As defined, the Civil Code is a collection of laws, which regulates the private relations of the

members of civil society, determining the respective rights and obligations, with preference to

persons, things and civil acts. (1 Tolentino, Civil Code, p. 10, 1974 ed.) Thus, it determines and

regulates relations on assistance, authority and obedience existing among members of a family as

well as among members of a society for the protection of private interests.

In light of this discussion, the researchers highlighted the overshadowed biases present in cases

related to family matters, wherein the courts are found to lean toward more to the female, or in

this case, to the mothers as opposed to the fathers.

The Family Code of the Philippines, or Executive Order No. 209, was signed into law by former

President Corazon Aquino in July 26, 1987. This law was put into existence to govern decisions

on marriage and family relations to bring them closer to Filipino customs, values and ideals.

Also it implements policies embodied in the new Constitution that strengthen marriage and the

family as basic social institutions and ensure equality between men and women.

This provisions of the Family Code promises equality between men and women yet the courts

seem to be more lenient towards the women in decisions regarding child custody and ---. One

evident bias regarding this matter is the provision of Article 213 of the Family Code which

provides that “no child under seven years of age shall be separated from the mother, unless the

court finds compelling reasons to order otherwise.” In the case for illegitimate children, Article

176 provides that the child should also be under the parental authority of the mother. From those
provisions alone, the prejudices are already evident. It is especially evident in Article 213 where

the law presumes that the mother is the best custodian. As explained by the Code Commission:

“The general rule is recommended in order to avoid many a tragedy where a mother has

seen her baby torn away from her. No man can sound the deep sorrows of a mother who

is deprived of her child of tender age. The exception allowed by the rule has to be for

“compelling reasons” for the good of the child; those cases must indeed be rare, if the

mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the

penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be

sufficient punishment for her. Moreover, moral dereliction will not have any effect upon

the baby who is as yet unable to understand her situation.”

The researches sees the importance and gravity of the maternal presence on a child has, however,

with these provisions the law seemingly demeans the role of a paternal figure in raising a child

when deciding on cases of child custody. According to a study conducted by the National Center

for Fathering (NCF) entitled The Consequences of Fatherlessness, “Children from fatherless

homes are more likely to be poor, become involved in drug and alcohol abuse, drop out of

school, and suffer from health and emotional problems. Boys are more likely to become involved

in crime, and girls are more likely to become pregnant as teens.”

The law should recognize the important role of the father in the upbringing of a child and that

both parents “complement each other in giving nurture and providing that holistic care which

takes into account the physical, emotional, psychological, mental, social and spiritual needs of
the child.” (Galacio, 2007) Moreover the law nor the jurisprudence should not downplay a

father’s sense of loss when he is separated from his child:

“While the bonds between a mother and her small child are special in nature, either

parent, whether father or mother, is bound to suffer agony and pain if deprived of

custody. One cannot say that his or her suffering is greater than that of the other parent.

It is not so much the suffering, pride, and other feelings of either parent but the welfare

of the child which is the paramount consideration.”

Going back to the provisions laid in the Family Code, Article 213 states the general rule that no

child under seven years of age shall be separated from the mother, unless the court finds

compelling reasons to order otherwise. This rule is to be applied unless the circumstances as

enlisted in Article 214 are present. These compelling circumstances are as follow:

 Neglect

 Abandonment

 Unemployment and immorality

 Habitual drunkness

 Drug addiction

 Maltreatment of the child

 Insanity

 Affliction with a communicable illness

The first, neglect and abandonment, are the most used claim in attaining child custody. However,

there is a significant difference in the impact it has when used as a mother or as a father.
As an example, in one case, Briones vs. Miguel, GR 156343, Oct. 18, 2004, the Supreme Court

upheld the illegitimate child’s mother’s custody even when the mother was working in Japan and

eventually brought the child out of the country to live with her there. By law and jurisprudence,

the mother has sole parental authority and is entitled to keep the child in her custody. In the said

case though, Briones wanted to claim custody of his son whenever the mother leaves Japan and

during her stay there. Essentially, he wanted joint custody over the child where in the times the

mother is in the country she exercises custody but when she is out of the country, as the

biological father, he should have custody.

Naturally, custody was given to the mother. The argument on the side of the mother was that she

was leaving her child in the care the child’s maternal grandparents. It seems that leaving the

child to work abroad and entrusting the child to the care of the maternal grandparents did not

seem to be one of the grounds for taking away custody from the mother. It still is not considered

abandonment or neglect. (Florido, 2010) If it were the other way around though, and it was the

father who had to leave his child to work abroad, the courts are quick to look at this as neglect

and/or abandonment. Abandoned means to have been deserted or been left behind (Oxford Dict)

thus in the given case, even if the child had been left with his grandparents, ultimately the mother

still abandoned him, making his biological father suitable for custody. Sadly, Philippine law and

jurisprudence has its tendency to be lenient more to mothers and females, thus still granting

custody to the mother.

https://legalcounseling.wordpress.com/2010/10/19/can-father-of-illegitimate-child-obtain-

custody-when-mother-is-abroad/
http://www.fathers.com/statistics-and-research/the-consequences-of-fatherlessness/

https://famli.blogspot.com/2007/06/can-mother-be-deprived-of-custody-of.html