Custody over an Illegitimate Child when the mother passes away
In the case of a mother who passes away, who would legally have parental authority and therefore custody of an illegitimate child? The quickest (but wrong) answer would be the biological father, assuming that he is still alive. But that answer is wrong. The biological father cannot have custody of a child, even if he acknowledge the child to be his. This is because the Family Code enumerated the persons who have parental authority and therefore custody of an illegitimate child.
Under Art. 176 of the Family Code, parental authority over illegitimate children is lodged on the mother, thus:
“Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother x x x.”
Mother has Sole Parental Authority and Custody
In Briones vs. Miguel, the Supreme Court pronounced that an illegitimate child is under the sole parental authority of the mother. The important portions of the ruling are reproduced hereunder, to wit:
“Under Article 176 of the Family Code, all illegitimate children are generally placed under one category, without any distinction between natural and spurious. The concept of “natural child” is important only for purposes of legitimation. Without the subsequent marriage, a natural child remains an illegitimate child.
Obviously, Michael is a natural (“illegitimate,” under the Family Code) child, as there is nothing in the records showing that his parents were suffering from a legal impediment to marry at the time of his birth. Both acknowledge that Michael is their son. As earlier explained and pursuant to Article 176, parental authority over him resides in his mother, Respondent Loreta, notwithstanding his father’s recognition of him.
David v. Court of Appeals held 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. The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor. Of course, the putative father may adopt his own illegitimate child; in such a case, the child shall be considered a legitimate child of the adoptive parent.
There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the minor, is entitled to have custody of him. She has the right to keep him in her company. She cannot be deprived of that right, and she may not even renounce or transfer it “except in the cases authorized by law.”
Substitute Parental Authority
Clearly, the mother has sole parental authority over a minor illegitimate child. Upon the mother’s demise, Art. 214, in relation to Art. 216 of the Family Code, finds application. These provisions are quoted below:
“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 the same consideration mentioned in the preceding article, shall exercise the authority.
Art. 216. In default of parents or a judicially-appointed guardian, the following persons 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 years of age, unless unfit or disqualified; and
(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.”
Hence, the surviving grandparent shall be preferred as regards the exercise of substitute parental authority over a child upon, among others, the death or absence of the parents. Note that the biological father is not among those listed under Art. 216.
Effects of Parental Authority
Moreover, it is not amiss to state that the right of custody springs from the exercise of parental authority. This is bolstered by Art. 220 of the Family Code, which provides, to wit:
“Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the circumstances; and,
(8) To perform such other duties as are imposed by law upon parents and guardians.”
To recall, Art. 176 of the Family Code provides for the sole parental authority of the mother over an illegitimate child. Corollary to such sole parental authority, Art. 216 in relation to Art. 214 of the same law vests upon the surviving maternal grandparent the right to exercise substitute parental authority over an illegitimate child upon demise of the mother.
Therefore, and to conclude, where the mother of an illegitimate child passes away, it is the surviving maternal grandparent who is entitled and duty-bound, under Art. 220 of the Family Code, to keep the illegitimate child in his/her company or custody.
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 Art. 213. x x x 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.