Basic issues in child custody

Published by Atty. Fred July 5th, 2007 in Family and

Property Law. 99 Comments
Custody of children is one of the most intense aspects in
family litigation. A custody battle could be an
independent case or a mere incident in an
annulment/separation case. Here are some basic matters
relating to custody.
In custody disputes, what is the paramount criterion?
The paramount criterion in custody disputes is the welfare
and well-being of the child, or the best interest of the
child. The court, in arriving at its decision as to whom
custody of the minor should be given, must take into
account the respective resources and social and moral
situations of the contending parents. Nevertheless, this
primordial rule can override the rights of one or both
parents over their children.
What is the general rule as to custody over children?
The general rule is that a child under seven years of age
shall not be separated from his mother, which is based on
the basic need of a child for his mothers loving care.
Article 213 of the Family Code provides that [n]o
child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order

otherwise. This is more pronounced in case of

illegitimate children, as the law expressly provides that
illegitimate children shall be under the parental authority
of their mother.
Is this rule absolute?
This rule is not absolute. 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. Negligent and careless failure to perform the
duties of parenthood is a significant element of
abandonment, regardless of actual intention. A strong
basis for a finding of the parents abandonment of his or
her child is found in the case where the parent has left the
child permanently or indefinitely in the care of others,
given it to another, or surrendered it entirely.
I left my child to a relative, even signing a document to
such effect. Am I barred from taking back my child?
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 childrens 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.
The rule is that children older than 7 years old are
allowed to state his preference. Is the court bound by
such preference?
While such choice is given respect, the court is not bound
by that choice. The court may exercise its discretion by
disregarding the childs 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. Decisions on custody of children are always open
to adjustment as the circumstances may warrant.