authority over your illegitimate child, it is only you who has the right over your child’s custody. This right cannot be taken from you unless there are compelling reasons to deprive you of such right and obligation as may be determined by the court. Thus, even if you are absent and cannot personally exercise such right, the father of your daughter cannot assume this right.
Likewise, only those persons mentioned by law may replace you in the exercise of this parental authority in the event that you cannot perform the same. The Family Code of the Philippines is clear about this:
“Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.”
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.