Dear PAO,

I converted to Islam sometime in 2010 and married my husband, who is a Muslim, six months later. Unfortunately, after our marriage, he manifested an unbearable attitude, and he was very jealous. We eventually separated. I reverted to Christianity and now I live with my minor son in Quezon City. My husband is contemplating filing a case before the Sharia Court to obtain custody of our minor son, claiming that I am unworthy as a mother. I would like to know as to what law (the Code of Muslim Personal Laws or the Family Code) should be followed on the issue of custody for our son.

Sharee Ann

Dear Sharee Ann,

Generally, the husband and wife shall exercise joint parental authority over their children. This is provided under the following provisions of both the Family Code of the Philippines (Executive Order 209, s. 1987) and The Code of Muslim Personal Laws of the Philippines (Presidential Decree 1083, s. 1977):

“Article 211, Title IX of the Family Code of the Philippines:

“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 reverence towards their parents and are obliged to obey them as long as the children are under parental authority.”

“Article 71 of The Code of Muslim Personal Laws of the Philippines:

“Who exercises. – (1) The father and the mother shall jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate and acknowledged children. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary.”

Both laws clearly recognize joint parental authority over the children, and the same cannot be removed unless the concerned parent is deemed unfit. Since the issue of custody involves the interest of the child, we would like to emphasize that the paramount interest of the latter shall always prevail. This is in consonance with the pronouncement of the court in the case of Grande vs. Antonio, GR 206248, Feb. 18, 2014, where the Supreme Court, through Associate Justice Presbitero Velasco Jr., said that: “It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is their best interest. xxx”

Thus, in custody cases, more than the applicable law, the paramount consideration is the best interest of the concerned child. However, please note that the Supreme Court has already settled the issue of what law to apply in custody cases. In the earlier case of Artadi-Bondagjy vs. Bondagjy, et. al., GR 140817, Dec. 7, 2001, involving a situation similar to yours, the Supreme Court, through Associate Justice Bernardo Pardo, said that the Family Code of the Philippines will apply, viz.:

“xxx. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim.

“Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.”

Nonetheless, in the recent case of Malaki and Salanatin-Malaki vs. People of the Philippines, GR 221075, Nov. 15, 2021, the Supreme Court, through Associate Justice Marvic M.V. F. Leonen, clarified that it is not the religion of the parties at the time of filing the complaint that is material, but rather the law that governs at the time the marriage was celebrated, albeit as an orbiter dictum, viz.:

“Artadi-Bondagjy v. Bondagjy must be revisited when a proper case calls for it. There, petitioner converted to Islam and married a fellow Muslim under Muslim rites. She reverted to Catholicism upon her separation from her husband. In granting her custody of their children — which is merely incidental to the couple’s separation — this Court applied the Family Code, ruling that the Muslim Code no longer governed since petitioner converted back to Catholicism. This appears to be anomalous. It is inconsistent with how the Muslim Code governs the nature, consequences, and incidents of Muslim marriages and divorce. In contracts of marriage, the applicable law is that which governs at the time of marriage, and is not dependent on petitioner’s religion at the time of filing the suit.”

Applying the above-quoted laws and jurisprudence to your situation, the best interest of the child shall be taken into consideration in all issues affecting their welfare, which includes custody. Both laws (Article 211 of the Family Code of the Philippines and Article 71 of The Code of Muslim Personal Laws of the Philippines) were specific: parents shall exercise joint parental authority over their children, and any parent cannot be deprived of such authority unless he/she is unfit. As to which particular law governs your situation, the standing rule is that the Family Code of the Philippines will apply, but this is subject to further deliberation and reexamination by the Supreme Court.

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]