• Mother must have custody of children

    Persida Acosta

    Persida Acosta

    Dear PAO,
    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?

    Dear Rosa,
    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 dearpao@manilatimes.net


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    1. Alfred S Tingabngab on

      Dear PAO,

      First, I always visit your column in the virtual site of Manila Times to read and learn from the issues being presented by people who need the assistance of the law. I have learn much from the legal advises you give and such is greatly appreciated. I pray and hope that the PAO continue to be legal service to the Filipino people especially those who need the assistance of the law in seeking solutions to issues in life.

      Like all the others who consulted your office, I, too, seek your legal counsel. I got married sometime 1995 with a Municipal Mayor of Cavite officiating the ceremony. I was urged into the situation because my previous spouse got pregnant. She attempted to abort the baby and I became guilty s much so that I had to intervene by proposing marriage to her. We tried to work with the marriage that we both entered into but there was a feeling of being deceived into the marriage that constantly bothered me. I did my best to work it our with her to the point of again contracting another Church Wedding to assure her of my commitment to her. She bore me 3 kids.

      When she was given the opportunity to go to the United States with our kids considering her family and relatives were already US citizens, she filed for divorce and remarried there. I signed the divorce papers sent to me through parcel. I was and still am happy for her success in the US and in her finding her soulmate. She remarried in 2006 under US laws in a Protestant Church ceremony.

      As it is, I also have found my soulmate here in the Philippines. I only wish I could be enlightened on the legal process to ensure my eligibility to honor the person I love by marrying her. I do recognize that there is no divorce law in the country but I also do want to marry and be married to my special. She truly dreams to be married to me and I also want to give her that status.

      I hope your office can enlighten me on how pursue my dream of marrying the love of my life soonest.



    2. Good day. How about custody of illegitimate children? My fiancé left his previous gf because he caught her cheating on him. Ever since, he has been fighting for custody of their illegitimate child. She has a job but not enough to provide for better school, meds, etc. The child is not maltreated but the poor kid is sick almost all the time. Since she has a day job, the grandmother is taking care of the child. I believe my fiancé can nurture the kid better than her. His child throws tantrums everytime my fiancé returns him to his mother. I don’t see fairness in the family code, article 176. Are there cases where custody has been granted to the father?

      Please advise.