• Support considers financial capacity of parent, actual needs of child

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I have a four-year-old illegitimate daughter. I am regularly providing for financial support for her but I think the mother is asking for more than what my child actually needs. Is there a way where I can have legal custody over my child since I’m the one who is capable of supporting our daughter’s needs?
     Mike

     

    Dear Mike,
    The rule that the father and the mother shall exercise joint parental authority over the persons of their common children is applicable only to legitimate children. For illegitimate children, parental authority is specifically granted to the mother. Section 1 of RA 9255 provides:

    “SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows:

    ‘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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.’”

    In the exercise of such parental authority, the mother shall be entitled to have the custody over the person of her illegitimate child.

    If you want to have legal custody over your illegitimate child, you need to file a verified petition for custody before the Family Court of the place where you reside or where your daughter may be found (Section 3, Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors). But since the law vests the custody over your illegitimate daughter to her mother, she shall not be deprived of the same in the absence of compelling reasons showing her unfitness to exercise parental authority and custody. In the case of Briones vs. Miguel, G.R. No. 156343, October 18, 2004, the Supreme Court of the Philippines enumerated some of the grounds which are considered as ample justification to deprive a mother the custody over her minor child. These are the following: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.

    Hence, you may be awarded the legal custody of your illegitimate child if you can sufficiently prove to the court the unfitness of her mother. Otherwise, you will only be given visitorial rights and the custody shall still remain with the mother.

    As to your concern regarding the financial support for your child, you may file an action before the court to determine and set the amount of support that your child is actually entitled to. In this case, the court shall take into consideration your resources or your financial capacity and the actual needs of your daughter (Article 201, Family Code of the Philippines). However, during the period that your daughter needs support, her alimony or support may be altered or modified in accordance with the increase or decrease in her needs and in your means or resources (Article 202, Family Code of the Philippines).

    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.

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