JOSE and Maria fell in love and begot a child named Elvis. Jose meant to marry Maria but one day, but when the child was 3 years old, it became apparent that the couple could no longer repair their withered relationship. Jose and Maria’s breakup was acrimonious and there was no discourse on the arrangements with respect to Elvis.
It is safe to say that Jose no longer loves Maria. However, he longs for his son. Jose has not seen Elvis since he was forced to leave the mother and child. He has since tried to reach out to Maria to discuss the rearing and custody of Elvis, but his efforts were met with sheer disappointment. Jose is determined to bring this matter to court for its disposal.
It has to be clear to Jose, though, that since Elvis is an illegitimate child, parental authority over his person is vested with Maria. Article 176 of the Family Code is clear that illegitimate children shall be under the parental authority of their mother. Under Article 209 of the said Code, parental authority and responsibility shall include the caring for and rearing the child for civic consciousness and efficiency and the development of the child’s moral, mental and physical character and well-being. Given these responsibilities, custody over the child is given to whoever has parental authority over the child—Maria, in our example.
However, this right is not absolute in view of the primary consideration given by the law to the well-being and best interest of the child. The custody over the child can be wrested from the mother if compelling reasons are shown that would render her seriously incapable of taking care of the child and attending to the child’s needs, such as neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction of communicable illness (Perez v Court of Appeals).
Only when parental authority and custody is taken from Maria can Jose take her place. This is because in default of the mother, the custody of the child must be granted to the father, pursuant to the hierarchy provided by the law:
“Article 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in theorder indicated:
(1) The surviving grandparent, as provided in Article 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.”
While it may be argued that the grandparents should take the place of the mother of the illegitimate child, it must be noted that the law requires that it must first be in default of “parents”. It certainly does not distinguish as to the legitimacy or illegitimacy of the child.
Absent such compelling reasons to deprive Maria of parental authority and custody over Elvis, Jose’s rights over Elvis is limited to visitorial rights. Should Maria deprive Jose access to Elvis, Jose may bring the matter to court to compel Maria to grant access to Elvis.