When Mother of Child Can be Deprived of Custody

As a general rule, a child under 7 years of age shall be in the custody of the mother (Art 213 of the Family Code). This is known as the maternal preference rule or tender-years-rule.

But this rule has exceptions: when the court finds compelling reasons to order otherwise. This includes finding compelling evidence showing the mother’s unfitness such as:

  • neglect
  • abandonment
  • unemployment
  • immorality
  • habitual drunkenness
  • drug addiction
  • maltreatment of the child
  • insanity
  • affliction with a communicable disease

Case law:  Agnes Hirsch vs. CA and Franklin Hirsch (GR No. 174485, July 11, 2007)

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69 thoughts on “When Mother of Child Can be Deprived of Custody

  1. Sheryl *******

    will a letter signed by the mother saying she is giving full custody to the father enough to consider mother’s unfitness as neglect and abandonment? if the signed letter includes a testimony that she’s giving up her rights as a mother, will it be enough to get a court order or decision in the future if ever the mother comes back to take the child?

    Reply
    1. Atty Post author

      Sheryl:
      The letter saying she is giving full custody is not necessarily neglect or abandonment but may be evidence of her consent to transferring full custody to the father. I suggest that the father file a petition for sole custody at the earliest time citing the mother’s consent. But the mother will still be notified of the petition and given a chance to confirm or contest it. It is my opinion that a mere letter is not enough if it is not confirmed in court.

      I hope this helps.

      Reply
  2. shana

    hi atty..im with my exboyfriend for 5yrs..we got separated because he found out that im dating someone..naglive in kme for 3yrs tpos nagkaron kme ng baby na ngyn 2yrs. old na..nung nalaman nya na may dnedate ako,pinalayas nya ko sa kanila, ngyn ung baby ko naiwan sa kanya,ayaw kc nla ibigay skn ung anak ko..nung susunduin ko na ung baby ko sa kanila,nagkagulo kami tpos cnaktan ako ng ate nya…atty, wala ako work ngyn..tpos ngfile na ako ng petition of writ for habeas corpus sa court of appeals.. para po db ipresent nila ung baby ko? atty, may laban ba sila dahil wala ako work ngyn? tsaka pwede ba nila ikaso sakin un immorality dahil nakipagrelasyon ako sa iba kahit hindi naman kame kasal?

    Reply
    1. Atty. Post author

      Shana: Having a relationship with another man is not a ground for depriving a mom of custody, especially when it involves a child below 7 who is illegitimate. I’m sure your lawyer will cite these as your defenses. It’s very rare for judges not to allow the child to stay with the mother at that age because it is believed that children that young need the mother most. I wish you the best.

      Reply
  3. bebe

    hi atty! with regards with the deprived of the custody of the mother..my sister is struggling with the same problem with his ex live-in partner..they separated now and have a 2yrs old son.. her ex filed a petition to my sister’s company to be terminated through the help of his father wherein working in the same company..so now my sister is jobless and I am the one who is supporting them..Is she can be deprive with the child custody? since my sister is unemployed and I am planning her to send back to college..Is their any right for me for nephew my custody?..thanks a lot..

    Reply
    1. Atty. Post author

      Bebe: The mother of an illegitimate child exercises sole parental authority over the child. It is only when she is absent that the court may grant custody to the biological father. Of course, there are other reasons when a mother may be deprived but being jobless temporarily or pursuing a college education is not one of them. While your sister is alive, you may only obtain custody if you adopt your nephew. I hope this helps.

      Reply
  4. Marthy

    Good Day Atty..

    I’m a father of 3 kids, now i presently working abroad and during that time i have found out that my wife is cheating on me (too many times until recently she decide to go with the new lover)… i have a solid evidence of her immorality, (a video of his lover with her to be exact).
    Now we are separated but not yet legally and I manage to took my two kids with me which already above 7 years old and let them stay with my sister since I’m working abroad. Now I’m struggling to take my youngest child which only 6 years old. Can i be grant a full custody as well even I’m working abroad and make my sister as my soul guardian while I’m away working.

    Please advice me on what better ground to do, i really want all my kids to be together and i don’t trust her new lover if my youngest(girl) will stay with them.

    Thanks a lot in advance.

    Marthy

    Reply
    1. Atty. Post author

      Marthy: I suggest that you consider filing a case for legal separation citing your wife’s infidelity and ask for custody in the same petition. You may have to state that your wife is living with someone else already and it would be to your daughter’s best interest that she live with her aunt (from your side of the family). The child’s age may be a problem but if you voice all your concerns to your lawyer, he/she should be able to build a case showing how it would be to your daughter’s best interest to be under your custody instead of living with the mother and her lover. The court may or may not grant you sole custody but it’s worth a try. However, you will have to return to the Philippines to file the case and attend to it until it is done.

      Reply
  5. amhor

    hi atty.

    i am living with my boyfriend for the last two months. he has a baby girl who is now 6months old. i was told na yung biological mother ng baby eh had two other kids na na pinamigay sa side ng mga naging tatay ng anak nya. bali naanakan lng sya ng bf ko. she’s not employed and as per what we know, she went on with her night life being always at clubs drinking and dating guys. Me and my bf are engaged na. I want to take care of the baby and be her legal mother. Hindi pa din napfile ang birth certificate ni baby. All documents regarding birth, lahat nasa amin ng bf ko. She abandoned them in the hospital nung nakarecover na sya after giving birth. mula nun bf ko na and yaya ang nag-alaga sa baby. May chance ba maayos namen ang full custody ng baby sa amin. kasi medyo nahihirapan ako mula ng malaman nung gurl na engage n ang bf ko, she’s asking for money kapalit ng katahimikan namen… nasa amin din po ang mga resibo ng money transfer na nakaaddress s pangalan nung girl. Masakit s loob ko at the same time naaawa ako s bf ko– na sooner or later magiging asawa ko na. Pwede kayang pagnagfile kame ng birth certificate ni baby sa city hall eh pangalan ko na isulat dun?
    what are the best actions that we can do. Nakakatakot lng kasing pag kinuha nya si baby eh ibenta nya or ipamigay dn sa ibang tao pag wala na syang pera. at the same time, hindi namen ma-stop ung pagpapadala ng pera s gurl twice every month para hindi sya manggulo.
    panu kya ang gagawin ko/namen?

    Thanks and God bless!

    Reply
    1. Atty. Post author

      Amhor: I can’t suggest putting in false entries in the child’s birth certificate even if the child’s mother seems undeserving to be called a mom. There are criminal laws prohibiting simulating births and falsifying public records. Violating those laws may only worsen your situation and give the child’s mother more ammunition to ask for more money (or blackmail). Under your situation, you may either have the baby declared as abandoned by the DSWD and initiate adoption proceedings to legally obtain custody of the child. This will keep the mother from claiming the baby later on and “contracting” her out in exchange for money. I hope this helps.

      Reply
  6. J.

    Good day Atty.
    I’m a young father, I have a newborn child with with my partner. Now, she doesn’t have a job because I let her leave our company because of her delicate pregnancy. I was the one who supported her all throughout her pregnancy. She’s been threatening me that she would leave me with our child since day one. Never thought of the big picture, she always thinks of what’s best for her. Doesn’t even care about the welfare of our child. I did everything I could to keep them, I’ve been dying to leave my job but I can’t be unemployed because I don’t want to fail them. I love my partner, and our child. But we are in a quarel about a little thing. She keeps on telling me that I’m irresponsible just because I want to run, or want to be fit like goint to the gym or playing basketball. This has been going on everythime since she got pregnant. And now, she wants to leave the country with our child with the support of her mother, who doesn’t seem to care what her daughter wants. Then she told me that she will leave our child with her grandparents and I can just visit anytime. My concern is that her sister and her sister’s child lives there. The child is very much spoiled and may partner knows about it. I don’t want my child to be in that environment. I don’t want our hild to have such an attitude, to which I informed her. Now she’s telling me that I can have our child, and she doesn’t seem to care about her being with me, she just wants to leave the country. And mind you, my partner is emotionally unstable and very irrational. But I still love her and I did not have any short comings when it comes to supporting them. Do I have the slightest chance of having custody of our child once my partner leaves the country? If she doesn’t leave the country and goes elsewhere local without my approval, is it legal? I mean, I think I do have rights, because I’m the natural/biological father and I don’t have any intentions of abandoning them. Can you help me out with this?

    Reply
    1. Atty. Post author

      J: An illegitimate father has rights but are limited to reasonable visitation. Under the situation, if the mother allows you to have custody over her child while she is abroad, then I would suggest that you ask her if you can formally adopt the child and start proceedings immediately while she is still in the country. She can travel to any place she wants with your child because legally the mother of an illegitimate child has sole parental authority. Your rights again, are limited to reasonable visitation. If you want your visitation rights to be respected and enforced later in court, I suggest that you engage a lawyer to draft a visitation schedule and have it approved in court. I also suggest that you include a provision which requires her to seek your prior written consent to any change of residence, so as not to disturb your visitation rights. I hope this helps.

      Reply
  7. vicky

    Hi Atty
    i just want to inquire about my brother’s case who left her wife after a quarrel. They have irreconcilable differences. According to my brother her wife is emotionally unstable and very much paranoid about so many things. I myself is the object of her paranoia. She doesn’t want me to visit my nephew ( who’s turning 4 on June) and niece (1 yr and 2mos) unless she is around. She speculates we would be talking things behind her back…when my mom said “anak ni al” (my brother’s nick name)…she reacted by saying.. “tawag pala sa akin ni mommy “andal” (her maiden surname)… one time during one of our visits (it was my nephews bday) i told my mom “kapag malakas kang kumain lalaki ang bituka mo … she locked herself in their room… she insists what i told was “kapag mahirap, walang makain” and so many other things. She doesn’t listen to any of our explanations and always believe what she thought was right. She has so many issues with me, my family and specially with my brother who stayed with her for the sake of their kids… Her wife cursed him and threatened him to tell their kids negative things about him and how bad their father was. My brother was devastated. She has dozens and dozens and dozens of text messages maligning and accusing my brother about so many things. Although my brother was the one who left… he wants full custody of his kids… what should he do? His wife doesnt have a job to raise their kids…does she have the right to raise their kids given her attitude and outlook? Pls help… Thank you.

    Reply
    1. Atty. Post author

      Vicky: Fighting for custody in court against the children’s mother can be difficult unless the mother voluntarily gives custody to the father. This is because of the law’s preference of the child’s mother, particularly when the child is under 7 years of age. Only compelling reasons such as neglect, abandonment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. The mother’s negative attitude, however, may not necessarily be insanity, unless a psychiatrist declares it as such after an examination of the children’s mother. If the mother is temporarily unemployed, the court may simply order the father to provide child support.

      Reply
  8. vic

    hi atty
    can u please delete my previous post. I thought my surname won’t show up

    Reply
    1. Atty Post author

      Vic: I check the names and delete the surnames of the senders before publishing replies. If it seems to appear on your screen, that’s because your comment has not yet been published and is still awaiting moderation. In the meantime, it is not visible to others here. Don’t worry.

      Reply
  9. Clara

    Good day Atty!

    I do have two kids with my ex – bf whom I lived in with almost 3 years. My daughter is 3 turning 4 this year and my son is 1 year and 7 months. And now we have to part ways as he does not want to get out of his mom’s sight and we have other quarrels about our families as well. His mom actually get into our fights that is why it gets more complicated and I really don’t want to go back there anymore. He is not a good provider and I do work now on a private company for my own’s and kids needs. He does has a job though, however, his money is just for him. My ex – bf and his mom always mocks at me that they are the ones who took cared of my kids and provided needs especially for my daughter (as when I gave birth to her, I was a newly grad and was still looking for a job). And for that reason, they are claiming that they have right to keep my kids as I do not know how to take care of them as I am working. I know for a fact that I can take care of my kids even though I work and that might be difficult, however, I know that I can deal with that. It was a month ago when we had a fight and I left their place and took my kids where my aunt lives which is also near my work. I did not intend to keep away the kids from them, I just wanted my kids to be where I am and I believe that is just a normal thing to do. He filed a complaint on me on my own brgy that I was keeping the lids away from them. We had an agreement that the kids would stay at their place for 3 days and the remaining days of the week would be my turn. I know that this setup is not as good as I thought it would really not be especially when my daughter would be going to school soon. Then he is actually pointing out that we divide our kids, my daughter for him and my son for me which of course I did not agree. He says that it is for a common good of the kids. And now he would want to enroll my daughter at their place so she would be living there due to schooling. I would like to ask for an advice what would be the best step for me to take so he can understand as well as his mom that my kids should be with me and that I have the right to keep them. As he is really insisting that he is the right since my kids are using his last name and that his family is provided assistance (support and money matters) on raising my kids. Is there a need for me to file on the court regarding this matter?
    Thanks for reading my post. I look forward for your advice.
    God bless!

    Clara

    Reply
    1. Atty. Post author

      Clara: The children are illegitimate and they are also very young. If you want your children to remain with you and just give the father regular time to spend with them, such as weekends, then you will have to communicate this clearly to them. As for your legal grounds, well, the Family Code has provisions in your favor even when the children carry their father’s surname. At best, the father is entitled to reasonable visitation rights and not necessarily custody. You are also not obliged to agree to a “dividing” of children as if they were property. It may actually be detrimental for siblings to live separately in their growing years. If they continue to insist on the stressful situation you just presented, then you may have to approach a lawyer who can take legal action such as negotiating the terms of a visitation agreement. I hope this helps.

      Reply
  10. Mariz

    Hi Atty,
    I have 2 children a 4yrs old and 2yrs old, who lives with their grandparents with their father,as i can’t look after them because I am not capable of getting them a house and a yaya. I’m working in a BPO industry. I want to get my children and personally takes care of them as I used to, because I found out that they’re not actually taking care the children, Its schooling time and my 4yrs old is supposed to be in nursery now, and yet they don’t want to look for a school for him I live in Sampaloc, Manila and they live in Quezon, City.. I worked 11pm-8am every weekdays, I don’t have much time to roam around their place to look for school since I’m not familiar there. I am willing to support my son’s schooling 100% financially. Unfortunately, he is still out of school. Their reason is literally THEY DON”T WANT TO WORK ON THAT. even the father of my son.. And my son is telling me that he is being bullied by his father’s son (on his ex-wife) even the grand father sicked him when he asked for a milk before going to bed, not just once several times. They are being hospitalized without me knowing because they don’t wanna inform me or let me know that they are sick. Because of this, I want to get the custody of my children, my only problem is financial, My salary alone can’t support our needs.. housing and yaya and my 4yrs old schooling. I’m afraid they won’t support the children financially, I don’t wanna take the risk of taking the kids with me when I know the fact I can’t support them financially. Aside from that, My ex-bf is now having a relationship with a lesbian, (I don’t care about that) thing is whenever the girl comes in their house, they teaches my 2yrs old to call him mommy, while the father of my children and his gf smoked in front of the kids. Please help, I need advise on what can I do to get them back to me and get financial support from their father who also works in a BPO industry. Badly need your advise.

    Thanks so much,
    Mariz

    Reply
    1. Atty. Post author

      Mariz: I suggest that you approach a lawyer who can file a petition for child custody and motion for support (pendente lite or while the case for child custody is pending). The children are illegitimate and the Family Code grants sole parental authority to the mother of illegitimate children. I assume that their father acknowledged paternity on the back of their birth certificates; this will give rise to the children’s right to be supported even if they do not live with their father. There will be legal costs involved but if you explain your financial capacity to your prospective lawyer, I’m sure a reasonable arrangement can be worked out. I hope this helps.

      Reply
      1. Mariz

        Hi Atty:

        I wrote to you in June of last year regarding child custody, I would like you to know that I already have my children’s custody and now living with me. Problem now is that the father doesn’t want to support the children financially, according to him, in 2yrs that he had the children I didn’t helped him, which is not true, I may not giving a lot or most of the times but whenever I can, I’m buying things for the children and giving small amount to hir mother. I need to secure a house for my children that’s why I can’t give them much. I am actually an orphaned, I grew up in an NGO- orphanage, so I don’t have family to support me morally and financially, while he has all of this, I can’t count on his parents kinukunsinti kasi nila yung father ng mga anak ko, though the’ll getting them from me every weekends, and bring them back weekdays. My 5 yrs old is now schooling, I enrolled him for summer and entering grade 1 this June, I am seeking help since my salary is not enough, plus I am paying for my yaya, house rent, utility, and foods, the grandparents are the one buying milk for my 2yrs old kid , (just milk)

        In the reason that for 2 yrs I didn’t helped him does this mean I cannot get child support from him anymore? Please help..

        Thanks in advance

      2. Atty. Post author

        Mariz: You can still ask for child support. His obligation continues for as long as the children are not yet of age. I suggest that you list down your children’s regular monthly expenses and identify their father’s sources of income and ask a lawyer to send him a demand letter asking him to provide a monthly allowance more or less equivalent to what your children need. I hope this helps.

  11. leni

    Hi Atty,
    I have daughter which is 2 years old, me and my husband were married since 2008,my daughter is with me right now, we have problem right now, he accuses me that i cheated him with my office mate without hard evidence ( video, pictures, etc) i know, that i did not cheated him, and to end this issue, he told me resign and i resign, but when i resign, he want to separate with us (he told me he need space, etc.) now, he don’t want to talk with me, rather he told me that he can get the full custody of my daughter (because he already talked with the dswd) now, by the end of this month i have no work. When reading about the custody of child in the Philippines, one of the reason that a mother can be deprive for the custody of child is unemployment, immorality (however i know that immorality cannot accused to me without hard evidence) but my family (parents, sister and brother) told me that since i dont have job in the end of this month they can support me and my daughter, Do i have a chance to get the full custody of my daughter?

    Reply
    1. Atty. Post author

      Leni: In cases where the child involved in a custody dispute is a minor below 7 years old, the court will usually grant joint custody to both parents, but the mother will be the primary custodian. The father will be more or less equal time to spend with the child but it is very rare that the court will separate a 2-year old child from its mother.

      Reply
  12. Mars

    Hello po I have a stepdaughter po ako n nagalaga since 8 months old now she’s 8 yrs. Old and now I’m married with his dad and I want to adopt her coz she doesn’t know anything that she’s not my daughter… But way back since she is 2 yrs.old my husband got the custody through court order…and they have compromise agreement that she visit my stepdaughter every weekend but 6 yrs na never show up…and nobody knows where she is…. And I want to pursue to adopt my stepdaughter kc we know the way she is and something gonna happen to my husband I don’t have any control of her….kc Itinakas Nya dati at Kung Saan Saan dinala ang bata until n nagkasakit sakit ang bata kc di cya kilala…anu po ba ang legal process po pra maiayos ko po sa tama….hope I can get reply po…thank u

    Reply
    1. Atty. Post author

      Mars: You’ll need the written consent of the child’s mother to successfully obtain a decree of adoption over your stepdaughter. The compromise agreement is not sufficient to take away the mother’s right of custody over her child. Even if she failed to show up previously, the law is clear about the mother’s right of sole parental authority over her illegitimate child. The next time she shows up, you may want to discuss the child’s adoption with her.

      Reply
  13. Queen

    Hello po… I would like to ask regarding the case of my brother, He and his wife got separated last December 2011.. Walang idea si kuya ko kung anu talaga ang reason ng asawa nya, then almost 3 weeks after they separated, nabuksan ng kuya ko ang email add ng asawa nya, and he found out na may lalake pala ito. Meron silang 1 anak na lalake who is 3 yrs old. and bihira ito makita ni kuya, pero wala naman sila problema sa sharing expenses ng bata. I wanted to help my brother, kasi all he knows is kamag naghiwalay ang mag-asawa ang custody ng bata ay sa nanay. which is true, unfortunately, nahihirapan syang hiramin or makipagkita sa anak nya. I told my brother na he should consult in a lawyer to have agreement between her wife, so iwanted to help him out para malaman kung anu dapat nya gawin. I told him na pagusapan kung kanino mag christmas at new year ang bata..Kaya lang ang reply ng asawa nya ay they will spent Holidays in Hongkong. Possible po ba, na hindi nya basta basta mailabas ng bansa ang bata kahit 3days tour lang or what unless may consent ng isa? Tinatanung din po ako ni kuya if kung kasama ang grandparents ng bata (mother side) sapat na ba daw po iyon para mailabas labas nila ng bansa ang bata? Hindi pa po sila annulled, or legally separated. Anu po kaya best way na step ni kuya ko. As we know na mag fifile daw ng annullment yung babae, kaya lang po para po pahirapan po kasi bago pa makita ni kuya ang bata. Hope for your response po. Thank you po in advance.

    Reply
    1. Atty. Post author

      Queen: Yes, it’s possible for the mother to bring the child out of the country without the father’s consent. But the child may still leave the country with the grandparents if the grandparents can show a DSWD travel clearance. I suggest that the child’s father consult a lawyer who can also start negotiating the terms of a visitation agreement with the child’s mother or who can file a petition for visitation in court, in case the child’s mother refuses to allow visitation.

      Reply
  14. Jillian

    Hello po i just want to ask regarding a full custody of my child. Meron po akong bf for past 3 years ngka anak kami 2 years old na xa ngayun pero di po kami kasal, nung six months xa napilitan akong mg abroad to support the child and also my sister who is still studying. Lagi kaming ng aaway ng ex ko kaya napagdisyunan kong hiwalayn xa ngayun may bago akong bf pero nung malaman nya na meron na akong iba tinago nya yung bata di nya pinapakita kahit sa parents ko. Plz. Help me pwede ko bah makuha anak ko anyways regarding sa pera wala po xang trabaho ako ang sumusuporta sa bata simula pa nuon. Ano po ba dapat kong documents for this matter?

    Reply
    1. Atty. Post author

      Jilian: If you are not in the Philippines, you’ll have to return to the Philippines first to file the appropriate petitions in court to regain physical custody over your child.

      Reply
  15. eden

    hi atty. my marriage with my husband is on the rocks. we have a 2 yr old daughter and he wanted me to leave the child with him of which i do not agree. magkamatayan na kung magkamatayan, wag lang kunin ang bata sa akin. i have a job but is planning to quit from it and return to our home in the province to start all over again. What will i do in order for the child to be solely mine?

    Reply
    1. Atty. Post author

      Eden: I suggest that you talk things over with your husband when your tempers are cooler. Just tell your husband that he can still see the child and try to agree on specific dates for him to be able to spend time with her. If he insists on having sole custody, perhaps your best option is to settle this issue in court and file a petition for sole custody. Ordinarily, mothers are entitled to custody over a child under 7 years of age unless the father can show compelling reasons for depriving the mother of custody. I hope this helps.

      Reply
  16. Rozana

    Hi Atty,

    I posted a question on WordPress site but somehow did not get a response to date.

    I married a Filipino Muslim in 1993 as 2nd wife and had 2 children. In 2002 I left for Canada. I sent support for my children, including some amounts for my husband’s 1st family since my children are looked after by the 1st wife.
    My relationship with the father of my children was severed in 2009, just before I am about to sponsor my kids to join me in Canada. They were ages 10 and 15 then. Their father would not sign documents anymore and held the kids from me. However, I kept my support to the children as the father is unemployed and the kids are not getting the proper and sometimes the basic necessicities. They are subjected to financial difficulties.

    I am aware of the Bondadjy vs. Bondagjy case and because I knew that the custody battle process may involve conflicts with Sharia and the Family Code as well as lenglthy. I thought of simply waiting to take them till they reach the age of majority (18) and when they are able to decide for themselves.

    But one of my children ran away last year from her father, due to hard life in scarcity, living and relationship difficulties. She was then 17 yrs old. Since then she was living with my sister and mother in Manila.I tried to speak to their father to release both custody of my children to me and for me to take them to Canada. But stood firm and refused to give consent.

    Today I am in the process of sponsorinng the now 18 year old daughter but I am concern about my youngest 13 year old son. I am noow at a point where I want to legally file sole custody of my minor son.

    I also recently heard that the his father is bound for Riyadh KSA for a job and I believe that he will only work overseas if he is able to take his wife and children. And based on what I know, a minor child is allowed to travel overseas with one parent and will not be held at our airports. While I am unable to sponsor my son because Canadian Immigration law requires the father’s consent, I am not sure of Saudi Arabia’s immigration laws in regards to foreign national minors traveling to their country without the other parent’s consent.

    Questions:
    1. If he succeeds on taking my son to Saudi Arabia, what options do I have?
    2. How and where should I start?
    3. How long would the process take for sole custody of a minor?

    I will greatly appreciate any legal recommendations that you may have for me.

    Thank you.
    Rozana

    Reply
    1. Atty. Post author

      Rozana: Does your 13-yr old already have a passport? If not, then he may encounter some difficulty in obtaining one without your presence or consent because the DFA will not issue a passport to minors unless it is the mother who claims or processes it. If you can go to the Philippines soon, I suggest that you take the time to get your child’s passport and keep it so that leaving the country without your knowledge will not be that easy. Letting the child return to the Philippines can be difficult, particularly where the country involved is not a signatory of the Hague Convention on international child abduction. To obtain sole custody, your first step is to engage the services of a family lawyer in the place where the child currently resides. But you will have to invest time to see it through, and the process, especially if contested by the child’s father, can be long. I hope this helps.

      Reply
      1. RA Solita

        Thank you Atty, for responding. My son had a passport valid until May 2011, but somehow the father managed to secure a passport for the child in 2009 by declaing it lost and through some connections at the regional DFA office in the northern province where they are at.

        In fact I had a problem securing a passport renewal for my now 18 years old daughter. She ran away from her father when she was 17. DFA would not issue a new passport then, even though it was clear and proven that the passports were renewed farudulently by their father when they were 10 and 15. DFA advised that we wait for my daughter�s 18th birthday. The office of the consular affairs wrote to me that they acknowledge the fraudulent renewal, but they did not want to issue a new passport which may in turn cause them to face legal actions from the father.

        Now my question is�since DFA acknowledged in writing to me that my ex-husband has indeed violated the provisions in R.A. 8239. He was called to appear at the DFA’s Passport Integrity and Fraud Management Section for investigation but declined. Now would I have the right to request again in writing to the DFA consular affairs and request the cancellation of my 13 year old son�s passport? I believe that If they refused to issue new passports of my children due to the reasons that they gave me, they should also cancel or invalidated those existing passports that were fraudulently renewed because I could also seek legal actions if my ex husband succeeds in taking the my minor son outside of the country without my consent?

        I look forward to your response. Thank you so much for accommodating my questions.

        Rozana

      2. Atty. Post author

        Rozana: It’s worth trying to write the DFA (head office) about your situation and the fraudulent renewal of the child’s passport. It may also help to state that you have real reasons to believe that the child’s father may take your son out of the country without your consent. If they cannot cancel the child’s passport then your other option is to ask a lawyer to file the appropriate action in court to obtain sole custody of the child and in the meantime, request for a hold departure order which you can provide the Bureau of Immigration later.

  17. baby gurl

    atty,
    gudmorning. this site is very helpul.. wel i want to inquire in my case. im a 25 yr unwed with a illegitimate son 5yr old acknowledge by the father.
    .im working abroad for 2 years. left my son in a family friend since my father is working and wer not able to find a nanny (a trustful) to keep it with him (my father) i send all the support to my father for my sons allowance and all expenses toghether with school necessities, once to twice a month, occasions, my sons and guardians visiting my dad, getting their allowance,chating and playing with the neighbor… the biological father arent supporting my son yet they have no idea of where my son was. but they absolutely know where my dad living but still they did not intend to leave any support. (where in they- inlaws might like to see the child) but the full history is wer in the biological father decided to breakup with me during a simple quarrel and only to find out that he was in a relationship with others (he was in abroad that time). he cut our communication, not even answering my calls, my msgs and fb and even deleted and blocked me in facebook, and not sending any cent.. so i decided that not to bother him to tell wer i will let my son stay coz il be due to leave for work abroad. so early this year the biological father went home from abroad, asking few frends about my son but never bother to visit my dad and ask him perosnally.or neither intent to email or msg me to ask me where was his son.
    my question is am i be filed as neglect or abondonment coz im in abroad?
    2nd, coz i left my son in a family frend?
    tho i fully support my son? i need to work abroad in order to sustain our needs..
    3rd in case i want to travel with my son or migrate him do i need consent for the father(my sons carrying his surname)?
    4th can i take the solo custody?even without asking or talking with the biological father?

    thank u so much for ur soon advices. godbless

    Reply
    1. Atty. Post author

      Baby gurl: Your son is illegitimate– no need to ask the court to grant you sole custody as the Family Code already provides that the illegitimate child’s mother has sole parental authority. Temporarily residing abroad to work with the intention to return and while providing financial support is NOT abandonment.

      Reply
  18. Happy

    Hi Atty,
    My son is turning 8 yrs of age this coming march 22. Im not yet annulled to the father of my son and we’ve been separated for almost 7yrs.. His father wants to have the full custody of my child. Honestly, I not agree of that kind of settlement. I allow him to visit my son, go out with him over the weekend and during vacations. He has financial support for our child Php5,000 monthly but it is not fixed anyway while i support everything for my son from school, school service, yaya, medicines etc. I don’t want him to get my child away from me since he has new partner now and they are living-in for 4yrs or more.. Besides i allow him to visit my child and give them time to bond together if my son has no school.. He is imposing to me that he can get my son anytime he wants because our son is in legal age to choose to whom he wants to stay.. Atty.. pls help..
    What can i do about this.. thanks

    Reply
    1. Atty. Post author

      Happy: I suggest that you ask a lawyer to draft an agreement for shared custody where your son will spend specific times with you and other times with his father. This way, you can eliminate the stress that normally comes with discussing schedules with the child’s father. Once you are able to agree in writing, your lawyer may be able to go to court and file the appropriate case to have it approved so that your husband may be compelled later to follow its terms. I hope this helps.

      Reply
  19. hannah

    gudmorning atty. ask ko lang po sana kung sakin parin po b ang custody ng anak ko he’s only 6yrs old umbot kc kami s barangay dahil ayaw ibgay ng pamilya n exbf q un anak namin ngkagulo kami ky binarangay ko s kagustuhan kong mkasama un anak q ngkasundo km s brangy n hati km s pg aalaga s bata,pero araw lmipas hnd talaga ako kampante n pamilya ng ex q ng aalaga s anak q while nasa trbho ang ama ng anak q,ngaun gsto ko bwiin n ang anak q pd parin ho b un kht n ngkasundo kmi s brngy. pls help me

    Reply
    1. Atty. Post author

      Hannah: You can still try and ask the court to grant you sole custody because your child is illegitimate. But try to be reasonable with the child’s father and still be open to allowing him to spend time with the child, also known as visitation. I hope this helps.

      Reply
  20. Kriz

    Can I ask if when the mother is working abroad, is it an abandonment? Thanks

    Reply
    1. Atty. Post author

      Kriz: Working abroad is merely temporary absence, not necessarily considered abandonment of the child, especially if the mother continues to send money for the child’s needs while she is away.

      Reply
  21. Greg

    HI i am the father of a 3 year old boy born in the philippines i have been taking care of him on my own for the past 1 and a half years his mother shows up from time to time but spends little or no time with him she is seeing another man and has since moved in with him. I have paid for all his living, I have asked her where she lives if anything were to happen to my son, she told me 3 different addresses and then she said it was taguig but i am unsure of this either she rarely if ever tells the truth. she constantly threatens me with taking him although when I call her to talk to him she doesnt answer the phone, i think this is a clear case of neglect and immorality can anyone tell me if I am correct thanks

    Reply
    1. Atty. Post author

      Greg: Since the child is illegitimate, I suggest that you go to court and file a petition for sole custody citing sufficient grounds such as abandonment and prove the same with evidence deemed sufficient BY THE COURT. Your lawyer can help you produce the kind of evidence required to prove abandonment and the mother, of course, will be allowed to contest it in court.

      Reply
      1. Greg

        Hi
        thanks for the information I will consult a Lawyer Next weeK and see what can be done , the main thing that bothers me is that her words never match her actions and that if she got him he would be left alone or with a Nanny , i have no idea who her Boyfriend is I don’t trust the situation as a whole ! an example of this was we waited for her a number of times in a shopping Mall she either does not turn up or she arrive 3 hours late spends 20 minutes with him and then says she has to go ! anyway that’s only 1 example ! another question what happens if I apply for sole custody and she is no where to be found and does not come to court ? what happens then ???

      2. Atty. Post author

        Greg: There are legal remedies for that, and it may form part of your lawyer’s strategy in court. Your lawyer will take the appropriate legal steps on your behalf.

  22. yanna

    hi. i would just like to be clarified on some things regarding with my brother and his family. my brother has been married for 16 years. they have three daughters. eldest is 14 years old, then 12 and the youngest is 10. the mother started to work abroad since the youngest was 4 years old. my brother were the one who took care of them together with my mother. the mother sends money for the children as my brother has also business here. ther have been very okay. the mother goes home only every after two years. last year, they start to have this fighting and all as my brother keeps on asking her wife to be with them and stay with them here. her wife spesnt wanted to for she wanted to earn more. fighting had worsen when his wife went home, he saw some flirty messages from other man, that started to have my brother thinks that her wife has another man abroad. my brother became paranoid and despite of his not giving permission to her wife, she still continue to go back abroad with the reason that she has nothing to do with those flirty messages. my brother was the one raising his thrre daughters, the mother continuously sends money to have her support with the children. my brother pretends to the children that he and his wife is okay for the sake of emotional trauma that it will bring them. her wife wants to file an annullment of their marriage. sad to say, two months ago, my brother was engaged in a criminal offense, he is now away with the children, but he continues to provide money for their needs. the children is now with us and treat them like our own like what we used to since their mother was abroad, but continuously support them. the children is longing for their father especially the youngest since he was the one who have been always with them. may i know if the custody of the children is still with the mother? and what other grounds could be consider on this situation? thank you.

    Reply
    1. Atty. Post author

      Yanna: Custody of legitimate children is ordinarily joint (shared by both parents), but in this case, if the father is in prison, the mother will exercise custody in the meantime. IF she is abroad, then she may designate a close family member to take care of her children temporarily. Between grandparents and the mother, the law will most likely favor the mother in granting custody. I hope this helps.

      Reply
  23. Rachel

    Atty,
    I have one 8yr.old daughter now that i haven’t seen since 8 mos.old. She was taken away from me by my legal husband when she’s still a baby. he made mistakes i cant forgive so i decided to separate but not yet legally. Since i dont intend to reconcile with him, he keeps my daughter from me as his revenge. I work abroad, whenever i take vacation in phils. he hide my daughter. He has a wife now but he still hold a grudge on me, so as a result i have not seen my daughter. I want to file atleast shared or joint custody when i have my vacation again in phils but i dont know how, where to begin and how long will it takes before i can get custody. Because he don’t share custody i minimally support my daughter, will it affect my petition if ever? Pls.help me what to do. I want to see my kid.

    Reply
    1. Atty. Post author

      Rachel: I suggest that you find a lawyer near the place where your child currently resides (or lives with the father). Your lawyer should be able to file the appropriate case (nullity/annulment of marriage with child custody and support) depending on your goals. The child’s father will most likely raise defenses (also called compelling reasons) why you should not be given custody. Abandonment for 8 years may be cited but your lawyer should be able to anticipate this and present a valid reason for the long absence (as you stated). And yes, it is possible to agree on shared custody perhaps for you to spend time with her when you are in the Philippines.

      Reply
  24. gelene

    Dear Atty.

    Good day ma’am!

    I have a friend who has a 3 years old child with his family name but out of wedlock. The child was born 6mos. premature and was supported financially (medications and all expenses upon upbringing of the baby) and took good and extra care with the child’s critical days by my friend’s family without any help from the side of the girl (even though her mom’s in abroad). Since they were student by the time the child was born, a relative of my friend raised the child and the child was so attached with him and his family especially to his cousin who raised the child.

    Even after they graduate, the child was still with his cousin, when my friend had a girlfriend, his ex-gf got mad and decided to get the child.

    The child was so attached to his father and the person who raised him that he cries whenever his mother or grandmother get him from my friend’s house.

    My friend asked the mother for an agreement like having the child on either side, weekly or monthly. The girl agreed with the condition until 1 day my friend found out that the girl enrolled the child far away from their town where the girl works.

    Because of that, my friend, with some advice from a lawyer, he decided to get the child and brought to their home.

    The girl seek some help from police to get the child but the child didn’t go with her instead the child keep on crying that he only wants his father and the person who raised him.

    The girl seek help from PAO and they advised her to file for habeas corpus and kidnapping against the father.

    My friend only wants a fair custody for his child (after all they’ve been through; the huge expenses and the hardship during the child’s critical condition until now that the child reached the age of 3), what shall be the best thing he can do?
    Can he really file for petition for custody?
    Does the mother can be deprived of custody because she didn’t raise (taken care and support) the child (a 6mos. premature) for 3 years?
    Can he be charged of kidnapping?
    Is it fair that the mother can still ask for support even though she only give an hour visitation for my friend?

    By the way atty., the girl doesn’t perform her role as a mother even after she delivers the child. She doesn’t even tried taking care of the baby even if the baby is with her. The child doesn’t even look for her mother, he really doesn’t want to be with them, he only wants to be with his father and the person who raised him.

    Please enlighten us… Thank you very much and May God Bless you.

    Reply
    1. Atty. Post author

      Gelene: Illegitimate children are under the sole parental authority of the mother. The child’s father will have to prepare a solid case to prove compelling reasons for depriving the child’s mother of authority. The child’s preference alone is not enough to deprive the mother of custody. Admittedly, the illegitimate father is not at an advantage here because the law automatically prefers the child’s mother as the custodian, particularly for children below 7. Even if the child does not seem to want to be with the mother, the court may ask a social worker to investigate the situation of the child and come up with a report on this. They can also say that precisely, it is best to let the child stay with the mother because the bond needs to be strengthened after years of not being able to see the child. The amount of support does not have anything to do with the amount of time that the child spends with the father. What is considered in setting the amount of monthly child support is everything that the child needs such as food, clothing, medicines, transportation, education, etc. I strongly suggest that you let cooler heads prevail so that the parents can properly negotiate a peaceful arrangement for visitation for the child’s sake. Fighting in court will only cause untold stress for the child. I hope this helps.

      Reply
  25. gelene

    Follow up to my comment, may I ask atty, does mother leaving the child to his father and his family for 3 years can be a ground to deprive her of custody? Please enlighten us. Thank you.

    Reply
    1. Atty. Post author

      Gelene: If the child is with the father only temporarily, then it may not necessarily be abandonment. But the father may cite that as a ground and may show other circumstances to show that you neglected your child in those years. You’ll just have to show the valid reasons for leaving your child TEMPORARILY- maybe you worked abroad and continued to send support? Were you ill? It really depends on the actual circumstances of the case.

      Reply
  26. mary therese

    Goodevening atty.

    My husband and i lives here in japan, our son is only 2years old. I havent seen my son for a month. I wanted to have my son so bad. Pinalayas ako ng asawa ko and his mom because i had an affair. Nagawa kong makipagrelasyon sa iba because my husband is too abusive. Mula ng makaranas kasi ako ng pananakit ng asawa ko, nawala lahat ng nararamdaman ko for him. Atty, is it possible for me to have my son back in my arms kahit nandito kami sa japan? And, pwede ba nila idahilan yung mnkipagrelasyon ako pra hindi mapunta saken baby ko? My son needs me.he is just two years old. Please help me atty. Thank-you. Hindi ako nawawalan ng pagas, na saken mapunta ang baby ko

    Reply
    1. Atty. Post author

      Mary Therese: Since the child is legitimate, parental authority is jointly exercised by BOTH father and mother. If you are already in another relationship, you may have to legally end the first marriage and ask for child custody. However, you must be prepared for the father to say that you abandoned the child and that your live-in relationship with another man who you are not married to can be considered immoral…both abandonment and immorality may be compelling reasons for depriving a mother of child custody.

      Reply
  27. Jhie ******

    Gud evening atty.. I just want to ask for this situation.. A mother of a 5 year old child committed immorality specifically adultery.. She abandoned her only child just to be wth a married man.. The custody will be given to the father of the child.. But what if the mother requested to see and to be with her son? Could it be possible that the court will grant it?

    Reply
    1. Atty. Post author

      Jhie: Yes, even if the child’s mother committed adultery, the law does not prohibit the mother or any parent (even the father) from seeing her child. Considering the young age of the child, the mother can even ask for sole custody and let the child’s father prove in court the fact of abandonment and immorality before the court can take the child away from her.

      Reply
  28. Sarah

    hi!

    Magtatanong lang po sana ako. Maghihiwalay na kasi kami ng asawa and we have 2 children, 5 yrs old and 3 yrs old. I admitted to him that I had an affair last year pero hindi ko sinabi kung sino. Inamin ko rin yun sa ate nya nung nagusap kami. Now, he is threatening me that he will get sole custody of our children. Gusto kasi niya umalis kasama ang mga anak namin tapos hindi na raw niya ipapakita sa akin kahit kailan. I know one of the compelling reasons I might not be granted sole custody ay pag napatunayan yung affair ko. Do I even have a fighting chance of winning custody kung sakaling aabot kami sa korte?

    Thanks and looking forward to hearing from you.

    Reply
    1. Atty. Post author

      Sarah: Immorality, not mere infidelity, is a ground for depriving a mother of custody. Since your children are under 7 years old, you have a better chance of gaining custody over them. Just be careful with your actions now so as not to make things worse for you. You’ll want to show your best behavior as a mother to your children. If you feel that your marriage has already ended and there is no hope for reconciliation, you may ask a psychiatrist to determine if you or your husband suffer from psychological incapacity and then be the first one to file a case for nullity of marriage and ask for sole custody. It doesn’t matter if you are at fault because the law allows even the party who is affected with psychological incapacity to file the nullity petition.

      Reply
  29. Monz *****

    Hi Attorney,

    Please pardon my ignorance. The tender age rule – is this applicable as an absolute rule? My wife and I are de facto separated – we do not have any formal agreement what to do with our marriage. As I read your blog, My wife is depriving me of a consistent relationship with my children. I guess my question is, does the custody rule for tender age apply only to legally separated marriages, or is it applicable to de facto separations? Thank you for any advice you may give me. Godbless.

    Reply
    1. Atty. Post author

      Monz: De facto separation means that you are still legally married to your wife– in which case, you and your wife exercise joint parental authority. The tender age rule does not apply unless you or your wife go to court and ask for sole custody– in which case, the court will usually apply the tender age rule and grant custody to the mother until the child is 7 years old. But from experience, even with the tender age rule, the family courts now encourage parents to enter into joint custody arrangements where each parent can share time with the child, usually a few days in mom’s house and a few days in dad’s house. I suggest that you ask a lawyer to draft an initial time-sharing agreement and see if the mother will approve it. If not, your next best option for a consistent schedule with your children may be to go to court and ask for joint custody since you are still married to one another. I hope this helps.

      Reply
  30. Keanna **********

    hi atty, good day!
    I am a mother of a 9 yrs old but im working abroad. we parted ways with her dad cause it was too much..he dont have work since 2006 and is not even taking care of our daughter..his living in our house with his gf and our daughter is living with my in laws cause they dont want to give it to me as their reason that they dont want my sister will be the one to take care of her when im away. so I stop sending money directly to him and through my sister she would gave money whenever my daughter needs it and buy things or whatever I would ask her to gave to our daughter.Aside from that I have bought a farm and it was my in laws who was farming it so I just thought my share is going to my daughter since I dont get any share from them. we were married. and I want to get the custody of our daugher and make my sister her guardian since im not around.. is that possible? on the ground of irresponsible father or for any other reason there is? can I tranfer all our properties in our daughters name? and lastly can I fill a annulment even im out of the country? or legal separation?
    Thank you so much for your time!
    hope to hear from you soon..

    kj

    Reply
    1. Atty. Post author

      Keanna,
      You may file a petition for annulment of marriage or legal separation while you are away but your presence wil be required in many occasions for the court to proceed with your case. In the case of annulment, if your ground is psychological incapacity, then you must first consult a psychiatrist or psychologist who is experienced in marriage nullity cases to determine whether either you or your husband is suffering from psychological incapacity. So, your presence is required. You can also ask for sole custody in your petition although in many cases I have noticed that the court will try to get the parents to share custody by letting the child stay with each parent on certain days of the week. This is to allow the child some bonding time and to build a relationship with both parents. Since the child is only 9 years old, she may not yet own properties in her name but when she is at least 18 years old, you may transfer properties to her under a deed of donation. I hope this helps.

      Reply
  31. Monz *****

    Hi attorney thank you very much for your inputs and advice. I was thinking the same too since we are not separated in fact. I thought of that previously – a parenting plan of some sort. However legal separation is the last resort I want to happen bec I do not want my children to grow up in a broken home.

    Thank you so much for your time attorney. God bless you for your kindness.

    Reply
  32. Sharon

    Hi Atty,

    Isa po akong ina na sumusigaw ng katarungan para sa custody ng anak ko, I know may fault ako sa husband ko dahil din sa behavior niya, meaning I cheated on him because of some reasons. When we talk about the custody of my child which is under 7 years old, ayaw niyang makasama ko anak ko gusto niya na lumaki daw po sa puder niya. Tama po bang di niya ako bigyan ng time sa anak ko? Hope you could help me atty. I cant sleep because of his decision na unfair,

    Thanks po and regards,
    Marie

    Reply
    1. Atty. Post author

      Sharon:
      Are you able to see your child regularly? If you separate, both parents are generally entitled to shared custody although one parent will most likely have more time with the child. If the child is under 7, the usual preference of the court is to grant custody to the child’s mother. However, the father may raise issues against the mother in court and depending on what they are, the court may deprive the mother of custody. I always suggest that both parents try to find a peaceful solution to this type of problem. It may not be easy to persuade the father to grant you complete custody because his feelings may be deeply wounded given what you just confessed to him. Sometimes, people say things or make decisions out of anger and often they soften up and realize what’s best for their children. Give him some time to heal and for his anger to subside. Exert best efforts to communicate well and avoid fights that can only aggravate your situation. If after some time has passed, he still does not want to let you see your child, then you may consider getting a lawyer to file the necessary action in court. Hope this helps.

      Reply

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