Where Do The Kids Go When Married Couples Separate?

In case you missed it, Annabelle Rama made several statements about her son, Richard Gutierrez, and daughter-in-law, Sarah Lahbati's rumored split.

First, Annabelle confirmed that Richard is currently staying in her house for a month. She added that their kids, Zion and Kai, are in Richard’s care at the moment, saying: “Si Richard, nasa bahay ko ngayon, one month na…Ngayon, ang mga bata na kay Richard.”

She further said, “Nakikita mo naman, hindi mo na kailangang magsalita pa. Nakikita mo na yan. Si Richard trabaho nang trabaho, ‘yung isa nagwawaldas ng pera. ‘Yun lang ang masasabi ko diyan.”

One statement stood out for us—the one where she mentioned that the kids are currently in Richard’s care. So, the question arises: where do the children go when a married couple decides to separate?

Who gets the children when unmarried parents separate?

In the event of separation for unmarried parents, children are considered illegitimate. The mother automatically assumes sole custody and parental authority, regardless of the child's age or the father's expression of paternity. In the strictest sense, the mom will have the sole custody of the child, which means that the father cannot overrule her when it comes to important decisions regarding the child.

Who gets the children when married parents separate?

For married couples with legitimate children, Article 213 of the Family Code of the Philippines dictates that parental authority, in case of separation, is 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.”

Furthermore, it specifically states that for children under seven years of age: “No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”

When can a mother lose child custody?

Full custody is almost always awarded to the mother, unless the mother is found guilty of subjecting the children to any type of abuse. The following are compelling reasons wherein a mother might lose child custody:

• Insanity
• Neglect
• Abandonment
• Immorality and unemployment
• Habitual drunkenness
• Drug addiction
• Maltreatment of the child
• Affliction with a communicable illness

Children older than 7 years old are given the right to state their preference. However, the court will still have the final say on who gets the custody–ensuring that the parent or the person it will be given to is deemed fit for the role.

The Family Code recognizes and prioritizes the parents’ authority and responsibility over their children. Article 209 states, “Pursuant 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.”

Furthermore, it states the State’s limitations in interfering with this parental right, stating, “The State ought not to interfere with the right of parents to bring up their child unless its exercise causes potential harm to him. The State steps in, through the law, only if there are compelling reasons to do so. State intrusion is uncalled for where the welfare of a child is not jeopardized.”

Does the mother automatically get full custody of the children when they are under 7 years old?

The law recognizes the parents' authority in determining what is best for their child. Both the mother and father, whether married or not, are presumed fit and competent to act in their children's best interests. Hence, they can agree to share parental authority or parental custody even when they decide to separate or live in different homes. For example, a voluntary joint custody could mean that the mother gets the children during school days, while the father gets them on weekends. This means that if the separating parents can arrive and agree on a joint custody agreement for their children, then the law and courts will have to respect their decision.

However, the preference for mothers’ custody especially for kids below 7 years old comes into play when the courts are compelled to resolve custody fights between separated parents.

Who gets the children if parents are deemed unsuitable for custody?

If parents are deemed unsuitable for custody, Article 214 applies. It states, “In case of death, absence, or unsuitability of parents, substitute parental authority shall be exercised by the surviving grandparent.”

If the children have several surviving grandparents, then the court will determine who can best take care of them after taking into account all relevant considerations.

If there are no surviving grandparents, the next to consider are the oldest fit and qualified brother or sister who should be over 21 years old, or an actual fit and qualified custodian who should also be over 21 years old.