• Right to custody of child belongs to parents

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I am a single mother working as an OFW. When I left the Philippines, I entrusted the custody of my son to my parents even if his father can take care of him. The father of my son asked me if he can take custody of our son while I am away and I agreed to it but my family disowned me because of this issue and they said that the only way the father of my son can take custody of our son is for him to file a case in court. Is filing a case the only remedy left to us?

    Dear Anonymous,
    Facing a problem on child custody is heartbreaking. In your case, it is being fought between the biological father and the maternal grandparents while you (the biological mother) are a thousand miles away from your son, working to give him a better life.  In this situation, you may be trapped between your love and loyalty to your parents and your desire to give the father of your son the chance to be a parent to your child. In choosing which side to take, you and other mothers with this predicament, have to bear in mind the best welfare of the child.

    Guided by the principles as laid down by law, it is our opinion that as  between your parents and the father of your son, the latter, following the provisions of the Family Code on parental authority, has the preferred right to custody over your common child. The reason for the said preference is but obvious. Parents are obliged to keep their children in their company at all times. They have the duty to support and educate their children and give them love and affection, advice and counsel, companionship and understanding (Article 220, Family Code of the Philippines).

    From the facts that you have stated, considering that your parents are not amenable to give the custody of your child to the father of your son without any court order, the father of your son is left with no other choice but to file a Petition for Habeas Corpus before the court which has jurisdiction over the place where the alleged withholding of custody of your son is being made. It must be noted that your son is an illegitimate child and under Article 176 of the Family Code, illegitimate children shall be under the parental authority of their mothers but shall be entitled to support under the law.

    Corollary to the said provision are Articles 211 and 212 of the same code pertaining to parental authority, where it is provided that, the father and the mother shall jointly exercise parental authority over the persons of their common children. In case of the absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.

    From the foregoing provisions, it is clear that parental authority may be exercised by the father of your son in case of your absence. What is primordial in the custody of children is the best interest of the child. It is a proven fact that nobody could ever sacrifice in behalf of their children more than a parent would. The father of your son is not excluded therefrom.

    Petitions for Habeas Corpus are heard with utmost dispatch considering the essence of the same. By its very nature, the Writ of Habeas Corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto (Section 1 Rule 102, Rules of Court). In the preference of cases, the courts give importance to cases of this nature. In the said proceedings, your parents will have to explain to the court the reasons why they are withholding custody of your son from the latter’s father and they must be able to establish that they have the preferred right relative to the custody of your child.

    We hope that we were able to substantially answer all your queries. However, please be reminded that our opinion is based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added 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 dearpao@manilatimes.net


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