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  • Who Has Custody of the Child When the Parents Who Are Not Married Separate?

    A quick guide for unmarried and separated parents: 5 questions on child custody laws
    by Rachel Perez . Published Aug 8, 2019
Who Has Custody of the Child When the Parents Who Are Not Married Separate?
  • Couples who were never married but have children together are recognized under Philippine law as a family unit. If and when their relationship does not work out, the law seeks to ensure the safety and welfare of the child whose status is categorized as illegitimate under the law.

    Ending a romantic relationship does not (and should not ideally) sever parental duties. Here’s what unmarried and separated parents need to know about Philippine child custody laws:

    If you and your ex were not married, who gets custody of your child?

    Illegitimate children are automatically under the sole custody and parental authority of the mother. The age of the child or whether the father expressed paternity and consent to the child using his surname doesn’t matter. In the strictest sense, the mother, having sole custody of the child, also means the father cannot overrule her when it comes to important decisions regarding the child.

    The father, however, also has the right to care for and be involved in raising his child. While the mom has sole legal custody, she and the father can still practice co-parenting and raise their child together.

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    Who will get custody of the child if something happens to the mother?

    Under the law, the surviving maternal grandparent will automatically get custody. If the grandparents are not able to take care of the child, the court may grant custody of the child to one of his mother’s siblings or a suitable guardian over age 21. If the mother has a preferred guardian, the court still decides whether to give approval or not.

    The child’s biological father has every right and can claim custody and sole parental authority over the child. But he will need to prove that he is the father via paternity test or other means. The law tends to favor the natural parent (the father) unless the maternal family can prove that he is unfit to be a parent and cannot be granted custody even in the mother’s absence.


    Is the father entitled to visitation rights?

    Yes, the father is entitled to child visits, and sometimes, temporary custody of the child, with the mother’s consent. Visitation schedules are usually settled privately and agreed upon by both parents based on what’s best for the child. There are no strict legal rules on it, and the child may have a say about it when he’s old enough to understand the situation.

    You can also have the child visitation agreement (as well as child support agreement) recognized by the law, so you can invoke the power of the court in enforcing rights and obligations found under the agreement.

    More importantly, however, children who are born to unmarried couples are entitled to child support, and financial support is the responsbility of both parents. 

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    Can the mother refuse to give the father visitation rights to their child?

    Unless you can prove to the court that the father’s visits will be detrimental to the child, he is entitled to visitation rights. Having sole custody of the child, the mother may impose reasonable limitations to how much time the father spends with his child.

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    If you think the father should not be allowed to access to his child, you can file a Barangay Protection Order, Temporary Protection Order (TPO), or Permanent Protection Order (PPO) with the Family Court in your city to deter him from getting anywhere near you or your child.

    One possible grounds for filing a protection order is if the father abuses the mother or the child in any way. The mother needs to prove to the court that the protection order is necessary.

    If granted, it prohibits the father from harassing, annoying, and communicating with you in any way, and direct him to stay away from you and your family or places such as your house, office, and your child’s school.

    If the child is taken away without the consent of the mother, who has sole custody of the child, and what legal actions can be made?

    It’s instances like this why some parents opt to have their visitation agreement recognized by the law. Say the father of the child did not abide by the agreed-upon visitation schedule by not returning the child to the mother, or by holding the child longer than was agreed upon. The mother can file a civil and/or criminal case against him under RA No. 9262 or The Anti-Violence Act against Women and Children. She can also file a petition for contempt against him if his actions violated any court order that has been set before the alleged incident. Filing kidnapping charges under the Revised Penal Code is also an option.


    Excerpts in this article were taken from the September 2013 issue of Smart Parenting magazine, which was based on The Family Code, The Solo Parent Act, and Anti-Violence Against Women and Their Children Act plus interviews with lawyers Gian Navarro of Reyes Cabrera Rojas & Associates, and Nikki Jimeno of Jimeno Cope and David Law Offices, as well as family law expert Jose Gabriel Benedicto from Romulo, Mabanta, Buenaventura, Sayoc & de los Angeles Law Firm an 2010 article on SmartParenting.com.ph.

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