Dear Attorney,

I am currently in the process of separating from my spouse, and we have two young children together. We are trying to settle issues about custody, but I am concerned about what the law in the Philippines says regarding who gets custody, especially since our children are both under 7 years old. We want to avoid any conflicts or legal battles, but I’m unsure how the courts decide custody in such cases, particularly if we cannot agree on an arrangement. Can you explain what we should expect and what factors the court considers in determining child custody?

Sincerely,
A Concerned Parent

Insights

In the Philippines, child custody matters are governed by both statutory laws and the guiding principle of the "best interest of the child." When parents separate or divorce, custody decisions are made with the child’s welfare as the foremost priority.

Under the Family Code of the Philippines, specifically Article 213, there is a general presumption that for children under the age of seven, custody is automatically awarded to the mother. This is based on the belief that young children need their mother’s care during these formative years, a concept referred to as the "tender years doctrine." However, this presumption in favor of the mother can be overridden if there is compelling evidence that the mother is unfit to take care of the child—such as in cases of neglect, abuse, or incapacity. If proven, the father or another suitable guardian could be granted custody.

If parents cannot come to an agreement on the custody arrangement, the court will step in and examine several factors before making a determination. These factors include:

The emotional and psychological welfare of the child: The court evaluates which parent can provide a stable, nurturing environment. The child’s age, health, and needs are considered.
The moral and physical capability of the parents: The court will review each parent’s ability to provide care, attention, and moral guidance. This includes the parent’s character, past behavior, and relationship with the child.
The child's preference: In some cases, especially when the child is older and able to express a preference, the court may take the child’s wishes into account.
The existing living arrangements and family dynamics: The court looks at which parent has been the primary caregiver and how the child's current environment might be disrupted by a change in custody.

It is important to note that both parents typically retain parental authority over their children even after separation or divorce. While one parent may be granted primary physical custody, the other usually retains visitation rights unless there are valid reasons to limit or revoke such access (e.g., endangerment to the child).

Additionally, the court encourages shared parental responsibility, which means that both parents are expected to contribute to the child’s upbringing, education, and overall well-being, regardless of the custody arrangement.

To avoid a drawn-out legal battle, many parents opt to settle custody arrangements through mediation or by coming to an agreement outside the court. This is often seen as less stressful for both the children and parents. However, if conflicts do arise and litigation is necessary, it’s crucial to have legal counsel to navigate the complexities of child custody laws and ensure the best possible outcome for the children.

In conclusion, while the mother is generally favored in custody cases for children under seven, the ultimate decision is made based on what the court determines to be in the child’s best interest. Parents are encouraged to work together amicably to form a custody arrangement that prioritizes the welfare and development of their children.