Dear PAO,

I am a father separated from my ex for five years. We have a child living with her parents. I give 30 percent of my earnings for support — food, school, everything. I never missed a payment. But my ex controls all contact. I can only message or see my child on birthdays, and only if she allows it. Last video call, my child looked thin, dirty and neglected. It broke my heart. Can I go to PAO for help? We were never married, so I have no custody rights. But I need to see my child and make sure he is safe. Is there a way to force visitation or report her neglect? I just want my child healthy and cared for.

-Jon C.N.A

Dear Mr. C.N.A.,

In cases of nonmarital children — or those born without the benefit of a marriage, sole parental authority rests with the mother. This is very different from marital children where both parents jointly exercise parental authority. Article 176 of the Family Code clearly provides that while nonmarital children have the right to use the name of their fathers and to receive support from them, sole parental authority rests with the mother only:

“Article 176. 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…”

In cases where the mother has died, declared absent or unsuitable, substitute parental authority will be exercised by other persons who are deemed by the law to be suitable to care for the child. Articles 214 and 216 of the same Code provide:

“Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.”

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“Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

“(1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one (21) years of age, unless unfit or disqualified; and (3) The child’s actual custodian, over 21 years of age, unless unfit or disqualified.”

In several cases, the Supreme Court has emphasized the importance of the welfare and well-being of the minor in all cases involving their care and custody. The courts have accepted that despite Articles 176, 214 and 216 of the Family Code, there may be a “dearth of supporting reasons” to encourage the physical, psychological and emotional development of a minor. “Ultimately, in all questions involving the care and custody of minors, it is axiomatic that their welfare and well-being is always the paramount consideration.” (See Spouses Magdalino vs. Stolk Sr., GR 234660, 26 June 2023, Associate Justice Antonio Kho Jr.).

In your case, if you think that the care and welfare of your child may be in jeopardy and those charged by law to exercise parental authority are absent or unable to care for your child, you may approach the PAO and submit your documents for evaluation for the end purpose of filing a case for a petition for custody, or at the very least, establish a clear framework to exercise your visitation right to your child.

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