My husband died last year leaving with me our five minor children. However, immediately after his burial, his parents took custody of our children because they said that I cannot raise the children on my own. I tried to refuse but I was threatened by my father-in-law, who is a retired police officer, that if I insist, something bad might happen to me. Besides, he said, the children were entrusted to them by my husband before he died and I don’t have the capacity to raise them. Can I still recover the custody of my children?
The right to the custody of legitimate children is vested in the parents who likewise exercise parental authority over them. Parental authority according to the Family Code of the Philippines is defined as follows, to wit:
“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.”
Clearly, the right to the custody of legitimate children is subsumed in the rights and obligations of parents over the persons of their children, which is denominated as parental authority according to the abovementioned law.
Applying the foregoing to your situation, being the mother of your children, you alone have the right to exercise parental authority over them, considering that their father is already dead. Between you and their paternal grandparents, it is you who shall have the right to their custody.
The assertion of one of the paternal grandparents of your children that it was them who were entrusted by your deceased husband of the custody of your children is of no moment even if it is true. Parental authority cannot be renounced or transferred to anybody except by the express provision of law. This was explained by the Supreme Court in the case of Leouel Santos, Sr. vs. Court of Appeals, and Spouses Leopoldo and Ofelia Bedia (G.R. No. 113054, March 16, 1995), to wit:
“The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs. It is a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.
“Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.”
Thus, the law is explicit that as a mother, you have a better right to take the custody of your children over their paternal grandparents. You may enforce this right through a court action should the latter insist on their continued custody of the children.
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