July 8, 2011


Proposed Column Title: “Fides et Ratio”



                                                   by:  Atty. Tito R. Bundang

            I sat motionless but perturbed, my heart beating fast, yet I could not take my eyes off the theater screen. The characters in the scene were in a courtroom, husband and wife they were. Their voices were loud as thunder, not because they were shouting and fighting a common enemy, but rather they were embroiled in a battle of their own. They were arguing for the custody of the most precious treasure they both wanted to have—their only son. More than 20 years ago, I saw, “Kramer v. Kramer”, the movie which starred Dustin Hoffman and Meryl Streep as the divorcing couple. Despite the lapse of time, in the recesses of my memory, I can still feel the anguish and the pain which that emotionally charged scene has successfully evoked.

          “Kramer v. Kramer” captured the hardships and difficulties that a real couple and their child go through when a marriage tragically falls apart and custody of the child becomes a major concern. In the case of Gualberto v. Gualberto (461SCRA450), the Supreme Court aptly observed that, “when love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often over the custody of their children.” Undoubtedly, a legal conflict which highlights the parents’ respective qualifications to parent and puts at issue the child’s best interest, is to say the least, stressful and emotionally draining. A custody case has drama written all over it with the possibility that both parents may even wash dirty linen in public and attempt at times to drag each other’s name through the mad if only to secure custody over the child.

          Regardless of the nature and complexion of the parties’ differences that led to the institution of the custody case, it is clear that under Philippine law, the “best interest of the child” is the singular matter that is at issue in a custody battle. Article 3 of Presidential Decree No. 603, as amended, otherwise known as The Child and Youth Welfare Code of the Philippines, provides that in all questions regarding the care and custody of the child, his welfare shall be the paramount consideration. Article 3, Section 1 of the United Nations Convention on the Rights of the Child to which the Philippines is a signatory, in the same way, states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.” In choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration (Tonog v. CA, 376SCRA523). Aside from the material resources and the moral and social situations of each parent, other factors like the previous care and devotion shown by each of the parents, their religious background, moral uprightness, home environment, time availability, and the children’s emotional and educational needs may also be considered to ascertain which one has the capability to attend to the physical, educational, social, and moral welfare of the children (Unson III v. Navarro, 101SCRA183; Gualberto v. Gualberto, ibid).

Article 211 of the Family Code provides for joint parental authority by a couple over their child when the spouses live together. When they separate with or without judicial decree, Article 213 of the Family Code on the manner of court adjudication of custody, sets in. Article 213 states that, “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Article 213 deals with two (2) situations, namely when the child is seven years old or above, and when he is under seven years of age.

In the first situation, the child’s choice of a parent with whom he will stay, shall be considered by the court, among others, but it shall not be bound by such choice. If the choice points to a parent found unfit by the court and thus, it is not for the child’s best interest, then the choice can be set aside (Sy v. Court of Appeals, 541SCRA371). Of course, the parents can also agree on the custody arrangements they see fit to adopt (Dacasin v. Dacasin, 611SCRA657).

In the second situation, upon separation of a couple, it is mandated under the law that the separated mother assumes sole parental custody over the child who is under seven years of age (Dacasin, ibid.). The child may be separated from the mother only if there are “compelling evidence” proving her unfitness to have custody as in the instances of neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease (Hirsch v. CA,, 527SCRA380). Notwithstanding the mother’s sole custody of a child under seven years old, the father’s right to visit and see his child remains and is not hampered by Article 213 as ruled by the Supreme Court in the case of Salientes, v. Abanilla, (500SCRA128).

          The “child’s best interest” standard is central to custody cases. How it is determined and applied fairly and judiciously to varying scenarios and interests becomes the challenge which the courts must face in the days to come.


**(Atty. Tito is a Partner of the Sapalo Velez Bundang & Bulilan Law Offices in Makati City. He also writes for other publications and teaches law at the Commercial Law Department, De La Salle University. He may be reached at 891-1316 or through /

Translate »