Can a father take custody of his 'illegitimate' kids? - Katrina Legarda

Posted at 02/04/2009 10:50 AM | Updated as of 02/05/2009 10:46 PM

I got this letter through the mailbox. It was a very long letter, mostly describing what this father would do for his children. The bottom line is, can a father take custody of his illegitimate children? Specifically, here is his question:

Ngayon po ang problema naming ay ang custody ng bata, parang may pahapyaw po ang mami ng anak ko na mag aasawa na sya so ang habol kop o eh sakin mapunta ang bata kung mag aasawa sya? And tama po bang a once a week lang ako pwede dumalaw sa anak ko every Sunday lang dw.. humihirit ako ako lalu pa’t birthday ko). Isa pa po karagdagan, meron po siya isa pa anak na lalake na 8 taon gulang pero dir in po sila kasal ng ama ng bata at may asawa na iba ang ama ng bata., 

Kelan at paano po ako makakuha ng karapatan sa custody ng anak naming,. Sa ngayon po ay wala ata trabaho ang mami nya kaya and2 lang po siya sa lucena,. Ang hinahabol kop o eh pag nagpakasal sya magkakaron nab a ako ng karapatan sa custody ng anak ko?  Wala nap o ako balak magpakasal or mkipisan sa ibang babae, tanging anak ko nalang po ang buhay ko ngaun.
 
Dear Illegitimate Father,

I will call you “illegitimate” as I hate it that the law calls children whose parents are not married, illegitimate. It is not their fault, so I call their parents illegitimate.
Your children are illegitimate because you are not married to their mother. You do not tell me whether they carry your name or their mother’s name. The first thing you should do is to go to the civil registrar and file an affidavit allowing your children the use of your surname, that way, you show you recognize them as your children and you want them to use your name.  When you do something as simple as this, you can avoid the complications of your ex-partner using her future husband’s name for the children.

The general rule is that children below 7 years old shall remain in the custody of the mother. The law also states that illegitimate children shall be under the parental authority of the mother. Both rules, however, do have exceptions.

The Supreme Court has always stated that the welfare of the minors is the controlling consideration on any issue involving custody of children. What determines the fitness of any parent is [1] the ability to see to the physical, educational, social and moral welfare of the children, and [2] the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.

Thus, even a mother may be deprived of the custody of her child who is below seven years of age for “compelling reasons.” Some examples reflecting an “unsuitable mother” propounded by the Supreme Court are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. Also, if a mother is found to be negligent and exhibited careless failure to perform the duties of parenthood, then she may well  be considered to have abandoned a child. Who hasn’t seen children left in the care of other people?  (And, by the way, this could be an issue, in the future, for our OFW’s….but that is another column altogether.)

In one case, the Supreme Court has even implied that an illegitimate child who is already 7 years old may choose which parent he wishes to stay with. I am not too sure if the Supreme Court is not in supreme error on this point ha. So do not depend too much on this one statement.

To be practical, I suggest you sit down with your ex-partner and write up an agreement with respect to custody and visitation. There are no set rules in the law. The two of you agree on when, how, what, and how often the children will be with each of you. I keep repeating the mantra that children should not be used in parental war games. Go to a mediator, someone you both respect, to help you come to an agreement.

If you insist on your way, will you be ready to pay the costs of a lawyer and litigation? 

Please keep sending your letters in through [email protected]