How to Claim Custody Over a Minor Child - Nicolas and De Vega Law Offices Image

Who may file a Petition for Custody?

A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent.

Parents of the minor child shall have the right to custody over their children. The right of custody accorded to parents springs from the exercise of parental authority.

Under the Family Code, the father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

In case of absence or death of either parent, the parent present shall continue exercising parental authority. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court.

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent.

Illegitimate children shall be under the parental authority of the mother. Also, as to adopted children, the adopting parent shall have parental authority. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses.

In addition, Article 213 of the Family Code provides for the so-called tender-age presumption, stating that no child under seven [(7)] years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.

A.M. No. 03-04-04-SC, which took effect on 15 May 2003, provides for the Rules on Custody of Minors.

Where do you file the Petition?

The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.

What is needed in the Petition?

The verified petition shall allege the following:

(a) The personal circumstances of the petitioner and of the respondent;

(b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent;

(c) The material operative facts constituting deprivation of custody; and

(d) Such other matters which are relevant to the custody of the minor.

The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.

What is the duty of the court social worker in custody cases?

Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation to the court.

Provisional order awarding custody

The court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody:

(a) Both parents jointly;

(b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;

(c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;

(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or

(f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

What are the factors to consider in determining custody?

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.

Can a temporary visitation rights be issued to the non-custodial parent?

Yes. The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified.

Issuance of a Hold Departure Order

The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending.

The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal.

Can a Protection Order be issued?

Yes. The court may issue a Protection Order requiring any person:

(a) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place designated by the court;

(b) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded;

(c) To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor;

(d) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods;

(e) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; and

(f) To comply with such other orders as are necessary for the protection of the minor.

Confidentiality of the proceedings

The hearings on custody of minors may, at the discretion of the court, be closed to the public and the records of the case shall not be released to non-parties without its approval.

About Nicolas and De Vega Law Offices

If you need help regarding child custody, custody of a minor child, disputes on visitation rights, or have any questions or concerns regarding family law-related issues, we can help you. Nicolas and De Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com/.

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