Dear PAO,

My sister died, and she left a minor son. There is now a dispute between the putative father and my parents involving custody over my nephew. One of my relatives claimed that a case study is necessary in order to determine the issue on custody. The father, however, maintained that such a study would surely favor him over my parents. He added that the result of case study favoring will result to the automatic award of custody to him.

Kraveno

Dear Kraveno,

Generally, parental authority over illegitimate children belongs to the mother pursuant to Section 1 of Republic Act (RA) 9255:

“Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”

The paramount consideration affecting minors is their best interest. Still, there are certain factors to consider in awarding child custody, and these were provided in Section 14 of A.M. No. 03-04-04-SC, dated April 22, 2003:

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

Meanwhile, the purpose of a case study awarding custody was discussed in the case of Spouses Gabun vs. Stolk, Sr., GR 234660, June 26, 2023, where the Supreme Court, speaking through Associate Justice Antonio Kho Jr., stated that:

“In this regard, it bears pointing out that while Section 8 of Rule on Custody of Minors uses the word ‘may’ with respect to the conduct of a case study, and thus, subject to the discretion of the trial courts, the same must be exercised with the best interest of the minor always in mind. Thus, courts do not have unbridled discretion to dispense with the conduct of a case study especially when facts and circumstances are presented that may prove detrimental for the safeguarding of the minor’s growth and development. To the Court’s mind, Sections 8 and 14 of the Rule on Custody of Minors were incorporated to additionally arm the courts with the appropriate guidelines and tools to ascertain, with more or less sufficient definiteness, the most congenial situation for the survival, protection, and feelings of security of minors encouraging to their physical, psychological, and emotional development.”

Applying the above-quoted decision to your situation, the conduct of a case study involving child custody is merely permissive and the same must be exercised bearing in mind the best interest of the child. True, the case study is incorporated in the rules to arm the court with guidelines and tools to ascertain what would serve the best interest of the child, but it is not the sole nor primordial factor to be used by the courts. Rather, the court will still look at the totality of all the circumstances and conditions to determine the most congenial to the survival, protection, and feelings of security of the minor encouraging to his or her physical, psychological and emotional development. Clearly, the father’s statement that a study favoring him will result to the automatic grant of child custody has no legal basis.

We hope that we were able to answer your queries. This advice was 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.

We appreciate your 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]