Mother has sole custody of illegitimate child

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Persida Acosta

Persida Acosta

Dear PAO,
I have a son out of wedlock. His father once threatened me of physical harm if I will not sign a document surrendering the custody of my son to him. If ever I will sign this document, can I still recover the custody of my son?
Veronica

Dear Veronica,
Your son, being born out of wedlock is illegitimate. Thus, he shall be under your sole parental authority. This is according to Article 176 of the Family Code of the Philippines, which explicitly 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”

Likewise, according to the said law, parental authority refers to the parents’ natural rights and duties over the persons of their minor children to raise and rear them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being (Article 209, Ibid.).


It is clear that you alone enjoy the right to take the custody of your son. It being a part of the parental authority vested in you by law. Such right according to the law may not be renounced, waived or transferred to another person, except in the cases authorized by law. (Article 210, Id.)

It is noteworthy to mention at this juncture that Articles 228 and 229 of the said law enumerate the instances when parental authority terminates or may be transferred to another person, to wit:

“Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;
xxx

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;

(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

(4) Upon final judgment of a competent court divesting the party concerned of parental authority; or

(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.”

As can be gleaned from the foregoing, a written document waiving your right over the custody of your son is null and void, as this is contrary to the abovementioned provisions of law.

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 Comment

  1. I have neighbors who are of dual Can-Fil citizenship, whose son is also of dual citizenship. The son fathered a child out of wedlock in the Philippines. The child’s mother did not put down the name of the Can-Fil father in the birth certificate. In fact she registered her son under her own family name. She has full custody of the child.

    The family of the Can-Fil father asked the child’s mother to re-register the child under his name for in the future the child would want to immigrate to Canada, on account of being the son of a Canadian citizen. So far the child’s mother has not replied and has not expressed interest in doing so, creating a suspicion that he is not the father of the child.

    In the future, it would be a long and tedious process to prove the paternal link of the child to his Canadian father through documents in the Canadian consulate, unless maybe by DNA evidence. The consulate is wary of fake immigrants trying to immigrate to Canada, and therefore looks at applications like these with intense scrutiny.