How do courts determine which parent has the right of custody of the children in cases of legal separation, annulment or declaration of nullity?
In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child.
The court may likewise consider the following factors:
(a) the agreement of the parties;
(b) the desire and ability of each parent to foster an open and loving relationship between the child and the, other parent;
(c) the child’s health, safety, and welfare;
(d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent;
(e) the nature and frequency of contact with both parents;
(f) habitual use of alcohol or regulated substances;
(g) marital misconduct;
(h) the most suitable physical, emotional, spiritual, psychological and educational environment; and
(i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit. (Section 4, Rule on Provisional Orders, A.M. No. 02-11-12-SC)