Can a mother of an illegitimate child transfer parental authority of said child? My friend is thinking of leaving her three-year-old daughter to the child’s father because she found a job, but she cannot bring the child with her. She is worried that she might not be able to get the child back once everything in her life is settled. She is afraid that she will permanently lose authority over her daughter if she signs a document relating to the transfer of parental authority in favor of her child’s father. Any thoughts or advice?
Pursuant to Republic Act 9255, which amended Article 176 of the Family Code of the Philippines, the parental authority of illegitimate children shall be with their mothers. Article 176 of the Family Code provides that:
“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. xxx”
Nevertheless, there are situations such as when mothers have to work remotely from their children and the like; that they are left with little to no choice but to convey their authority to another person. Notwithstanding, such transfer of authority over the child is only on a temporary basis. Even if a document is executed to formalize such transfer, such transfer cannot be deemed of permanent nature. As explained by the Supreme Court in the case of Tonog vs Court of Appeals and Daguimol (GR 122906, Feb. 7, 2002, Ponente: Associate Justice Sabino de Leon Jr.):
“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.”
Accordingly, even if your friend and the father of her illegitimate child execute and sign a document relating to the transfer of said child to her father, such transfer cannot be considered as a permanent one. Only the courts can permanently transfer the mother’s parental authority over her minor child to another person in the cases allowed under our laws as above-quoted, or when there is compelling reasons to do so:
“The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for “compelling reasons” for the good of the child; those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. x x x
“For these reasons, even a mother may be deprived of the custody of her child who is below seven years of age for “compelling reasons.” Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person.” (Ibid.)
We hope that we were able to answer your queries. 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