What Are The Rules on Child Custody?
Child custody is intertwined with the concept of parental authority as the former is an integral aspect of the latter. Having custody over a child allows parents to exercise parental authority since the proximity between these two rights facilitates control and guidance. With this in mind, it can be clearly seen that custody is an issue that is treated with paramount importance in the realm of family law.
As a default rule, the provisions of the Civil Code provide for the joint exercise of parental authority by the parents over the child. For illegitimate children, the rule remains that parental authority and custody shall remain with the mother. In cases involving the separation of the parents either by annulment; legal separation; or the declaration of nullity of a marriage and in the absence of any written agreement between the spouses assigning custody over the children, the court shall provide for the custody of the common children giving paramount consideration to their moral and material welfare and their choice of the parent with whom they wish to remain.
Factors Considered to Determine Provisional Custody of the Children
Under the rules governing provisional orders, the following factors may be considered by the court in determining the provisional custody of the children:
To Whom the Court will Award Provisional Custody of Children
- The agreement of the parties;
- The desire and ability of each parent to foster an open and loving relationship between the child and the other parent;
- The child’s health, safety, and welfare;
- 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;
- The nature and frequency of contact with both parents;
- Habitual use of alcohol or regulated substances;
- Marital misconduct;
- The most suitable physical, emotional, spiritual, psychological and educational environment; and
- The preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
Furthermore, the court may award provisional custody in the following order of preference:
- To both parents jointly;
- To either parent taking into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit;
- 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;
- To the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;
- To the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or
- To any other person deemed by the court suitable to provide proper care and guidance for the child.
The court shall also provide for appropriate visitation rights of the other parent. In the case of children below the age of 7 years, the law prohibits them from being separated from the mother unless the court finds compelling reasons to order otherwise. This rule is rooted in the recognition of the tremendous pain and trauma that a child and his or her mother undergo when they are forced to separate.
After litigation, the court shall make an order declaring to whom custody of the children shall be awarded. The court shall take into consideration the fitness of each parent before granting custody.
Instances exist that transcend the ordinary rules of custody. These contemplate situations calling for the exercise of special parental authority in cases where both parents are in default or when a guardian is appointed by the court. In such cases, the surviving grandparent, oldest brother or sister or the child’s actual custodian are granted custody in this order. For foundlings, abandoned or abused children, the orphanages and other institutions shall exercise parental authority and custody.