Monday, August 02, 2010

How do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity?

Please read my previous posts on the issue of custody:

Can a mother be deprived of custody of her child?

Custody battles over children: what determines fitness of a parent over another?

Custody battles over children between grandparents and a father or mother
The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow in deciding the issue of custody in relation to petitions for legal separation, annulment of voidable marriage or declaration of nullity of marriage. Please take note that:

1. This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

2. This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars that I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

Main guideline for award of custody: Best interests of the child

Section 4 of the Supreme Court Rule on Provisional Orders states:

In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child.

The court may likewise consider the following factors:

(a) the agreement of the parties;

(b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent;

(c) the child’s health, safety, and welfare;

(d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent;

(e) the nature and frequency of contact with both parents;

(f) habitual use of alcohol or regulated substances;

(g) marital misconduct;

(h) the most suitable physical, emotional, spiritual, psychological and educational environment; and

(i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
Order of preference in the award of custody

In keeping with Articles 214 and 216 of the Family Code, Section 6 of the Supreme Court Rule states:

The court may award provisional custody in the following order of preference:

(1) to both parents jointly;

(2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit;

(3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified;

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

(5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or

(6) to any other person deemed by the court suitable to provide proper care and guidance for the child.

The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents.
Section 5 of the Rule states that “appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court.”