Dear PAO,
My sister died, and she was survived by my 5-year-old nephew. My sister and my nephew’s father were never married. Upon learning of the death of my sister, the father signified his plan to take over the custody of my nephew from our parents — the maternal grandparents. The father argued that as a surviving parent, he has a better right over the maternal grandparents of a non-marital child. Is this correct?
Rachel
Dear Rachel,
Evidence of parentage is not the sole basis in awarding custody over a minor. To elucidate this point, allow me to lead your attention to our pertinent laws and jurisprudence. In this regard, Article 176 and Article 214 of Executive Order 209, otherwise known as the Family Code of the Philippines, dictates the applicable law involving custody of non-marital child, viz.:
“Art. 176. 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.
Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.” (Emphasis and underscoring supplied)
In connection with the aforementioned provisions of law, the Supreme Court in the recent case of Gabun v. Stolk (GR 234660, June 26, 2023) penned by Associate Justice Antonio Kho Jr., says:
“Where, however, the parental authority is granted solely to the mother as in the case of illegitimate children, the substitute parental authority shall be exercised by the grandparents or the specified persons as provided under Article 214 and 216 of the Family Code, in case of the mother’s death, absence, or unsuitability. Indeed, to read otherwise would effectively permit circumvention of the legislative intent to grant sole parental authority to the mother with respect to their illegitimate children.
“Nonetheless, the foregoing clarification should not be understood to disqualify the father of illegitimate children automatically and absolutely from exercising substitute parental authority in case of the death, absence, or unsuitability of the mother. Indeed, case law in fact recognized that the father of an illegitimate child may exercise substitute parental authority and be given custody in situations where he is the ‘child’s actual custodian,’ as provided under Article 216 of the Family Code.
“Ultimately, in all questions involving the care and custody of minors, it is axiomatic that their welfare and well-being is always the paramount consideration.” (Emphasis and underscoring supplied)
Applying the foregoing, in case of death of the mother of a non-marital child — the substitute parental authority shall be exercised by the grandparents. In a nutshell, the Supreme Court ruled that to read otherwise would effectively permit circumvention of the legislative intent to grant sole parental authority to the mother with respect to their illegitimate children.
Be that as it may, such pronouncement did not mean to automatically disqualify the father of illegitimate children from exercising substitute parental authority since in all questions involving the care and custody of minors, the welfare and well-being of the child is always the paramount consideration.
Thus, the reliance of the father of your nephew on parentage as the sole basis of his position in claiming custody rights is misplaced. In Gabun v. Stolk, we reiterate the words of the Supreme Court:
“In the Court’s view, the RTC’s, overreliance on the evidence of respondent’s parentage in awarding custody over Winston constituted grave jurisdictional error or such whimsical, capricious, and arbitrary exercise of discretion. Not only does this ruling violate the express legal provision granting parental authority to the mother with respect to illegitimate children and in case of her death, to the persons specifically authorized to exercise substitute parental authority. More importantly, such error effectively amounted to an abandonment of its legal and moral duty to rule in the best interest of the minor. It bears reemphasizing that the law and the Rules mandate that the best interest of the minor must be the primordial consideration in the determination of who should rightfully exercise custody and parental authority.” (Emphasis and underscoring supplied)
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]
