Dear PAO,
My wife and I were blessed with a 4-year-old baby girl. When she left to work abroad, our child was left in my care and custody. We tried to save our marriage. But unfortunately, we later separated due to constant fights and disagreements. When she returned from abroad, she wanted to take the custody of our child. Which of us will have custody of our baby?
Mateo
Dear Mateo,
In the case of Nerissa Z. Perez vs The Court of Appeals (Ninth Division) and Ray C. Perez (GR 118870, March 29, 1996, Ponente: Associate Justice Flerida Ruth Pineda-Romero), the Supreme Court elucidated:
“When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It provides:
“ART. 213. 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 order otherwise. x x x
“The provisions of the law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the word ‘shall’ in Article 213 of the Family Code and Rule 99, section 6 of the Revised Rules of Court connotes a mandatory character. x x x
“The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code Commission:
“The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for ‘compelling reasons’ for the good of the child; those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation. (Report of the Code Commission, p. 12)
“x x x x x x x x x
“The general rule that a child under seven years of age shall not be separated from his mother finds its raison d’etre in the basic need of a child for his mother’s loving care. Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority.
“In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.
“It has long been settled that in custody cases, the foremost consideration is always the welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ x x x
“x x x The mother’s role in the life of her child, such as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mother’s love has been immortalized times without number, finding as it does, its justification, not in fantasy but in reality.”
It is clear from the foregoing that, as a rule, a child younger than seven (7) years of age shall not be separated from his/her mother, considering the basic need of a child for his mother’s loving care. Accordingly, in your case, the custody over your 4-year-old child should be given to your wife (being the mother of your child), unless there is/are compelling reason/s for the best interest of the child to justify the awarding of the said custody to you or to anyone other than her.
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 on.
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]
