Wednesday, October 14, 2009

Custody battles over children between grandparents and a mother or father

custody battles over children between grandparents and a mother or fatherI have previously written about custody battles over children between the father and the mother. In this post, I will discuss the following issues:

Why do grandparents want custody of their grandchildren?

The “apos” may be so cute and lovable that some grandparents are fighting tooth and nail for their custody. Sometimes it seems that grandparents are more interested in having custody rather than the parents themselves. Some women have e-mailed me saying that their child’s father do not really want to have anything to do with the child but that it is the grandparents who want to have the time and opportunity (if not outright custody) to be with the child.

Why? Someone said that it is because the grandparents already failed with their own children and they want another chance to make up for their mistakes. This time, hopefully with their grandchildren, they will be able to do things right.

Family Code provisions on parental authority

Articles 209 to 233 of the Family Code are the governing laws on parental authority. Below are some articles relevant to our discussion:
Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 211. 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.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.

Art. 213. 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.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.
Family Code provisions on substitute parental authority of grandparents

Articles 214 and 216 of the Family Code speak clearly of situations when grandparents can exercise substitute parental authority over their grandchildren:
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.

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 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 of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.
In custody battles, the law favors the parents over the grandparents

The Supreme Court in the case of Santos vs. CA (G.R. No. 113054 March 16, 1995) laid down the rule that “the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority.”

The facts of the Santos case

Petitioner Leouel Santos, Sr., (“Santos” for brevity) an army lieutenant, and Julia Bedia, a nurse by profession, were married in Iloilo City in 1986. Their union produced only one child, Leouel Santos, Jr. who was born July 18, 1987.

From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of his maternal grandparents, private respondents Leopoldo and Ofelia Bedia (“Bedias” for brevity).

Santos and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter’s parents, the respondent Bedias. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy because petitioner could not afford to do so.

The boy’s mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Santos alleged that he was not aware of her whereabouts and his efforts to locate her in the United States proved futile. The Bedias claimed that although abroad, their daughter Julia had been sending financial support to them for her son.

On September 2, 1990, Santos along with his two brothers, visited the Bedia household, where three-year old Leouel Jr. was staying. The Bedias claimed that through deceit and false pretensions, Santos abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental.

The Bedias then filed a “Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.,” before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent.

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.

Santos appealed this order to the Court of Appeals (CA). In its decision dated April 30, 1992, the CA affirmed the trial court’s order. The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) was “depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to have custody of minor Leouel Santos Jr.” The CA ruled:
From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents the petitioners herein. The petitioners have amply demonstrated their love and devotion to their grandson while the natural father, respondent herein, has shown little interest in his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off financially, should be carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous financial support to his son, while, upon the other hand, the latter receives so much bounty from his maternal grandparents and his mother as well, who is now gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to another, and, in these troubled times, may have pressing and compelling military duties which may prevent him from attending to his son at times when the latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender care of those who can provide for it.
His motion for reconsideration having been denied, Santos appealed to the Supreme Court.

Issues before the Supreme Court

[1] Between Santos, the father, or the Bedias, the grandparents, who should properly be awarded custody of the minor Leouel Santos, Jr.?

The mother of the minor Santos, Jr., is working in the United States while the father, Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has been no decree of legal separation and Santos’s attempt to obtain an annulment of the marriage on the ground of psychological incapacity of his wife has failed.

[2] According to Santos, the CA erred in awarding custody of the boy to his grandparents and not to himself. He contends that since the Bedias have failed to show that he was an unfit and unsuitable father, substitute parental authority granted to the boy’s grandparents under Art. 214 of the Family Code was inappropriate.

Santos added that the reasons relied upon by the Bedias in having custody over the boy, were flimsy and insufficient to deprive him of his natural and legal right to have custody.

[3] On the other hand, the Bedias claimed that they could provide an air-conditioned room for the boy and that Santos would not be in a position to take care of his son since he has to be assigned to different places. They also allege that Santos did not give a single centavo for the boy’s support and maintenance. When the boy was about to be released from the hospital, they were the ones who paid the fees because their daughter and Santos had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States. Furthermore, Santos’s use of trickery and deceit in abducting the child in 1990, after being hospitably treated by them, did not speak well of his fitness and suitability as a parent.

The Bedias argued that although the law recognizes the right of a parent to his child’s custody, ultimately the primary consideration was what was best for the happiness and welfare of the latter. As maternal grandparents who have amply demonstrated their love and affection for the boy since his infancy, they claimed to be in the best position to promote the child’s welfare.

The decision of the Supreme Court: the natural love of a parent outweighs that of the grandparents

[1] The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or “patria potestas” in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs.

It is a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.”

[2] Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution.

When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.

[3] The child’s welfare is always the paramount consideration in all questions concerning his care and custody.

[4] The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority.

[5] Only in case of the parents’ death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent.

[6] Santos has not been shown to be an unsuitable and unfit parent. The Bedias’ demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. The latter’s wealth is not a deciding factor, particularly because there is no proof that Santos is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child’s custody.

[7] While Santos’s previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give.

[8] His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of their duties and assignments, such as temporary separation from their families.

[9] Santos’s employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him.

[10] The attachment of the Bedias to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here.

The strong bonds of love and affection possessed by the Bedias as grandparents should not be seen as incompatible with Santos’s right to custody over the child as a father.

Related cases and issues

[1] If the grandparents have, by force or stealth, taken away the grandchild, how can the father or mother regain custody?

The Supreme Court ruled in Tijing vs. Court of Appeals G.R. No. 125901, March 8, 2001 that the parent who wants to regain custody can file a petition for a writ of habeas corpus.
The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.
Please read “Rule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody Of Minors”.

[2] If the mother of an illegitimate child dies, who will exercise parental authority?

An OFW from the Middle East e-mailed me asking about his right to his illegitimate children since the mother has died. He said that he wants custody of his children but the maternal grandparents refuse to let the children be with him.

Article 212 of the Family Code states: “In case of absence or death of either parent, the parent present shall continue exercising parental authority.”

I stand to be corrected but I do not think that Article 212 applies in this situation. Notice that it says “the parent present shall continue exercising parental authority”. But under Article 176 of the Family Code, sole parental authority belongs to the mother. The biological father does not have any parental authority and so, in case of the mother’s death, what parental authority can he “continue” to exercise?

I think Article 214 of the Family Code provides a possible answer. It says:
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.
The question is which grandparents – the maternal grandparents or the paternal grandparents? Again based on Article 176, I will say that it is the grandparents on the illegitimate child’s mother side who should exercise parental authority.

In the situation of that OFW I told you about above, he can of course file a petition in court for parental authority to be granted to him. He can file a petition to this effect or file for adoption of his illegitimate children under RA 8552. Either way, if the court grants his petition, he will have parental authority over his children.

[3] The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, like the child's grandparents

I have previously discussed the issue of visitation rights a father over has over his illegitimate child. You can download my free PDF newsletter Issue no. 008 September 30, 2008 on this topic.

The problem is that a lot of times, the father himself does not want to have anything to do with his child. The persons who want to spend time with the child are the grandparents. The father’s visitation right is personal to him. Thus, if the court has granted the terms and conditions of his visitation, once he leaves the country (to work, for example), his visitation right cannot be exercised other parties, like the grandparents.

[4] Vancil vs. Belmes G.R. No. 132223, June 19, 2001

Bonifacia Vancil (“Bonifacia” for brevity), a US citizen, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December 22, 1986. During his lifetime, Reeder had two children named Valerie and Vincent by his common-law wife, Helen G. Belmes (“Helen” for brevity). Bonifacia obtained a favorable court decision appointing her as legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr. She alleged that Helen was morally unfit as guardian of Valerie considering that Helen’s live-in partner raped Valerie several times.

Since Valerie had reached the age of majority at the time the case reached the Supreme Court, the issue revolved around the guardianship of Vincent.

The Supreme Court ruled that Bonifacia, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of Helen. Considering that Helen is very much alive and has exercised continuously parental authority over Vincent, Bonifacia has to prove, in asserting her right to be the minor’s guardian, Helen’s unsuitability. Bonifacia, however, has not proffered convincing evidence showing that Helen is not suited to be the guardian of Vincent. Bonifacia merely insists that Helen is morally unfit as guardian of Valerie considering that her live-in partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of this guardianship proceeding.

Even assuming that Helen is unfit as guardian of minor Vincent, still Bonifacia cannot qualify as a substitute guardian. She is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in her petition, Bonifacia admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian.

[4] Tonog vs. CA G.R. No. 122906, February 7, 2002

This case revolved around Gardin Faith, an illegitimate child. Article 176 of the Family Code states that sole parental authority belongs to the mother. In this case, the Supreme Court ruled that while the guardianship proceedings were ongoing at the trial court level, TEMPORARY custody of the child should be retained by the father. The child should not be wrenched from her familiar surroundings, and thrust into a strange environment away from the people and places to which she had apparently formed an attachment. Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special proceedings before the trial court.

Summary:

[1] In custody battles, the law favors the parents over the grandparents (Santos vs. CA, G.R. No. 113054 March 16, 1995). The natural love of a parent outweighs that of the grandparents.

[2] The mother or father can regain custody if the grandparents have, by force or stealth, taken away their grandchild. The legal remedy is filing a petition for habeas corpus.

[3] The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, like the child's grandparents.

6 comments :

Anonymous said...

Hello po and good afternoon.

Gusto ko lang i ask kung pwedeng mag file ng Child custody ang brother ko even without his ex-wife's presence.?

My nephew stays with my brother since the day they got separated.

The ex wife doesnt cooperate sa pag-uusap nila regarding the custody.Ayaw niya asikasuhin ang pag pirma.

My brother filed a BIGAMY case because the ex wife married another man without getting her first marriage annulled.

May warrant of arrest na na iisuue for the ex wife.

The ex wife is now out of the country.

My nephew is 11 years old.

What shall we do regarding the child custody.?

Please give us advise...
Thank You po.

Atty. Gerry T. Galacio said...

Your brother and his wife are legally married. Under the Family Code, BOTH the father and mother have parental authority. This authority includes custody. Take note especially of Article 212 which states that “in case of absence or death of either parent, the parent present shall continue exercising parental authority”. Thus, your brother does not need to go to court on the issue of custody. The Family Code already provides that he can continue exercising parental authority (and having custody) over his son.

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 211. 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.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.


Please consult other lawyers who may have opinions different from mine or who may be able to suggest alternative courses of actions.

Anonymous said...

Greetings po!
I saw that may mga Biblical quotations po kayo after your articles(or whatever you might call it :) ) so i sensed na if i present my case to you po eh both Biblical law and human law po pagbabsehan ninyo.
I'm married po but not living with my husband since January 2007 up to now.We have 2 kids both above 10 year olds and they are with me.On November 2007 we migrated to Luzon, me and my kids,since we were living in Mindanao before.My kids and their father had an open line of communication and I did not deprived that from them acknowledging his right as a father.But few months after,he stopped communicating with my kids changed his mobile number so my kids had no communication with him anymore.He did not even try to re connect with my kids knowing the fact that my parents are in Mindanao and is very much within his reach if he cares about our kids really.And he did not give any single centavo of financial support from that on until present time.
Last year I came to work abroad to sustain my needs and my children's, leaving my kids under the costudy of my aunt and cousin in Luzon wherein I regularly send money for my children.
Now I am planning of going home to the Philippines and bring my children to my parents in Mindanao and leave them under their costudy while I continue to work here abroad.I strongly believe that my children will be better under my parents,though my cousin and aunt really took care of them as their own,but of course they also have their own life and family to attend to.
My main sole concern is,what if my husband will bother and claim costudy of our children?
Will he have the right to take them from my parents? What do I need to do?
By the way, here are some facts about my husband's condition as of the present:
*He is a police officer and had a blotter case for pointing his issued firearm(gun) to me and the kids which i filed before.(Can be interpreted as psychologocal incapacity?)
*He is epileptic and has medical record in a certain hospital and is under medication as far as i know.(Which I think not a good condition to have costudy of our kids)
*As I have heard recently,he is involved with a certain woman and has an under a year old baby.
Please do help me.
Thank you and God bless!

Atty. Gerry T. Galacio said...

[1] Please read my RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” posts (look for the links in the sidebar). Through a Protection Order, you can ask the court to compel your husband to give financial support to you and your kids, and/or to stay away from you, your kids and designated family members.

If your husband forcibly takes custody of your kids while you are working abroad, you or your aunt and cousin can get a Protection Order to regain custody of your children.

Also, since your kids are both above seven, they can choose which parent to live with (Article 213 of the Family Code). The said article states: “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.”

[2] In the sidebar, you can get the contact numbers of government agencies and offices (PNP, NBI, DOJ, etc) from which you can ask help.

grace said...

gud day to u atty,.
about da financial support and custody of the child(illegitimate child), hanggan saan po b ang limitations ng legal wife s decision making hlimbawa po n mguusap kmi ng ama ng anak ko about s custody and financial? nuon mnsan po mguusap kmi ng ama ng anak ko, ang wife po ang humarap s akin at msasakit n salita at kng anu ano po ang cnabi s akn.

Atty. Gerry T. Galacio said...

grace,

Please read my post “Support for abandoned woman and family” (look for the link in the sidebar). The wife does not have any legal say in this matter. It is a matter between you and the man, as overseen and to be decided by the judge.