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Parents have the natural right

to care for their children, see to their proper upbringing

and safeguard their best interest and welfare.

This authority and responsibility may not be unduly denied

the parents; neither may it be renounced by them.

Even when the parents are estranged

and their affection for each other is lost, the attachment

and feeling for their offsprings invariably remain unchanged.

Neither the law nor the courts allow this affinity to suffer

absent, of course, any real, grave and imminent threat

to the well-being of the child." – Justice Vitug [1] 


A. Factual and Contextual Background of the Study

People get in and out of relationships all the time. And in the present generation, it is no secret that many people don’t wait for marriage before they engage in sex as part of their relationships. Without the proper protection, and seven to nine months later, a baby is born. But there are people who still believe that the marriage bed should not be defiled, and so they wait for the wedding night before making love, and with that, babies are born.

It is also a fact of life that not all relationships work out – be they simply “boyfriend-girlfriend" or husband and wife. Many times relationships crumble – sometimes with hostility on both parties, but sometimes on friendly terms as well; this is true regardless of the actual length of the relationship – whether it lasted a month, a year, a decade, or even more.

When two people in a relationship decide to end it, there shouldn’t be much of a problem when only the two of them are involved. But it is a different matter if out of that relationship, a child is born. For while the strings of their relation to each other are cut, their ties with their children [2] live on through their blood.

The next question to ask then would be who as between the parents would and should have custody of their children. For non-married couples who separate, the law provides that the child shall be under the parental authority of the mother, [3] who, as a consequence of such authority, is entitled to have custody of the child. [4] 

Between a married couple who is on the brink of separation, sometimes this issue of custody is settled peacefully, as when one parent concedes to let the children live with the other parent, especially when they stay on good terms with each other after the separation. But sometimes this is also a source of dispute between the two separating parents who share the same feeling of animosity. This question has oftentimes been argued before the courts. And the courts will decide based on the circumstances of each case.

In aid of this daunting task of deciding who is a “better" parent to get custody of the children, courts oftentimes make use of the presumption in favor of the mother, otherwise known as the “Tender Years Doctrine" in the Family Code. The complete provision states that:

Article 213. 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 order otherwise. [5] (Emphasis supplied)

Not in all cases, though, will the custody of the children be awarded to the mother, for it is possible that there exists a compelling reason to award the custody of the children to the father. But all things being equal, and with the children being below seven years of age, custody will be awarded to the mother, with the father granted visitation rights [6] over his children, in line with upholding the best interests of the child standard by which all else is measured.

The father normally will not have any problem in exercising his visitation rights when he is in good terms with the mother of his children. But problems usually arise when the relationship ended badly and there is a shared feeling of animosity between the father and the mother, and stuck in the middle of it is their children.

There are times when the children are used as “tools" to get back at their father. There are times when the mother attempts to frustrate (and does succeed to frustrate) the father’s exercise of his visitation rights over his children by making sure that when the time to visit comes, the children are always engaged in some kind of activity or another, so that the father is not able to see his children and just simply be with them. Or she may just altogether deny the father time with his children without any reason at all.

This kind of situation is also detrimental to the children for they are deprived of time that should be spent with their father, more so when the father is not so easily accessible such as when they live far apart. The children then grow up without seeing much of their father, to the point that he is almost like a stranger to them. But this is sometimes without the fault of their father. However, the father has difficulty exercising this right due to the mother’s obstructing efforts.

B. Discussion of the Legal Issues

When a couple separates, custody is oftentimes awarded to the mother, especially if there is no contest from the father, or if the Tender Years Doctrine is properly applicable to the case. The father then is awarded visitation rights to his children. However, there are situations when the exercise of this right to visit is frustrated by actions on the part of the mother of the children.

In these situations, what then can the father do to enforce his right? Is there in fact anything the father can do to enforce his natural and legal right to be with his children? Are these existing remedies effective to ensure that the father will get to spend time with his children? Does the interfering mother face any sanctions or liability for her actions? Are these sanctions enough to deter her from interfering with the father’s visitation? And are these sanctions commensurate to assuage the “damage" caused to the father and the children when they are deprived of quality time? These are the questions that this study hopes to answer in the next succeeding chapters.

C. Objectives of the Study

The primary objective of this thesis is to study the existing remedies available to a father who is being deprived of the exercise of his right to visit his children by the latter’s mother, who has been granted custody over the children after the couple has separated, and to determine if these are efficient and effective enough for the father to be able to invoke them to enforce his rights, as well as determining how the mother can be deterred from interfering with this right.

This thesis also aims to justify the need for a law declaring a policy whereby the father does not bear the burden of proving his fitness just to exercise his visitation right absent any compelling reasons for its denial, but instead shifting the burden to the other side, i.e. the mother, bearing in mind the best interests of the children.

D. Scope and Limitations

This study will only deal with the situation where there has been a relationship resulting in the birth of children where one parent has custody over the children as opposed to the other parent, who could only exercise visitation rights.

It will not cover a situation where someone other than the parents was granted custody over the children, such as when the grandparents are given the custody of the children over that of the natural parents, or when a stranger (meaning someone who has grown attached to the children by some factor other than direct blood link) is given custody over that of the natural parents in consideration of the best interests of the children.

This study will focus on the battle for custody over the children to give an insight into the situation leading to a grant of custody to the mother, and visitation rights to the father, and also as a possible contributing factor to a subsequent obstruction of his visitation rights by the mother. It will, in relation to the battle for custody, touch upon the topic of the Tender Years Doctrine to help explain why in most cases, the mother, as opposed to the father, is granted custody over the children.

This study will also point out the effects on the visiting parent as well as the children when they are deprived of time for visitation, particularly the effect on the children’s development, and also the effect on the part of the noncustodial parent – the father – when he is deprived of time for visitation as well.

Other laws, documents, rules are mentioned in passing only insofar as they are relevant to the topic in that particular part of the study; the thesis, however, does not attempt to make an in-depth study of these other laws, documents and rules.

E. Significance of the Study

The significance of the study lies in the fact that what is involved is not just a life, but many lives – particularly that of innocent children who, as a result of the attempt of the mother to interfere with the exercise of the father of his visitation rights to his children, suffer the loss of not being able to spend time with their father, and as a result, grow up without the guidance of the father, the latter being like a stranger in the park to his own children. The children are not the only ones who are affected by the deprivation, but also the noncustodial parent, i.e. the father, for as a human being, he also yearns for companionship of his own flesh and blood, even if for just a brief moment in time.

This study recognizes that sometimes there are certain acts of the mother, which to her mind are just, but are actually to the detriment of the best interests of the children, for they grow up without a father-figure.

F. Organization of the study

This thesis is composed of seven chapters.

Chapter One is the introduction part of the thesis. It consists of the factual and contextual background of the study, discussion of legal issues, objectives of the study, scope and limitations, significance of the study, and organization of the study.

Chapter Two gives a brief overview about the family and the relationships within it, particularly that of the parent and child. Chapter Three will then talk about custody, where the relationship between the parents break down, to the point of hostility between the two. This chapter will also discuss several factors which affect custodial determination, such as the Tender Years Doctrine, why more often than not, the children end up with the mother instead of the father, and the latter is only given visitation rights over his children. It will also talk about the rights of the parents over their children after separation.

Chapter Four will narrow down to the main topic of this study, which is the visitation rights of the father. It will also discuss the different remedies available to the father to enforce his rights when there is an attempt by the mother to obstruct them, as shown in jurisprudence, and in practice. In addition, this chapter will discuss the importance of continuing the father-child relationship through the exercise visitation for the development of the children.

In line with this, Chapter Five will make a comparison and analysis of the difference in the treatment of the law when the father does acts which are equivalent to obstructing the mother’s right to see her children, and when the roles are reversed. This chapter will also explore justifiable reasons for depriving the father of his right to visit his children, and the possibilities of shifting the burden of proving the father unfit to exercise his visitation rights to the mother, when custody has already been granted to the mother and in that decision granting custody, there has been no express declaration by the court that the father is unfit to be in the company of his children, instead of the father always being forced to litigate just to enforce this natural right of his. In addition, there will be a comparison between the rights of a father over his legitimate children as opposed to a father over his illegitimate children. Lastly, there will be a discussion of the effectiveness of the remedies in addressing the mother’s intentional interference with the father’s visitation rights.

Chapter Six will constitute the concluding part of this study. And lastly, Chapter Seven will discuss several recommendations to improve the father’s exercise of his right to visit his children who are in the custody of their mother.

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