The children are always the victims.
The ensuing battle for custody of the minor children
is not only a thorny issue
but also a highly sensitive and heartrending affair.”
– Justice Corona 
A. The Concept of Custody
Custody in General
Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the right to the child’s services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health, and religion. 
Custody as a duty and right
The right of custody accorded to parents spring from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs.  However, the right of a parent to the custody and control of his child is not an absolute one. 
Jurisprudence provides a glimpse as to how the Supreme Court treats the rights of parents to the custody of their minor children. As held in Sagala-Eslao v. Court of Appeals  :
Of considerable importance is the rule long accepted by the courts that “the right of parents to the custody of their minor children is one of the natural rights incident to parenthood,” a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship.  (Emphasis supplied)
The father and mother, being the natural guardians of their minor children, are duty-bound and entitled to keep them in their custody and company. As stated in the Family Code, “[p]ursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.”  Caring for and rearing them, as the provision states, necessarily entails having custody over their minor children.
This primacy of parental custody also finds support in Article 9 (1) of the Convention on the Rights of the Child  which states that, “State parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authority subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child…”
Custody as provided by the law
Parents primarily have custody over their children. All is well and good when the family is living peacefully. But the problem is when there arise irreconcilable differences between the parents, such that the family falls apart. In these cases, the law provides for ways to determine which parent shall have custody of the children. For example, the Family Code provides that:
Article 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. 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 as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent.  (Emphasis supplied)
Another provision  states:
Article 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. (Emphasis supplied)
In case of legal separation of the parents, the law  has likewise provided for custody over the children:
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children.
Art. 63. The decree of legal separation shall have the following effects:
xxx xxx xxx
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and
xxx xxx xxx
As can be seen from the different provisions of the law mentioned above, indeed, the State is greatly concerned with the care and custody of the children when the parents are in the brink of separation.
B. The Three “Parties” in a Custody Dispute
There are three classes of interests, according to Eric G. Andersen, which shape the legal relationship between a child and an adult:
The first is the child’s interest in being in the care of an adult who will provide the best possible protection, nurture, and upbringing. The second is the interest of an adult who seeks the custody or companionship of the child… The third is society’s interest in the form and function of the family, particularly as a child-rearing institution. 
This coincides with the three parties to a dispute in the custody of the child.
In general, there are three parties to a dispute in the custody of the child: first, the disputing parties; second, the child; and third, the State acting under parens patriae.  As stated in Perez v. Samson: 
In cases involving determination as to who should have custody of a minor child, various interests should be considered: those of the parent; of the person to whom the custody of the child is entrusted; of the State, and of the child. Of these, the most important and controlling is that of the child, for, by a proper decision as to that, the other interests are best subserved. 
The constitutional mandate  that recognizes the primary and natural right belongs to the parent in the rearing of children at the same time recognizes the secondary and supportive role of the State.  The State is justified in such interference since the Constitution itself made it the avowed policy of the State to promote the welfare of the youth and to provide for their protection. Thus, the judiciary, as an agency of the State in its role as parens patriae, is called upon whenever a pending suit of litigation affects a minor in order to give priority to his best interest. 
The importance placed in the role of the courts was emphasized in Chua v. Cabangbang,  where the Court held that when the welfare of a helpless child is at stake, it is the duty of the courts, which they cannot shirk to perform, to respect, enforce and give meaning and substance to a child’s natural and legal right to live and grow in the proper physical, moral and intellectual environment. The Court’s intervention is necessary so as to prevent the rights of the child from becoming mere declarations without any force and effect whatsoever.
Statute sets certain rules to assist the court in making an informed decision. Insofar as illegitimate children are concerned, Article 176 of the Family Code provides that illegitimate children shall be under the parental authority of their mother, which, as mentioned above, necessarily entails having custody over them. Likewise, in case of separation of the parents, Article 213 of the Family Code provides that “[n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” It will be observed that in both provisions, a strong bias is created in favor of the mother especially when the children are at a very young age such that they need the loving guidance and protection of their mother. This is especially evident in Article 213 where it may be said that the law presumes that the mother is the best custodian.  This is not intended, however, to denigrate the important role fathers play in the upbringing of their children. 
C. Factors affecting Custodial Determination
When the aid of the courts is being sought after by the parents in determining the proper issue of who as between the two of them are entitled to the custody of the children, absent any agreement between them, the courts are not left without any proper guidance.
According to the Rule promulgated by the Supreme Court
The Rule on Custody of Minors  provides a list of factors to consider in determining as to which parent shall be granted custody over the children. It provides as follows:
SEC. 14. Factors to consider in determining custody. – In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
The controlling factor under the rule is really the rule of the best interests of the child, which will be discussed later on. Other factors enumerated can be taken into consideration in determining custody. However, the rule is silent on the tender years presumption enunciated in Article 213. There is no explicit mention of a situation where the minor is under seven years old; only the situation where the minor is over seven years old.
Tender Years Doctrine
Article 213  of the Family Code enunciates the rule that no child below the age of seven years shall be separated from the mother, except for compelling reasons. The reason for the law is that the welfare of the child is always given priority. In addition, another reason is to avoid a tragedy when a mother would see her baby torn away from her. For no man can sound the deep sorrow of a mother who is deprived of her child of tender age. 
It is universally recognized that the mother is the natural custodian of her young. The proper application of the Tender Years Doctrine, also called Maternal Preference Rule, neither denies nor abridges the equality of rights of the father because the rights of the parents are not the principal issues in a custody case but rather the best interest of the children.  Also, it has been held that the natural inclination to give to the mother the custody of her children of tender years is a recognition that the mother is God’s own institution for the rearing and upbringing of the child, and puts a premium on child culture in the hands of an expert. 
Despite this provision, however, it must be made clear that in controversies involving the care, custody and control of their minor children, the contending parties stand on equal footing before the court who shall make the selection according to the best interest of the child, and not merely based on the age of the child. The maternal preference rule is intended to serve only the function as a “tie-breaker” in those rare instances when parental qualities are so equally balanced between litigants that resort to the preference is necessary.  The child, if over seven years of age, may be permitted to choose which parent he/she prefers to live with, but the Court is not bound by such choice if the parent chosen is unfit. 
In other words, the task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must always be the child’s interests. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration.  This was the pronouncement made by the Supreme Court in Espiritu v. Court of Appeals,  which involved the issue of who, as between the father and the mother, is more suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood.
In that case, the Court of Appeals resolved the question of custody over the children through an automatic and blind application of the age proviso of Article 363 of the Civil Code and of Article 213 of the Family Code, without appreciating the facts involved. The seven-year age limit was mechanically treated as an arbitrary cut off period and not a guide based on a strong presumption. So the Supreme Court reversed and set aside the decision of the Court of Appeals
Best Interests of the Child
The Philippine Constitution recognizes the vital role of the youth in nation-building,  providing for various rights  under the law to ensure his/her maximum protection and development.  In addition, the Constitution also provides that, “the State shall defend the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.” 
The Convention on the Rights of the Child also provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 
Luna v. Intermediate Appellate Court  is an example of the importance that the Court places upon the best interests of the child. This case involved a contest of the custody of a nine year old child, Shirley, who was given by her parents, just two or four months after her birth, to the custody of Mr. and Mrs. Horacio Luna. Horacio was the illegitimate father of Shirley’s mother. The natural parents were awarded custody over Shirley.
When the judgment became final, execution was issued, but a new development happened whereby the child manifested that she would kill herself or run away from home if she should be taken away by the parents from the grandparents.
The Supreme Court ruled that the manifestation of the child that she would kill herself if she should be taken away from her grandparents (the Lunas) and be forced to live with her real parents, which she reiterated in her letters to the members of the Supreme Court and during the hearing before it, is a circumstance that would make the execution of the judgment unfair and unjust, if not illegal. Article 363 (now Art. 213 of the Family Code) of the Civil Code  provides that, in all questions relating to the child, his welfare is paramount. This means that the best interest of the child can override procedural rules and even the rights of parents to the custody of their children. Since the very life and existence of the minor is at stake and the child is at an age where she can exercise an intelligent choice, the courts can do no less than respect, enforce, and give meaning and substance to that choice and uphold her right to live in an atmosphere conducive to her physical and moral, as well as intellectual development.
In another case,  the rule that the welfare of the child must be held paramount in cases involving his care, custody, education and property was applied by the Supreme Court. Art. 363 of the Civil Code (now Art. 213 of the Family Code), was made the basis for upholding the right of the mother of a minor child to be the trustee of certain insurance proceeds that became payable upon the death of the children’s father, despite the fact that when the father insured himself and instituted his child as beneficiary, he expressly appointed his brother to act as trustee during the child’s minority.
The Supreme Court held that there is a recognition in the law of the deep ties that bind parent and child and that in the event there is less than full measure of concern for the offspring, the protection is supplied by the bond required under Article 320 of the Civil Code (Art. 225 of the Family Code). The Supreme Court justified the decision upholding the mother as against the child’s uncle by citing the “added circumstance” that the child was staying with the mother and not the uncle, that there was no evidence of lack of maternal care, and that it was assumed that infidelity to the trust imposed by deceased is much less in the case of the mother than in the case of an uncle.
To reiterate, the child’s best interest, which constitutes the “cardinal principle” and the paramount consideration in custody cases, is not a principle to be placed upon the balance of scales but rather is the measure by which all else is to be decided. 
In all cases, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources as well as the social and moral situations of the opposing parents. 
D. Custody Determination Subject to Change
The Best Interests of the Child is always the paramount consideration in custody cases. Even a final decision subject already to execution of a court granting custody to one party is subject to change, as exemplified in Luna v. Intermediate Appellate Court. 
The Supreme Court itself said that, “Decisions even of the Supreme Court on the custody of minor children are always open to adjustment as the circumstances relevant to the matter may demand…”  The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted. 
E. Parental Rights after Separation in General
Parental authority shall be given to any of the parents who may be designated by the court in case the parents have separated from each other. Although the court may designate the exercise of parental authority on the part of one parent, this designation does not mean that the parental authority of the other parent is necessarily terminated or suspended. Parental authority shall be terminated only if the court so decrees on the basis of the causes for termination or suspension of such authority provided by law. 
The fact that a child under seven years old is placed in the custody of the mother does not deprive the father of parental authority over the child. The father still had the right to supervise the care of such child and to ask for measures conducive to the child’s welfare when the mother did not comply with her duties. 
When the minor children have been placed in the custody of the mother, is the mother entitled to do any act, such as giving up her children for adoption with her written consent, without the consent of the noncustodial parent – the father, thus depriving the latter of his parental authority?
To answer this question, there is a need to look into the laws pertinent to the issue. The law  requires the written consent of the natural parents to the adoption. But not all in circumstances is this absolutely required, such as when the parent(s) has abandoned his/her children. The allegations of abandonment in the petition for adoption, even absent the written consent of the natural birth parent of the potential adoptee, sufficiently vest the court with jurisdiction.
However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he had abandoned his child becomes a proper issue for determination. This issue of abandonment then becomes a preliminary issue that an adoption court must first confront. Only upon failure of the oppositor natural parent to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be considered on its merits, as the Supreme Court said in Cang v. Court of Appeals. 
The Court there held that records disclose that the father’s conduct did not manifest a settled purpose to forego all parental duties and relinquish all parental claims over his children as to constitute abandonment. Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment. While admittedly, he was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care and support for his children.
More importantly, the Court held that the father may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to the mother in the legal separation case. Moreover, the law is clear that either parent may lose parental authority over the child only for a valid reason, since parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. On a final note, the Court said:
Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The rights of parents vis-à-vis that of their children are not antithetical to each other, as in fact, they must be respected and harmonized to the fullest extent possible.  (Emphasis supplied)
Parental authority and responsibility are inalienable and may not be transferred and renounced except in cases authorized by law.  The right attached to parental authority being personal, the law allows a waiver only in cases of guardianship, adoption, and surrender to a children’s home or an orphan institution.  For as the Supreme Court has said:
The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs. It is a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.”
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.  (Emphasis supplied)
Likewise, in Sagala-Eslao v. Court of Appeals [
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