Mother should have custody of illegitimate child

Persida Acosta

Persida Acosta

Dear PAO,
I have a four-year-old daughter whose custody is being withheld by her father. We are not married but my daughter is using his surname. Who has the rightful custody of my daughter? What shall I do to immediately recover my daughter?

Dear R.M.,
Section 1 of Republic Act (R.A.) Act No. 9255 expressly grants sole parental authority to the mother of an illegitimate child, to wit:

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows:

“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. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

Your daughter is an illegitimate child since you are not married to her father. As such, you shall have the sole parental authority over her. In the exercise of such parental authority, you shall naturally be entitled to have the custody over the person of your daughter.

The father of your daughter shall not deprive you of your right to custody in the absence of compelling reasons showing your unfitness to exercise parental authority and custody. Some of the grounds which are considered as ample justification to deprive a mother of the custody over her minor child are the following: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease (Briones vs. Miguel, G.R. No. 156343, October 18, 2004).

To recover the custody of your illegitimate child, you have to file a Petition for Habeas Corpus before the Family Court, or in its absence, at the proper regular court of the place where your daughter is presently located. You may also file the Petition for Habeas Corpus before the Court of Appeals or the Supreme Court if the whereabouts of your daughter is unknown or if she is being transferred from one place to another. If the Petition for Habeas Corpus is granted by the Court of Appeals and Supreme Court, the same shall be enforceable anywhere in the Philippines (Section 2, Rule 102, Rules of Court).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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