I have a 9-year-old daughter. I am not married to her mother and we have been separated since she was four years old. I only see her whenever I come here in Manila, as I have been residing in Cebu, because of work. This year I have been having great difficulty in seeing my daughter because of her mother’s boyfriend who has been meddling with our arrangements.
I just want to know if I can have the custody of my daughter, so that I can personally see to it that she is well taken care of. Anyway, her mother already has a life of her own, and I think it is not beneficial for her to be around with her mother’s boyfriend most of the time. She also told me that she would rather stay with me, because we spend time together unlike her mother who is either working or with her boyfriend.
While we understand that you are concerned with your daughter and it is your desire to take care of her, please be informed that parental authority and custody over her rests on her mother given that she is an illegitimate child. This is in consonance with Article 176 of the Family Code of the Philippines, as amended by Republic Act (R.A.) No. 9255, which provides that:
“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. x x x” (Emphasis supplied)
Your daughter’s custody may only be turned over to you or to another person if the court finds compelling reasons to remove such parental authority and custody from her mother, or when it is deemed for the best interest of the child that such parental authority and custody be given to another.
In addition, we wish to emphasize that the choice of illegitimate children, as to whom they wish to live with, will not hold a great deal of weight. Article 213 of the said law, which states that:
“In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit x x x”
only applies to legitimate filiation. Insofar as illegitimate children are concerned, the matters as to their custody as well as the exercise of parental authority over them, regardless of their personal choice, remain with their mothers as embodied in R.A. No. 9255.
Nevertheless, you may opt to file a petition in court in order to formally seek and delineate your visitorial rights over your minor illegitimate daughter. As penned by former Chief Justice Artemio Villaseñor Panganiban, Jr. in the case of Briones vs. Miguel (G.R. No. 156343, October 18, 2004),
“x x x
We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of Appeals,34 the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children. Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.
x x x”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts 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 firstname.lastname@example.org