Mothers should have custody of illegitimate children

Persida Acosta

Persida Acosta

Dear PAO,
Can my ex-boyfriend get the custody of our child? According to him, since our child used his surname, he is then the rightful parent to take custody of our child.

Dear Kailyn,
The status of a child born out of wedlock is illegitimate. Being illegitimate, parental authority over his/her person is exclusively exercised by his/her mother. Likewise, the child shall use the surname of his/her mother, but if he/she was acknowledged by his/her father, he/she may use the latter’s surname. This is according to Article 176 of the Family Code of the Philippines, which 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. 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. xxx”

Clearly, the mother of an illegitimate child shall always enjoy the right to take the custody of the child. This is her right which cannot be denied from her, it being part and parcel of her parental authority over the child. Save for those compelling reasons which render her unfit to exercise the same. The Supreme Court in the case of Joey D. Briones vs. Maricel P. Miguel et al. (G.R. No. 156343, October 18, 2004) had the opportunity to enumerate these compelling reasons, to wit:

“Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.”

On the other hand, the act of a father recognizing his illegitimate child gives him the right to see or at least visit the child especially so if he is extending financial support to the child. It does not however bestow upon him the right to demand the custody of the child.

Thus, your child shall remain in your custody even if he/she was recognized by his/her father and he/she is using the latter’s surname, unless the father can prove that you are unfit to perform your duties and obligations as the sole custodian of the child and he was given the custody of your child in relation to the abovementioned instances.

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


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