Child Custody Rule

There is a direct correlation between the rising number of marriage nullity cases and child custody battles. Aside from the usual squabble over the partitioning of conjugal or community assets, the matter of who gets the kids is usually a continuous source of animosity among former spouses.

In all custody, support and visitation issues affecting children, the paramount and inflexible criterion is the interest of the child. In child custody cases involving children below seven years of age, the mandatory provision to reckon with, is what is known as the TENDER YEARS RULE.

 This rule is also known as the maternal preference rule because it states that, “No child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”

Thus, the law presumes that the mother is the best person to rear a child in the tender years.

In order to separate a young child from the mother, the father must go to court, allege the presence of a compelling reason against the mother, and prove the existence of such reason to the court.

What is a compelling reason varies from case to case. In some, the adultery of the mother was not sufficient to deprive her of her custody, while in another, the marital misconduct of the mother was taken into account. The relatively poorer status of the mother, as compared to the father’s, cannot be considered a compelling reason, if the mother’s source of income is sufficient to support her child. Drug abuse of the parent, however, seems to be compelling in all instances.

Where the child is an illegitimate one, the law automatically provides that custody of such is with the mother, consistent with the right of the child to use the surname of the mother.

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5 thoughts on “Child Custody Rule

  1. glo

    does my brother possess right to have access to his 2-year old illegitimate child? he is a loving, good and kind father and provider. without reason, his live-in partner would often take his child away the from him without his knowledge and without knowing their whereabouts or what she’s up to. she only comes back when she wants money. my brother has been hurt for the nth time, but what concerns him most is the welfare of his child. the mother is unemployed. does the law allow my brother visitation rights if custody is too much to ask? he wants to make sure that his child is healthy and well-taken care of. please help my brother. thank you very much.

    1. Christine Florido Post author

      Glo:
      Yes. Your brother is entitled to visitation even if his child is illegitimate.
      He can ask a lawyer to write the mother of the child requesting for access at specified hours and days. If the mother of the child still does not allow visitation, then your brother will have to file a petition for visitation in court. I strongly suggest that this matter be ironed outside of court because the proceedings can be costly and can be emotionally disturbing for the child who may feel the tension between the parents. If the mother and father can agree to a regular schedule, have a lawyer document the agreement and let the parents sign it.

      I hope this helps. Email back for additional queries.

  2. Pingback: Can minor child travel abroad without father's consent | ChristineFlorido.Com

  3. Kevin

    Di ko maintindihan bat naging ganyan ang law sa Pilipinas na pag below 7 years old dapat sa ina mapupunta ang bata. Ang hirap naman para sa tatay na mag bigay ng magagandang reasons para sa kanya talaga mapunta ang bata. Pag maliit pa lang napunta na sa nanay ang bata kahit pa mag 7 years old sya panigurado di naman nya pipiliin ang tatay nya kasi malamang na manipulate na sya ng nanay nya o yung mga kamag anak ng ina. Sa ibang bansa mas pinapaburan nila na sa tatay mapunta ang bata o kahit hindi naman pero hindi porket below 7 years old dapat sa nanay na mapunta ang bata. Parang napaka unfair naman ng law na yan sa tatay. Kasi para sakin ang tatay ang head ng family at ganun na man talaga, sya ang mag tataguyod dito. Pano pag ang head ng family ang nawala? Gano kalaking impact nun ang magagawa sa bata. Lalo na kung lalaki ang anak lalaki sya ng walang father image kaya rin siguro napakarami na ng mga bakla sa bayan natin. Gusto ko lang itanong kung pano mapupunta sakin ang mga anak ko na wala pang 7 years old? Sapat ba na reason na pag sakin napunta ang mga bata ay lalaki sila ng may magandang values at may magandang kinabukasan? Hindi naman lasingera ang nanay nila, di naman nag dra drugs at nasa tamang pag iisip naman. Pwede bang yung unemployment ng asawa ko ang ipanglaban ko sa korte? Sapat na bang reason yun o kailangan pa ng korte ng matitinding reason talaga para lang sa tatay mapunta ang bata? Salamat and Godbless.

    1. Atty. Post author

      Kevin: It’s not only in the Philippines where the law grants a preference for the child’s mother when the child is under 7 years old. It is presumed that the child needs the mother more at a younger age but that does not mean that the father is not entitled to spend time with the child. I assume your children are legitimate. Just remember that in any separation, the child will always have to be with one parent, physically, because it is impossible to divide the child into two. That’s why some parents choose to stay married or together “for the sake of the children”. When things don’t work out, the law has to decide what is “best” for the child and places the presumption that children in their tender years need their mothers more. To illustrate, a toddler who breastfeeds will surely need the mother more. A young child, male or female, has a certain attachment to the mother who is naturally a nurturer. That is why younger children experience separation anxiety usually for their mothers.

      Poor father image is not the only reason why children turn out to be gay. There are studies that will contradict you on that. Anyway, this is a legal blog and I am not an expert on homosexuality but nonetheless, your apprehensions about your male children turning gay because of your separation is not a LEGAL GROUND for depriving their mother of custody. There are compelling reasons you can cite- if as you say, their mother does not suffer from any of those reasons, then I am afraid that your only option is to strike a voluntary agreement with her for custody to be given to you, or at least, to have shared times with your children.

      By the way, I know of several women who have raised their male children on their own, and those boys are responsible and heterosexuals. If the child has a poor father image, the father must reflect on other reasons why– “poor” father image does not mean that the father is absent or not physically present– it may mean that the child sees the father in a negative light, due to traits that the father possesses. I am a single mother– I would prefer that you not mention your homophobic sentiments here.

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