Preferred right

Under Article 176 of the Family Code, illegitimate children shall be under the parental authority and custody of the mother. But if the mother is out of the country, is the biological father entitled to the custody of said illegitimate child? This is the issue raised in this case between Hazel and Alvin.

While both were working in Japan and cohabiting as live in partners, Hazel and Alvin begot a son, whom they named Sonny as appearing in his birth certificate. Eventually they parted ways as Alvin had an illicit affair with another woman. Hazel on the other hand also got married to Hiroshi Sato, a Japanese national as she continued working there. So when Sonny was about two years old, Alvin caused his minor son to be brought back to the Philippines to be under the custody and care of his parents who are both retired and receiving monthly pensions.

Alvin subsequently came back to the Philippines and stayed with Sonny at his parents’ residence. When Sonny was about four years old and studying at a nursery school, Alvin alleged that Hazel’s sisters, Celia and Risa came to their house on the pretext of visiting Sonny and requested that they be allowed to bring him at a Mall with a promise to bring him back in the afternoon. Sonny agreed but Risa and Celia did not bring Sonny back as they promised.

Alvin said that he tried to look for his son and get him back but could not locate him even as he went to the province of Hazel’s parents. He even sought the assistance of the police and the DSWD but to no avail. So he filed a petition for a Writ of Habeas Corpus before the Court of Appeals (CA) against Hazel and her two sisters Celia and Risa. Acting on said Petition, the CA issued an order requiring Hazel, Celia and Risa to appear in court bringing Sonny with them.

In reply to the petition, Hazel denied that Alvin was the one who brought Sonny to the Philippines and claimed that she was the one who brought their son here pursuant to their agreement. He also denied that her sisters took Sonny from Alvin or the latter’s parents. She alleged that she was the one who took Sonny from Alvin when she returned to the Philippines and Alvin agreed. She also alleged that Alvin was deported from Japan under an assumed name for violating Japanese laws and has not been gainfully employed here. Sonny’s custody, she alleged was entrusted to Alvin’s parents when they were both working in Japan.

While the petition was pending before the CA, Alvin learned that Hazel and her two sisters were preparing the travel papers of Sonny, so the child could join Hazel and her husband Sato in Japan. So Alvin filed an Urgent Motion for a Hold Departure Order (HDO). But the CA denied the Motion for lack of merit. Hence Hazel was able to bring the child with her to Japan where he is studying now.

Applying Article 213 of the Family Code (Par. 2), the CA awarded the custody of Sonny to his mother Hazel. While acknowledging that Alvin truly loved and cared for his son, the CA nevertheless found no compelling reason to separate the minor from his mother. Alvin was just granted visitorial rights.

But Alvin still questioned this ruling before the Supreme Court. He contended that while Hazel has preferential right to the custody of their son, custody should be awarded to him every time Hazel leaves and goes back to Japan and during the period that she stays there. So, if Hazel is in the country, she will have custody, but when she is abroad, he should have custody as the biological father, Alvin argued.

The SC however ruled that Alvin is wrong. In the first place the child is presently in Japan already with his mother Hazel where he is studying. So the petition has become moot and academic. Secondly, having been born outside of a valid marriage, Sonny is deemed an illegitimate child of Alvin and Hazel, and pursuant to Article 176 of the Family Code (FC), illegitimate children shall use the surname of the mother and shall be under the parental authority and custody of the mother. This is the rule regardless of whether the father admits paternity. Recognition of an illegitimate child by the father as in this case could only be a ground to give support to but not custody of, the child.

Thus, there is no question that Hazel, being the mother of and having sole parental authority over the minor, is entitled to have custody of him. She has the right to keep him in her company. She cannot be deprived of that right, and she may not even renounce or transfer it, except in cases authorized by law. Not to be ignored in Article 213 of the FC is the caveat that, generally, no child under seven years of age shall be separated from the mother except when the court finds cause to order otherwise (Briones vs. Maricel, Francisca and Loreta Miguel, G.R. 156343, October 19, 2004)

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