Dear PAO,

My ex-partner and I are not married, but we have a two-year old son who was acknowledged by him and thus, carries his surname. After we separated, I applied for an overseas job and was scheduled to be deployed next month. When my ex-partner heard of it, he expressed his desire to take custody of our son until I finish my two-year contract. However, I am hesitant to leave our child with him and would certainly prefer that he stays with my parents, as I know for a fact that they can take better care of him while I am away. Can I do that?

Gillian

Dear Gillian,

Article 176 of the Family Code of the Philippines, as amended by Republic Act (RA) 9255, explicitly provides that “[i]llegitimate chil-dren 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 handwrit-ten instrument is made by the father. xxx”

In case of death, absence, unsuitability or unfitness of the mother, our law confers upon the following persons the right to exercise substitute parental authority over the child in the order indicated: 1) the surviving maternal grandparent; 2) the oldest brother or sis-ter, over twenty-one years of age, unless unfit or disqualified; and 3) the child’s actual custodian, over twenty-one years of age, unless unfit or disqualified. (Article 216, Family Code of the Philippines)

From the foregoing, it is clear that a nonmarital child shall be under the sole parental authority of the mother, who, as a conse-quence of such authority, is entitled to have sole custody of said child. The fact that the child has been recognized by his putative father is of no moment, as it had already been established by the Supreme Court, through Associate Justice Jose C. Mendoza, that “the recognition of an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child.” (Daisie T. David v. Court of Appeals, et al., G.R. No. 111180, November 16, 1995)

In your case, supposing that you proceed with your employment abroad, as a matter of law, it is your parents who shall exercise substitute parental authority over your minor child. Corollary thereto, they, too, shall be entrusted with his custody. The fact that your ex-partner has acknowledged your son may only be a ground for ordering him to give support to the latter, but does not grant him custody — temporary or otherwise. Also keeping in mind the caveat that “no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.” (Article 213, Family Code of the Philippines)

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our apprecia-tion 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]