Dear PAO,

I have not been lucky when it comes to relationships. My wife and I were separated for almost four years now. I have been trying to gain custody of our child because my wife always leaves our child with her parents whenever she boards an international cruise ship for work. I brought this matter before the barangay, but my parents-in-law still refused to surrender the custody to me. They claimed that I am an irresponsible dad. Just in case I will proceed with the filing of a petition to gain custody of my kid, am I correct in my assumption that I will be favored by the court because I am a nearer relative than my parents-in-law? What are the factors that will be considered in awarding child custody?

Zenery

Dear Zenery,

The rule governing your problem is AM 03-04-04-SC (RE: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors), issued by the Supreme Court on April 22, 2003. Section 14 thereof provides that:

“In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.

“The court shall also consider the following:

“(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the noncustodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor.

“(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent.

“(c) The health, safety and welfare of the minor.

“(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent.

“(e) The nature and frequency of contact with both parents.

“(f) Habitual use of alcohol, dangerous drugs or regulated substances.

“(g) Marital misconduct.

“(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor.

“(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.”

Child custody affects the interest of the child; hence, the primordial consideration is his or her best interest, and not solely based on the degree of relationship. This is exactly in accordance with the decision of the Supreme Court in Carnabuci vs. Tagaña-Carnabuci and Espiritu, GR 266116, July 22, 2024, penned by Associate Justice Jhosep Y. Lopez, viz.:

“At present, the same law provides that in awarding custody over minor children, courts take into consideration the totality of the circumstances and conditions that are most congenial to the survival, protection and feelings of security of the minor encouraging his or her physical, psychological and emotional development. Thus, custody is not strictly hinged upon the physical presence or proximity of a parent to a child. In fact, the Rule on Custody of Minors provides that a petition for custody may be filed by any person claiming such right.”

Applying the above-quoted decision to your situation, you being a nearer relative to your child, compared to the child’s grandparents, will not be determinative in awarding custody. It is important to emphasize that the best interest of your child will be the primordial consideration of the court, that is to say, the most congenial to your child’s survival, protection and feelings of security that will foster his or her physical, psychological and emotional development. Thus, you or your parents-in-law or even a third person may be granted custody so long as the same will serve the best interest of your child.

We hope that we are able to answer your queries. 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.

Thank you for your continued trust and support.

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].