The right of custody over children accorded to parents spring from the exercise of parental authority. Pursuant to the natural right and duty of parents on the person and property of their minor children, parental authority and responsibility shall include caring and rearing them for civic consciousness and development of their moral, mental, physical character and well-being[Article 209, Family Code]. Parental authority and responsibility may not be renounced or transferred[Article 210, Family Code]. The father and the mother shall jointly exercise parental authority over their common children. In case of disagreement, the father’s decision shall prevail, unless there is judicial order to the contrary [Article 211, Family Code]. In case of absence or death of either parent, the parent present shall continue exercising parental authority [Article 212, Family Code]. In case of separation of parents, parental authority shall be exercised by the parent designated by the Court [Article 213, Family Code]. In case of death, absence or unsuitability of both parents, substitute parental authority shall be exercised by the surviving grandparent [Article 214, Family Code]. In default of parents, the surviving grandparent shall exercise substitute parental authority [Article 216, Family Code]. Illegitimate child shall be under the parental authority of the mother [Article 176, Family Code].
When the mother is absent [either because she works abroad or is dead], who has a better right to custody of an illegitimate child – the father or maternal grandparents?
Our Supreme Court decided the issue in Sps. Gabun, et. al. v. Stolk, Sr., G.R. No. 234660 on 26 June 2023that was uploaded on 25 June 2024. In this case, an American and Filipina lived together as husband and wife without being married for four years in the U.S.A. The Filipina returned to the Philippines to give birth. She died after giving birth on July 22, 2007. The child’s collateral grandparents [siblings of the boy’s biological grandparents] took the boy in their custody and care. After seven years, the American father went to the Philippines and to get custody of his child, filed a petition for habeas corpus [legal suit to question one’s deprivation of liberty or rightful custody over any person]. Due to the death of the mother and DNA test result proving his paternity, the RTC [Regional Trial Court] granted the petition and awarded to the father the child’s custody applying Article 212 of the Family Code. It denied the grandparents’ appeal on technicality for not being timely filed. The petition for certiorari [a suit to question the grave abuse of discretion of a court] filed by the grandparents was denied by the CA [Court of Appeals] as the judgment has become final. The grandparents appealed to the SC [Supreme Court].
What is ultimately at stake here is the custody over the child and thus, the paramount consideration must be his best interest. This is clear in the Family Code and Rules on Custody of Minor. It bears stressing that in all questions relating to the care, custody, education and property of the children, their best welfare is paramount. As a rule, the father and mother shall jointly exercise parental authority over the persons of their common children. However, with respect to illegitimate children, Article 176 of the Family Code explicitly grants sole parental authority to the mother, notwithstanding the father’s recognition of the child. ln the exercise of that authority, mothers are thus entitled to keep their illegitimate children in their company, and the Court will not deprive them of custody, unless the mother is unfit. In case of death, absence or unsuitability of the parents or the mother of illegitimate children, the surviving grandparent shall exercise substitute parental authority per Article 214 of the Family Code. It must be clarified, however, that the foregoing interpretation finds application only in situations where the father and mother jointly exercise parental authority over the persons of their common children under in Article 211 of the Family Code. But, where parental authority is granted solely to the mother as in the case of illegitimate children, substitute parental authority shall be exercised by the grandparents. To read otherwise would effectively permit the circumvention of the legislative intent to grant sole parental authority to the mother with respect to illegitimate children. In this case, since Stolk and Daen were not married, Daen had sole parental authority, including custody, over their child. But, since she is already dead, the
the maternal grandparent, who had actual custody has a better right than the father. Thus, the RTC erred in awarding Stolk custody of the child based solely on parentage and in applying Article 212 instead of Article 176 of the Family Code.
