In a recently decided case entitled Spouses Gabun, et al. v. Stolk Sr. (G.R. No. 234660, 26 June 2023), the Supreme Court, through Associate Justice Antonio T. Kho Jr., clarified who has parental authority and custody over illegitimate children.

In the said case, Stolk Sr. filed a Petition for Habeas Corpus against petitioners, praying for absolute and permanent custody over his minor son, Stolk Jr.

Stolk Sr. lived together with Catherine in the United States as husband and wife without the benefit of marriage. In 2007, Catherine returned to the Philippines to give birth to their son, Stolk Jr. but died during childbirth, leaving the latter in the care of petitioners Nora and Marcelino. Petitioners Nora and Marcelino, appeared to be Stolk Jr.’s actual custodians and collateral grandparents, as they were the siblings of Catherine’s parents.

In filing the Petition for Habeas Corpus for the permanent custody over his minor son, Stolk Sr. claims that petitioners knew that he would be coming to the Philippines to take the custody of Winston Jr. Thus, when Stolk Sr. arrived, petitioners prohibited him from seeing his child. Stolk Sr. presented the birth certificate of Stolk Jr.

During the proceedings, the trial court issued an order allowing the conduct of a DNA test of Stolk Jr. at the expense of Stolk Sr. Thereafter, the results showed a 99.9997 percent probability of paternity. Thus, the trial court awarded Stolk, Sr. the custody of and parental authority over Stolk Jr.

Notably, the trial court applied Article 212 of the Family Code, which states that in case of death of either parent, the parent present shall continue exercising parental authority.

Petitioners filed a Motion for Reconsideration arguing among others that: (1) Stolk Sr. and Catherine were not legally married; (2) Stolk Sr. is not fit to assume parental authority because he is a convicted felon, and he has issues with the authorities in the US; and (3) Stolk Jr.’s choice to remain with the petitioners must be respected.

When the case reached the Supreme Court, it found that the trial court erred in awarding Stolk Sr. custody over Stolk Jr. based solely on parentage probability of paternity.

The Court explained that as a rule, the father and the mother shall jointly exercise parental authority over the persons of their common children. However, with respect to illegitimate children, Article 176 of the Family Code explicitly grants the sole parental authority to the mother, notwithstanding the father’s recognition of the child.

Under Article 214 of the Family Code, in case of the death, absence, or unsuitability of the parents or the mother in the case of illegitimate children, substitute parental authority shall be exercised by the surviving grandparent.

Meanwhile, under Article 216 of the Family Code, in default of persons or a judicially appointed guardian, substitute parental authority shall be exercised in the following order (1) surviving grandparent, (2) oldest brother or sister, over twenty-one years of age, and (3) the child’s actual custodian, over twenty-one years of age.

Thus, when parental authority is granted solely to the mother, as in the case of illegitimate children, the substitute parental authority shall be exercised by the grandparents or the specified persons under Article 216 of the Family Code. According to the Court, to rule otherwise would circumvent the law’s intent to grant sole parental authority to the mother with respect to their illegitimate children.

The Court clarified that this does not automatically and absolutely disqualify the father of an illegitimate child from exercising substitute parental authority in case of the death, absence, or unsuitability of the mother. According to the Court, the father of an illegitimate child may exercise substitute parental authority, and be given custody in situations where he is the “child’s actual custodian.”

The Court, however, noted that in cases involving care and custody of minors, the paramount consideration shall be the welfare and well-being of the child. Thus, factions enumerated in Section 14 of the Rule on Custody of Minors must be considered, such as the child’s health, safety, and welfare and the most suitable physical, emotional, spiritual, psychological, and educational environment for the minor’s holistic development and growth.

In ruling the case, the Court found that the trial court did not consider the factors enumerated in Section 14 of the Rule on Custody of Minors. Thus, the Court remanded the case to the trial court, with an express order to consider the factors and measures under the Rule on Custody of Minors in resolving the issue of Stolk Jr.’s custody.

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