Mother has sole custody of child below 7 years old
"My husband and I have been separated the past two years. I have the sole custody of our three-year-old son after my husband decided to live in Japan with his girlfriend. My husband now wants to have the sole custody of our son because, according to him, our son would have a brighter future in Japan. I love our son so much and I cannot live without him. I do not want our son to live with my husband and his girlfriend. Is my husband really entitled to the sole custody of our son?
To answer your question, we shall refer to Article 213 of the Family Code of the Philippines, to wit:“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 do otherwise.” (Emphasis supplied)Moreover, Article 363 of the New Civil Code of the Philippines provides: “In all questions on the care, custody, education and property of children the latter’s welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.”
In the case of Herald Black Dacasin vs Sharon del Mundo Dacasin (GR 168785, Feb. 5, 2010), the Supreme Court through Senior Associate Justice Antonio Carpio discussed:“Upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of two separated or divorced spouses. Simply put, for a child to within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213. xxx The imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eight year until the child’s emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. xxx” (Emphasis supplied)Applying the above-mentioned law and jurisprudence in your situation, you can have the sole custody of your son since he is below 7 years old. The mother takes sole custody under the law if the child is below 7 years old upon separation of the latter’s parents. The sole foremost consideration is the physical, educational, social and moral welfare of the child. The respective resources and moral situation of the parents must also be taken into consideration. Furthermore, the welfare of the child should always be the paramount consideration in considering the parent who would have custody of such child.We find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. Thus, the opinion may vary when the facts are changed or further elaborated. We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to ."
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"Mother has sole custody of child below 7 years old"
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and updated on 15 September 2021