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CHILD CUSTODY

Among the more contentious issues that weve encountered in family law litigation relates to the custody
of children. 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.