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Basic issues in child custody

Published byAtty. FredJuly 5th, 2007 inFamily and

Property Law.99 CommentsCustody of children is one of the most intense aspects in

family litigation. A custody battle could be an

independent case or a mere incident in an

annulment/separation case. Here are some basic matters

relating to custody.

In custody disputes, what is the paramount criterion?

The paramount criterion in custody disputes is the welfareand well-being of the child, or the best interest of the

child. The court, in arriving at its decision as to whom

custody of the minor should be given, must take into

account the respective resources and social and moral

situations of the contending parents. Nevertheless, thisprimordial rule can override the rights of one or both

parents over their children.

What is the general rule as to custody over children?

The general rule is that a child under seven years of age

shall not be separated from his mother, which is based onthe basic need of a child for his mothers loving care.

Article 213 of the Family Codeprovides that [n]ochild under seven years of age shall be separated from the

mother, unless the court finds compelling reasons to order

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otherwise. This is more pronounced in case of

illegitimate children, as the law expressly provides that

illegitimate children shall be under the parental authority

of their mother.

Is this rule absolute?

This rule is not absolute. 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. Negligent and careless failure to perform the

duties of parenthood is a significant element of

abandonment, regardless of actual intention. A strong

basis for a finding of the parents abandonment of his or

her child is found in the case where the parent has left thechild permanently or indefinitely in the care of others,given it to another, or surrendered it entirely.

I left my child to a relative, even signing a document to

such effect. Am I barred from taking back my child?

Parental authority and responsibility are inalienable andmay 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,

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guardianship and surrender to a childrens 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 andit does not constitute a renunciation of parental authority.

Even if a definite renunciation is manifest, the law still

disallows the same.

The rule is that children older than 7 years old are

allowed to state his preference. Is the court bound by

such preference?

While such choice is given respect, the court is not bound

by that choice. The court may exercise its discretion by

disregarding the childs preferenceshould 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. Decisions on custody of children are always open

to adjustment as the circumstances may warrant.