Dear Atty. Kathy,

My daughter just gave birth to our first grandson, J. But we are also grieving because my daughter passed away after a month after giving birth, due to complications. As J’s only remaining grandparent, I am taking care of J. However, my daughter’s estranged boyfriend, B, J’s father, wants to get J from us. B is saying that since he is the father, he should have parental authority and custody over J even if he was never married to my daughter. Is B correct?

Jenny

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Dear Jenny,

As a general rule, the father and the mother jointly exercise parental authority over their common children. However, if the children are illegitimate, Article 176 of the Family Code explicitly grants the sole parental authority to the mother, notwithstanding the father’s recognition of the child, as follows:

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (Emphasis supplied.)

Further, in case of the death, absence, or unsuitability of the mother in case of illegitimate children, substitute parental authority shall be exercised by the surviving grandparent, pursuant to Article 214 of the Family Code, or to the specified persons in the order provided under Article 216 thereof, which provisions read as follows:

Article 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

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Article 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over 21 years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over 21 years of age, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

In accordance with the above and based solely on your narration, since you are the sole surviving grandparent of J, who is an illegitimate child of your daughter and B, you shall exercise substitute parental authority over J.

However, as ruled by the Supreme Court, this does not mean that B is automatically and absolutely disqualified from exercising substitute parental authority over J. B may still exercise substitute parental authority over J and be given custody if B is J’s actual custodian, as provided in Article 216 of the Family Code.

In sum, as provided in Section 14 of the Rule on Custody of Minors, in determining the care and custody of minors, the Court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare.

(Spouses Magdalino Gabun, et al. vs. Winston Clark Stolk, Sr., G.R. No. 234660, 26 June 2023)

Atty. Kathy Larios