Custodial Rights and Visitation Rights of Fathers Over Minor Children in the Philippines

Parental/Custodial Authority. According to the Family Code, this is the parents’ natural rights and
duties over the person of their minor children to raise and rear them for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-being. (See
Article 209 of the Family Code) This covers the right and duty of a parent to bring up a minor child,
and cannot be renounced or transferred except in cases as allowed by the law under Article 210 of
the Family Code.
Article 210, Family Code. Parental authority and responsibility may not be renounced or
transferred except in the cases authorized by law.
Articles 228 and 229 of the Family Code enumerates the instances when parental authority
terminates and may be transferred to another person, to wit:
Article 228, Family Code. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
Article 229, Family Code. Unless subsequently revived by a final judgment, parental authority also
terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental authority;
or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.

Circumstance Relevant Laws

In cases where the child is born out of wedlock,
the parental authority and custody of the child
fall on the mother.
The provisions of Article 176 means that single
mothers have sole parental authority over
their children. Nevertheless, the child’s father
cannot be deprived of his parental rights to have
access to the child if ever he desires to exercise
it. This can also include temporary custody of
the child.
Article 176, FAMILY CODE. Illegitimate children
shall use the surname and shall be under the
parental authority of their mother, and shall be
entitled to support in conformity with this Code.
The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate
child. Except for this modification, all other
provisions in the Civil Code governing
successional rights shall remain in force.
 The Supreme Court, however, in the case of
Briones v Miguel1 and in Tonog v Court of
Appeals2 stated that:

“Only the most compelling of reasons, such as

the mother’s unfitness to exercise sole parental
authority, shall justify her deprivation of
parental authority and the award of custody to
someone else. In the past, the following grounds
have been considered ample justification to
deprive a mother of custody and parental
authority: neglect or abandonment,
unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of
the child, insanity and affliction with a
communicable disease.”

In this case, the father has a remedy to file for a

Petition of Custody with the court. (See A.M. No.
03-04-04-SC)
In the case of married couples, both the father
and mother exercise joint parental authority of
the child. In case of any disagreement between
the spouses, the father’s decision will prevail
unless a judicial order says otherwise, as stated
in Article 211 of the Family Code.
Article 211, FAMILY CODE. The father and the
mother shall jointly exercise parental authority
over the persons of their common children. In
case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary.

Children shall always observe respect and

In cases where the marriage is terminated by
annulment or nullity decree, the Family Code as
stated in Articles 102 (6) and 129 (9) presumes
that any child below seven (7) years of age is
deemed to choose the mother, unless the court
decides otherwise. In all cases, the court shall
take into consideration the best interests of the
child in making its decision.
Article 213 of the Family Code governs when the
couple separate with or without judicial decree.
It deals with two (2) situations, first is when the
child is seven (7) years old or above and second
is when he is under seven (7) years of age.
reverence towards their parents and are
obliged to obey them as long as the children are
under parental authority.
Article 102 (6), FAMILY CODE. Upon dissolution
of the absolute community regime, the
following procedure shall apply:
xxx
(6) Unless otherwise agreed upon by the
parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with
whom the majority of the common children
choose to remain. Children below the age of
seven years are deemed to have chosen the
mother, unless the court has decided
otherwise. In case there in no such majority,
the court shall decide, taking into
consideration the best interests of said
children.

1 G.R. No. 156343, 18 October 2004

2 G.R. No. 122906, 7 February 2002
 In the first situation, the child’s choice of parent,
shall be considered by the court, but it shall not
Article 129 (9), FAMILY CODE. Upon the
be bound by such choice. If the choice points to dissolution of the conjugal partnership regime,
a parent found unfit by the court and thus, not the following procedure shall apply:
for the child’s best interest, then the choice can
xxx
be set aside. (Sy v Court of Appeals3). This (9) In the partition of the properties, the
however, does not preclude the parents from conjugal dwelling and the lot on which it is
agreeing on the custody arrangements they see situated shall, unless otherwise agreed upon by
fit to adopt but this agreement must not the parties, be adjudicated to the spouse with
contravene the provision of the law that the whom the majority of the common children
custody over a child below seven (7) years of choose to remain. Children below the age of
age belongs to the mother. In the case of Dacasinseven years are deemed to have chosen the
v Dacasin4: mother, unless the court has decided
otherwise. In case there is no such majority,
“Simply put, for a child within this age bracket the court shall decide, taking into
(below seven (7) years of age), the law decides consideration the best interests of said
for the separated or divorced parents how best children.
to take care of the child and that is to give
custody to the separated mother. Indeed, the Article 213, FAMILY CODE. In case of separation
separated parents cannot contract away the of the parents, parental authority shall be
provision in the Family Code on the maternal exercised by the parent designated by the Court.
custody of children below seven years any more The Court shall take into account all relevant
than they can privately agree that a mother who considerations, especially the choice of the child
is unemployed, immoral, habitually drunk, drug over seven years of age, unless the parent
addict, insane or afflicted with a communicable chosen is unfit.
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.

It will not do to argue that the second paragraph

of Article 213 of the Family Code applies only to
judicial custodial agreements based on its text
that "No child under seven years of age shall be
separated from the mother, unless the court finds
compelling reasons to order otherwise." To limit
this provision’s enforceability to court
sanctioned agreements while placing private
agreements beyond its reach is to sanction a
double standard in custody regulation of
children under seven years old of separated
parents. This effectively empowers separated
parents, by the simple expedient of avoiding the
courts, to subvert a legislative policy vesting to
the separated mother sole custody of her
children under seven years of age "to avoid a

3 G.R. No. 124518, 27 December 2007

4 G.R. No. 168785, 5 February 2010
 tragedy where a mother has seen her baby torn
away from her." This ignores the legislative
basis that "[n]o man can sound the deep sorrows
of a mother who is deprived of her child of tender
age."

It could very well be that Article 213’s bias

favoring one separated parent (mother) over
the other (father) encourages paternal neglect,
presumes incapacity for joint parental custody,
robs the parents of custodial options, or hijacks
decision-making between the separated
parents. However, these are objections which
question the law’s wisdom not its validity or
uniform enforceability. The forum to air and
remedy these grievances is the legislature,
not this Court. At any rate, the rule’s seeming
harshness or undesirability is tempered by
ancillary agreements the separated parents
may wish to enter such as granting the father
visitation and other privileges. These
arrangements are not inconsistent with the
regime of sole maternal custody under the
second paragraph of Article 213 which merely
grants to the mother final authority on the care
and custody of the minor under seven years of
age, in case of disagreements.”

In the second situation, upon separation of a

couple, it is mandated under the law that the
mother assumes sole parental custody over the
child who is under seven (7) years of age. The
child may be separated from the mother only if
there are “compelling evidence” proving her
unfitness to have custody as in the instances of:
neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or
affliction with a communicable disease. (Hirsch
v Court of Appeals5). In the cited case, the Court
held that: “The “tender-age presumption” under
Article 213 of the Family Code may be overcome
only by compelling evidence of the mother’s
unfitness.”

5 G.R. No. 174485, 11 July 2007

In the case of Dasican v Dasican6, the Court held that the “imposed custodial regime under the Article
213 (2) is limited in duration, lasting only until the child’s seventh (7th) year. From the eighth (8th)
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.
However, notwithstanding the mother’s sole custody of a child below (7) years of age, the father’s
right to visit and see his child remains and is not hampered by Article 213 of the Family Code.
(Salientes v Abanilla7) In custody cases, the “child’s best interest” standard is central to custody cases.
Visitation Rights. This is defined as a relative’s, especially as non-custodial parent’s period of access
to a child. Visitation can be supervised or not supervised. Visitation, as a matter of right is
constitutionally protected under the provisions of Section 12 of Article II of the 1987 Constitution
which provides:
“The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn
from conception. The natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support of the Government.”
In deciding for the visitation rights of a father over his minor child, the Supreme Court in the case of
Habaybeh v Mallare-Phillips8 held:
“Concededly, there is nothing in either the Civil Code or in the Family Code which grants, either
expressly or impliedly, visitation rights to an illegitimate father over his illegitimate child. In the same
breath, however, there is also nothing in both Codes which denies such a right to an illegitimate
father. On balance, we are inclined to believe that the legal obligations imposed by law to an
illegitimate father, like the obligation of support, carries with it at the very least the right of visitation
over the illegitimate child. In fact, no less than the petitioner acknowledged the existence of such
right when she executed a written agreement with the private respondent giving the latter not only
visitation but also temporary custody rights over [the child]. For sure, in filing his complaint in the
respondent court, private respondent is merely seeking the enforcement of that agreement which, to
our mind, may not be said to be contrary to law, morals, good order or public policy.”
The right of visitation is derived from the right of custody and is controlled by the same legal
principles. Thus, as in custody cases, the best interest and welfare of the child is the controlling
consideration. A parent denied custody does not thereby lose his natural right to visit his children,
though the right may be denied if the best interest of the child so demands. And visitation privileges
are ordinarily allowed a noncustodial parent, if it can be done without jeopardizing the welfare of the
child.
The noncustodial parent or the other parent is entitled to visitation privileges as a matter of right
which the court will specify and define in its decision awarding custody. Visitation rights may be
withheld from the noncustodial parent only upon conclusive evidence that the noncustodial parent
has forfeited his right of access by his conduct or that the exercise of the right would injuriously affect
the child’s welfare.

6 Ibid.
7 G.R. No. 162734, 29 August 2006
8 C.A. S.P. No. 25771, November 1991
Despite the existence of a previous agreement regarding the custody and visitation of the children
between the parents, whether the children be legitimate or illegitimate, or a decision expressly
stating the visitation rights of the noncustodial parent, there are still instances when the custodial
parent refuses to honor the previous agreement or the decision of the court. When a parent is being
deprived of his/her visitation rights, he or she may resort to filing an action for “Custody and/or
Enforcement of Visitorial Rights Over a Minor with Application for a Writ of Preliminary
Injunction”. A non-custodial parent may also resort to filing a Petition for Habeas Corpus.
However, in these cases, the visitation right is a mere adjunct to the main case for the custody of the
children, and not the main case involved. In other words, enforcing visitation rights is just ancillary
to a petition for custody or petition for the issuance of a writ of habeas corpus. This is a condition sine
qua non before the court can help in enforcing the noncustodial parent’s visitation rights. There is a
scarcity of jurisprudence tackling the issue of visitation rights of parents as the primary issue.