Cracking the code of child custody
Child custody is one of the most contentious matters that separated parents have to confront in dissolving marital bonds. Based on my experience in family law practice, children often become pitted in cases of the uneventful demise of the marriage of their parents as they inevitably become pawns, especially when parents are not on good terms.
Concerned clients often ask me who gets to keep the children, and how to determine which parent has a better right to custody. There is no clear-cut answer, as custody is determined on a case-to-case basis depending on the unique circumstances of the parties. But there are fundamental principles under the Family Code that specifically govern this area of family law.
Custody, in simple terms, pertains to the control, care, and all aspects that involve the upbringing of a child. The legal basis for custody is laid down in Article 211 of the Family Code, which provides that the father and the mother shall jointly exercise parental authority of persons of their common children. Parents maintain custody over their minor children until the latter’s emancipation, which occurs when they reach the age of majority.
The above-mentioned article providing for joint parental authority over the children presumes that the parents are married, and admits of exceptions. For unmarried parents, Article 176 of the Family Code provides that illegitimate children shall be under the parental authority of their mother, which likewise covers custody.
Concerns regarding custody often only arise when the parents separate. What happens to the custody over the children? And considering that they are caught in the middle, do children really have a choice with respect to their custody arrangements?
Article 213 of the Family Code clarifies what happens in this complicated scenario and provides guidelines that the court must consider in determining which parent is awarded custody over the children. The pertinent provision provides as follows: “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.”
At face value, custody cases appear to be complex, given the several factors to be taken into account, such as finances and logistics, among other things. However, courts are duty-bound to prioritize the best interest of the child, which is the most important consideration. All matters on custody are decided based on what would be most beneficial for the children, and it takes precedence over the convenience and preference of the parents.
Given these guidelines, the court may decide to award joint custody or sole custody over the children to both parents or one of them. In cases where sole custody is awarded to one parent, the other parent may only be granted visitation rights, if the court deems it appropriate.
As to whether children have a choice on who has custody over them, the court gives significant weight to their preference once they reach seven years old or above. This is because of the tender-age presumption, which presumes that children of a “tender age” (that is, below seven years old) are better off under their mother’s care, unless she is deemed unfit.
While custody over the children may be the subject of a compromise agreement between parents who decide to amicably settle the matter, the child’s best interest is still paramount. This was reiterated in the most recent case of Empuerto vs. Cabrillos (G.R. 268979, 5 February 2025), where the Supreme Court ruled that the best interests of the child prevail over parental custody agreements, thus:
“[A child’s rights] are not and should not be dependent solely on the wishes, much less the whims and caprices, of [their] parents. [Their] welfare should not be subject to the parents’ say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the rights granted to [them] by law.
Ultimately, this is a timely reminder that in all cases involving custody, we must all be conscious to uphold and protect the best interests of the children, who deserve to be nurtured, cared for, and loved.
Research assistant: Atty. Lauren Isabel S. Ong
