Custody battles over children between grandparents and a mother or father

Summary: 1. In custody battles, the law favors the parents over the grandparents (Santos vs. CA, G.R. No. 113054 March 16, 1995). 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. 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 under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors A.M. No. 03-04-04-SC or a petition for Protection Order under RA 9262. 3. The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, such as the child’s grandparents. Unresolved legal issue: If the mother of an illegitimate child dies, who will exercise parental authority? The biological father? The grandparents? Which grandparents - paternal or maternal?

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

• Family Code provisions on parental authority
• Custody battles over children between a parent (either the father or the mother) on one side and grandparents on the other side
• Supreme Court ruling in Santos vs. CA: In custody battles, the law favors the parents over the grandparents
• Natural love of a parent outweighs that of the grandparents
• If the grandparents have, by force or stealth, taken away the grandchild, how can the mother or father regain custody?
• If the mother of an illegitimate child dies, who will exercise parental authority?
• The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, like the child's grandparents

Why do grandparents want custody of their grandchildren?

The grandchildren 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 deal with 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, such as 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 by 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.

5. 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.