House of Cards: A Study on Gender Bias in Child Custody

Daquial, Yran Klein G. | Bunag, Geselle Jean C. | Culangen, Bianca Lei C. |

Evidente, Joy Louise T. | Manuel, Hazel Lei P.

INTRODUCTION
Background of the Study
Child custody is one of the consequences of parental authority. In addition to that,
child custody is a consequence for the separation of the parents. The Filipino family is
recognized as the foundation of the nation. The Filipino family is recognized as the
foundation of the nation. The basic family unit is composed of the spouses and the child. It is
in the interest of the state that “every effort be exerted to promote his welfare and enhance
his opportunities for a useful and happy life”. However, for reasons unclear, a family can be
broken up and a child may become a pawn in the bitter game of Child Custody.
In the Philippines, it is not new for separated couples to ‘battle’ over main custody
over their brood, most especially when the child involved is seven years old. In Article 49 of
the Family Code it states that “the Court shall give paramount consideration to the moral and
material welfare of said children and their choice of the parent with whom they wish to
remain”. Though the law may be forgiving as to not specify a bias leaning into one sex being
more capable of raising a child more than the other, it seems as though there is an unofficial
preference on who the capable custodian is in a family. Many consider mothers as a beacon
of light in the dark and a comforting presence able to soothe a child from his worries and
though this is true, one cannot help but wonder why the father is not given the same credit.

Review of Related Literature

According to Article 213 of Executive Order No. 209 otherwise known as the Family
Code of the Philippines, “In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into account all
relevant considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.... No child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to otherwise.
In the case of Bondagjy v Bondagjy, the court mentioned two factors in determining
the fitness of the parent. First, the ability to see to the physical, educational, social and moral
welfare of the children; and second, the ability to give them a healthy environment as well as
physical and financial support taking into consideration the respective resources and social
and moral situations of the parents. Additionally, in a decision by the Supreme Court entitled
Tanog vs. CA, “the compelling reasons [for custody] are, but not limited to, neglect,
abandonment, unemployment and immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity and affliction with a communicable illness.” The
controversy is the societal assumption that the father is more inclined to become this figure
of child abandonment and immorality when in fact, gender plays a background role in the
responsibility of a person.
The controversy is the societal assumption that the father is more inclined to become
this figure of child abandonment and immorality when in fact, gender plays a background
role in the responsibility of a person. It cannot be denied that the Court is the one responsible
for having assurance that the child is in good hands by determining the evidence and data
brought to it. However, the State should also acknowledge the capability of the father in
raising a child.
This research can be used to cut the assumption that mother is “better-equipped” than
fathers – that there should be equal presumption of capabilities between mothers and fathers.

Research Objectives
The main objective of this research is to explain why there must be equality in the
determination of custody, and debunking a woman having a greater affinity compared to men
in their capability as a parent. It further aims on the following specific objectives:
(a) To prove that a father just as capable and has the capacity to have main custody
over children below seven years old.
(b) To determine the compelling reasons of why the mother is preferred over the
father.
(c) To provide evidence presenting the father as having better capability to provide
for the child but the mother was still chosen.
Therefore, this paper is contrary to the stereotype that mothers are always "better-
equipped" at raising a child, and that fathers are more inclined to become this figure of child
abandonment and immorality. The Court explained that “in custody disputes, it is axiomatic
that the paramount criterion is the welfare and well-being of the child. In arriving at its
decision as to whom custody of the minor should be given, the court must take into account
the respective resources and social and moral situations of the contending parents.” This
paper tends to acclaim the important role of fathers in the upbringing of their children.

Research Questions
This study is designed to explore the gender bias in child custody in the Philippines
under the lens of preference for the maternal side of the family to take over childcare when a
married couple separates or declare a marriage void. Specifically, this study aims to tackle
the following issues:
(a) What is the driving force behind preference of mothers?
(b) What may properly bridge the gaps brought about by this preference?
(c) What are the benefits of parenthood that only a father can provide?
(d) What are the benefits of parenthood that only a mother can provide?

DISCUSSION
The study aims to determine the compelling reasons of why the mother is preferred
over the father for child custody in circumstances of separation. Such an occasion is defined
by Article 213 of the Family Code, Article 363 of the Civil Code and Presidential Decree No.
603, otherwise known as the “Child and Youth Welfare Code”.
When parents are separated, children are the ones who are most affected. They are
affected not just physically, but also mentally and emotionally (Nickson, 2019). Some other
aspects shall be considered for the betterment of the child. Children are not mature enough to
understand and comprehend the reasons for the separation that is why children need more
attention during these times. Children may adjust; however, this will take a lot of time and
year. The children are the ones who are torn during the proceedings up until the judgment.
During these times, the State ensures the safety and well-being of the children.
Under Article 213 of the Family Code, maternal preference is recognized (Sta. Maria,
2015). It was stated that the rights of the parents are not the principal issues in a custody case
but it is the interest of the children. There is maternal preference due to the truth that "no
other love is quite so tender, no other solicitude quite so deep and no other devotion quite so
enduring as that of a mother for the child. Generally, the love, solicitude and devotion of a
mother cannot be replaced by another and is worth more to a child of tender years than all
other things combined" (Horst v. Mclain, 466 SW2d 187). These are the compelling reasons
why mothers are preferred over the fathers.
However, the said article is not absolute. It may be overcome only by compelling
evidence of the mother's unfitness. The mother has to be declared unsuitable to have custody
of her children in one or more of the following instances: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child,
insanity or afflicted with a communicable disease.
Article 363 of the Civil Code also mandates that "In all questions on the care,
custody, education and property of children, the latter's welfare shall be paramount. No
mother shall be separated from her child under seven years of age, unless the court finds
compelling reasons for such measure."
The “child’s best interest” standard is central to custody cases. How it is determined
and applied fairly and judiciously to varying scenarios and interests becomes the challenge
which the courts must face in the days to come (Bundang, 2011). Also, other factors shall be
considred in determining the child’s custody. One of which is the financial status of either
parents. Whether either parent can properly give for the needs and wants of the child. In
addition to that, the residence of the parents. If it is suitable for the child to stay and live
there. Moreover, the moral character of either parent. It can be seen if the parent treats his/her
child with love and respect (Peeler, 2019). The bond that was also established between the
child and his/her mother or between child and his/her father should also be considered. 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 (Fred, 2017).
The general rule that children under seven years of age shall not be separated from
their mother finds its raison d etre in the basic need of minor children for their mother's
loving care. In explaining the rationale for Article 363 of the Civil Code, the Code
Commission stressed thus:
"The general rule is recommended in order to avoid 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. If she has erred, as in cases of adultery, the penalty of
imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for
her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet
unable to understand the situation." (Report of the Code Commission, p. 12)
One compelling reason why a mother is more suited as the primary custodian is the
fact that historically, the mother has always been viewed to be better-equipped at raising a
child. This study however, would like to contend that the age-old assumption of a mother
being ‘better-equipped’ is no longer applicable and that the father is just as capable.
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603). Article 17 of the same code is even more explicit in providing
for the child's custody under various circumstances, specifically in case the parents are
separated. It clearly mandates that "no child under five years of age shall be separated from
his mother, unless the court finds compelling reasons to do so." The provision is reproduced
in its entirety as follows:
Article 17 Joint Parental Authority—“The father and the mother shall exercise jointly
just and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the father's decision shall prevail unless there is a judicial
order to the contrary.”
"In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the surviving
parent's remarriage, the court for justifiable reasons, appoints another person as guardian.”
"In case of separation of his parents, no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so."
 Not to attack generally all the mothers in the Philippines, but the provision of the law
seems to raise a question of unfairness. It can be understood and presumed that mothers are
more capable of taking care of the children. That can be considered as one of the reasons for
giving the custody automatically to the mother. However, why is it not possible to presume
that fathers can also do the same for their children, just like it can be easily be presumed in
cases of mothers. Some will argue the mothers give unique loving and caring to their
children, but fathers can give the same in other forms (Richardson, 2013). This is like the
case of giving benefit of the doubt to the fathers.
The question that begs to be asked in this situation is whether or not there is
something in the love of a mother than cannot be found in the arms of a father.

CONCLUSION
When will this battle over the custody of children under 7 years of age ever stop? The
court must not have a priority in the custody of children. The court must not presume the
mother to be the best custodian of children under 7 years of age or in any other ages. The
court should prioritize the children; their safety, their health, their interests, their welfare,
their morality, and their future. They must give the custody to the parent who is physically,
financially, ethically, and mentally deserving; a parent’s responsibility to be a custodian
should never be measured through love and tender care only.
“No child under seven years of age shall be separated from the mother unless the
court finds compelling reasons to otherwise”. This statement alone provides inequality and
gender bias regarding the capability and capacity of parents to take care and raise their
children. In the case of Bondagjy v Bondagjy, the court mentioned two factors in determining
the fitness of the parent. First, the ability to see to the physical, educational, social and moral
welfare of the children; and second, the ability to give them a healthy environment as well as
physical and financial support taking into consideration the respective resources and social
and moral situations of the parents. Mothers can raise a child well; fathers can raise a child
well, there is nothing in between.
However, no matter how fit of a parent you are and whatever gender you may belong
to, the court would always prioritize the interest of the child. It was stated that the rights of
the parents are not the principal issues in a custody case but it is the interest of the children.
The “child’s best interest” standard is central to custody cases. How it is determined and
applied fairly and judiciously to varying scenarios and interests becomes the challenge which
the courts must face in the days to come (Bundang, 2011). This is when and where equality
comes into place, no bias and no inequality; the court needs to put forward its priority which
is—the best interests of the child. If the court chooses based on gender alone, it would result
to the nonfulfillment of its duties and obligations, which is the promotion of the general
welfare of the children through the law.
 There is nothing in the love of a mother that cannot be replaced by the arms of the
father, and vice-versa.

REASONS:
(1)Pablo Gualberto v Gualberto, GR. No. 154994. (June 2005)—Aid for the compelling
reasons of why a mother is unfit for custody
(2) Sta. Maria’s book on Persons and Family Relations—Aid to explain what maternal
preference is and the reason behind in cases of custody in the Philippines
(3) Washington, D. (2019, August 30). Father Can Still Get Full Custody of Their
Children—Factors that can be used by the Court in determining the child’s custody.
(4) Richardson, M. L. (2013, July 23). Custody Battles: The Top Five Things Dads Should
Know Before Setting Foot in Court—Reasons for the court to acknowledge capabilities of the
father.
(5) Nickson, C. (2019, July 27). The Psychological Effect of Separation on Children-- The effect of
seperation of parents in the mind of their children
(6) Fred. (2007, July 5). Basic Issues in Child Custody –Basic knowledge about taking child
custody.

(7) Bundang, T. R. (2011, July 8). Custody Dispute: Child’s Best Interest -- Definition of “Best Interest of
the Child” in different angles.

REFERENCES

Books

Sta.Maria. M., Jr. (2015, February 28). Persons and Family Relations. 6th Ed. Quezon City:
Rex Publishing Company, Inc.

Civil Code of the Philippines. Article 363

Family Code of the Philippines, Article 213

Online Sources

Pablo Gualberto v Gualberto, GR. No. 154994. (2005, June). Retrieved from
http://chanrobles.com/scdecisions/jurisprudence2005/jun2005/154994.php

Fred. (2007, July 5). Basic Issues in Child Custody. Retrieved from https://pnl- law.com/blog/basic-issues-
in-child-custody
Bundang, T. R. (2011, July 8). Custody Dispute: Child’s Best Interest. Retrieved from
https://www.sapalovelez.com/2014/10/07/custody-dispute/

Richardson, M. L. (2013, July 23). Custody Battles: The Top Five Things Dads Should Know
Before Setting Foot in Court. Retrieved from
https://www.huffpost.com/entry/custody-battles-the-top-five-things
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Nickson, C. (2019, July 27). The Psychological Effect of Separation on Children. Retrieved from
http://www.separateddads.co.uk/psychological-effect-separation-children.html

Washington, D. (2019, August 30). Father Can Still Get Full Custody of Their Children.
Retrieved from https://www.verywellfamily.com/how-can-fathers-get-full-custody-
2997129