• Regaining custody of one’s child

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I entrusted my son with my ex-boyfriend to my aunt and signed a document that I am surrendering to her the child’s custody. As I had no means then to raise the child on my own, I was forced to give him to my aunt. Now that I am financially able to raise my son, can I get the child back from my aunt?

    Dear Niomi,
    Your right to the custody of your child is part and parcel of your parental authority over the person of your child. Such right according to law may not be renounced or waived and transferred to another person, unless it is allowed by law. This is clearly provided by the Family Code of the Philippines, to wit:

    “Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.”

    The instances wherein parental authority is terminated and may be transferred to another person under the Family Code of the Philippines are as follows:

    “Art. 228. Parental authority terminates permanently:

    (1) Upon the death of the parents;


    “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.”

    It is clear that the document you signed is without force and effect of a valid agreement and thus, you may, at any time, regain custody of your child. The written waiver you made in favor of your aunt allowing her to take custody of your child is contrary to law, rendering it null and void. In the case of Leouel Santos, Sr. v. Court of Appeals (G.R. 113054 March 16, 1995), the Supreme Court explained this as follows:

    “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.”

    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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