Dear PAO,

My wife and I separated due to irreconcilable differences. We have a five-year-old child. I learned that my wife intends to work abroad as a nurse and leave our kid to her mother who is residing in a remote barangay in the province. I cannot allow this as life in that barangay is so hard, and I do not want my kid to experience hardship. I talked to my mother-in-law about this matter but she refused to surrender the custody of my kid. She claimed that my parental authority over my kid was already divested because of my separation with her daughter. Is this correct?

Zingkul

Dear Zingkul,

In a catena of cases decided by the Supreme Court involving the welfare of a child, it has always been the policy of the state to promote the best interest of the child. The pronouncement of the High Court in Gualberto vs. Court of Appeals and Pablo-Gualberto, G.R. No. 156254, June 28, 2005, which was penned by Chief Justice Artemio V. Panganiban, is very clear:

“The principle of ‘best interest of the child’ pervades Philippine cases involving adoption, guardianship, support, personal status, minors in conflict with the law, and child custody. In these cases, it has long been recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration. Courts are mandated to take into account all relevant circumstances that would have a bearing on the children’s well-being and development. Aside from the material resources and the moral and social situations of each parent, other factors may also be considered to ascertain which one has the capability to attend to the physical, educational, social and moral welfare of the children. Among these factors are the previous care and devotion shown by each of the parents; their religious background, moral uprightness, home environment and time availability; as well as the children’s emotional and educational needs.”

Legally married parents exercise joint parental authority over their children pursuant to Article 211 of the Family Code of the Philippines. In case of separation-in-fact of the parents, the parental authority, with due consideration to the best interest of the child, shall be exercised by the parent designated by the court. This is exactly in consonance with Article 213 of the said Code, which provides that:

In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.”

From the aforestated provision of the law, the only instance where one parent may be deprived of parental authority is when he or she is unfit. The mere separation of the parents is not a ground to deprive them of their parental rights over their minor children. This is in accordance with Carnabuci vs. Tagaña-Carnabuci and Espiritu, G. R. No. 266116, July 22, 2024, where the Supreme Court, through Associate Justice Jhosep Y. Lopez, stated that:

“We maintain that the separation of the parents of their marital union does not automatically and simultaneously divest them of their right to exercise personal authority over their children.”

Applying the above-quoted decision to your situation, the issue on custody over your minor child shall be resolved in favor of what could serve his/her best interest. Thus, child custody which springs from parental authority may still be granted to parents jointly or to a parent designated by the court in case of separation in fact if this is for the best interest of your child. A parent can only be deprived of parental authority if it can be shown that he or she is unfit. Your separation-in-fact with your wife cannot be equated with unfitness, nor will it automatically result in loss of your right to exercise parental authority over your kid.

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.

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]