Child Chil d Cus Custody tody Rule There is a direct correlation between the rising number of marriage nullity cases and child custody battles. Aside Aside from the usual squabble over the partitioning of conjugal or community assets, the matter of who gets the kids is usually a continuous source of animosity among former spouses. In all custody, support and visitation issues affecting children, the paramount and inflexible criterion is the interest of the child. In child custody cases involving children below seven years of age, the mandatory provision to reckon with, is what is known as the TENDER YEARS RULE. RULE. This rule is also known as the maternal preference rule because it states that, No child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.! otherwise .! Thus, the law presumes that the mother is the best person to rear a child in the tender years. In order to separate a young child from the mother, the father must go to court, allege the presence of a compelling reason against the mother, and prove the existence of such reason to the court. "hat is a compelling reason varies from case to case. In some, the adultery of the mother was not sufficient to deprive her he r of her custody custody,, while in another, the marital misconduct of the mother was taken into account. The relatively poorer status of the mother, as compared to the father#s, cannot be considered a compelling reason, if the mother#s source of income is sufficient to support her child. $rug abuse of the p arent, however, seems to be compelling in all instances. "here the child is an illegitimate one, the law automatically provides that custody of such is with the mother, consistent with the right of the child to use the surname of the mother.
Best interest of child and tender years doctrine A Filipino couple, both working in the United States (US), met and fell in loe! After three (") years of liing together and haing a daughter, they got married! A few months later, the wife gae birth to their second child, but their relationship began to deteriorate! #he wife claimed that her husband nagged her too much about money matters while he claimed she was a $spendthrift, buying e%pensie &ewelry and anti'ue furniture instead of attending to household e%penses! entually, the relationship turned sour and the wife moed to a different state, leaing her husband and children behind! #he husband moed back to the *hilippines! +ue to the demands of his work, howeer, he was forced to lie in the US once again, so he left his children with his sister! t was only two years later that the mother of the children went to the *hilippines to gain custody oer her children! #he Regional #rial Court (R#C) gae the father sole parental authority and suspended the mother-s parental authority oer her children! .isitation rights were to be agreed upon by the parties and approed by the R#C! #he Court of Appeals reersed the trial court-s decision and granted custody to the mother and isitation rights to the father on weekends premised on the tender years doctrine, which proides that $no mother shall be separated from her child under seen years of age, unless the court finds compelling reasons for such measure! #he Supreme Court (SC) sustained the findings and conclusions of the R#C, reiterating that the paramount criterion for granting parental authority is the best interest of the child and not the tender years doctrine / 01the R#C2 gae greater attention to the choice of Rosalind (the daughter) and considered in detail all the releant factors bearing on the issue of custody0 t is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration! Citing Unson ! 3aarro, it e%plained that $in all controersies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respectie resources and social and moral situations of the contending parents! #he SC further e%plained the rules in ascertaining the child-s best interest /
n ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all releant considerations! f a child is under seen years of age, the law presumes that the mother is the best custodian! #he presumption is strong but it is not conclusie! t can be oercome by $compelling reasons! f a child is oer seen, his choice is paramount but, again, the court is not bound by that choice! n its discretion, the court may find the chosen parent unfit and award custody to the other parent, or een to a third party as it deems fit under the circumstances! 4astly, the Court obsered that the children-s age and their choice of parent should hae been taken into consideration when assessing the childrens best interest / 3ot only are the children oer seen years old and their clear choice is the father, but the illicit or immoral actiities of the mother had already caused emotional disturbances, personality conflicts, and e%posure to conflicting moral alues, at least in Rosalind! #his is not to mention her coniction for the crime of bigamy0 #he children understand the unfortunate shortcomings of their mother and hae been affected in their emotional growth by her behaior (spiritu ! Court of Appeals, 5!R! 3o! 66789:, 67 ;arch 6<<7, =! ;elo)!
Summary: [1] n custody disputes, the paramount criterion is the welfare and well>being of the child! [2] 5eneral rule? custody of a child below seen years of age belongs to the mother! [3] %ception? if there are compelling reasons, custody may be denied and granted to another party under Article @69 of the Family Code! [4] Compelling reasons for a mother to lose custody? neglect abandonment unemployment and immorality habitual drunkenness drug addiction maltreatment of the child insanity affliction with a communicable illness! %osted by Atty. &erry T. &alacio at "ednesday, 'uly ((, )**+
