Showing posts with label Parental Authority. Show all posts
Showing posts with label Parental Authority. Show all posts

What is 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. (Santos, Sr. v. Court of Appeals, G.R. No. 113054, March 16, 1995)

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May parental authority and responsibility be renounced or transferred?

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. (Tonog vs Court of Appeals, G.R. No. 122906, February 7, 2002)

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In case of absence, death or remarriage of either parent, who shall exercise parental authority?

The law, as a rule, provides for joint parental authority of parents over their children. If one is absent or is already dead, the surviving spouse shall exercise parental authority. If the surviving spouse remarries, he or she retains parental authority over the children, unless the court appoints another person to act as guardian over the persons and property of the children. (see Art. 212, Family Code)

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In case of separation of parents, who shall exercise parental authority?

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. (Art. 213, Family Code)

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Who has parental authority and custody over illegitimate children?

■ Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.” (Art. 176, Family Code)

 ■ An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care. (Joey Briones vs. Maricel Miguel et al., G.R. No. 156343, October 18, 2004)

■ The fact that the illegitimate child was recognized by the father could be a ground for ordering the latter to give support to, but not custody of, the child. (David v. Court of Appeals, G.R. No. 111180, November 16, 1995)

■ The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor.Of course, the putative father may adopt his own illegitimate child; in such a case, the child shall be considered a legitimate child of the adoptive parent. (Briones vs. Miguel et al., ibid.)

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In custody disputes, what is the paramount criterion?

■ In all cases involving a child, his interest and welfare is always the paramount consideration. (Silva vs Court of Appeals, G.R. No. 114742, July 17, 1997) 


■ The Convention on the Rights of the Child 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.

The principle of best interest of the child pervades Philippine cases involving adoption, guardianship, support, personal status, minors in conflict with the law, and child custody. In these cases, it has long been recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration. (Gualberto vs Gualberto, G.R. No. 154994, June 28, 2005)

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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)

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What is the order of preference in the award of custody?

The court may award provisional custody in the following order of preference:

  1. to both parents jointly;

  2. to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit;

  3. to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified;

  4. to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

  5. to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or

  6. to any other person deemed by the court suitable to provide proper care and guidance for the child.

The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents. (Section 4, Rule on Provisional Orders, A.M. No. 02-11-12-SC)

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What is the general rule as to custody of children below 7 years old?

Article 213 of the Family Code provides that “No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”

 The general rule that children under seven years of age shall not be separated from their mother finds its raison d’etre in the basic need of minor children for their mother’s loving care. In explaining the rationale, the Code Commission stressed thus:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for compelling reasons for the good of the child. (Gualberto vs Gualberto , G.R. No. 156254, June 28, 2005)

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What are the compelling reasons for a mother to lose custody of a child?

■ As a general rule, a mother is to be preferred in awarding custody of children under the age of seven. The so-called tender-age presumption under Article 213 of the Family Code may be overcome only by compelling evidence of the mothers unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease. (Gualberto vs Gualberto , G.R. No. 156254, June 28, 2005)

■ Even a mother may be deprived of the custody of her child who is below seven years of age for compelling reasons. Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. (Tonog vs Court of Appeals, G.R. No. 122906, February 7, 2002)

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What is the rule as to custody of children over 7 years of age?

■ 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. (Art. 213, Family Code)

■ If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice. The court may exercise its discretion by disregarding the child's preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person. (Tonog vs Court of Appeals, G.R. No. 122906, February 7, 2002)

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