Custody granted to OFW parent

We hear of a number of cases where the husband and wife break up, forcing the latter to seek employment abroad. This she has to do as a mother to ensure that she is able to financially provide for her children’s needs. In many cases where the children are minors, they are left to the care of the wife’s parents.

In a custody battle between the spouses, can the husband ask that custody of the minor children be awarded to him, considering that the wife is an absentee mother? Absentee, as she is not physically present with her children, but rather miles away abroad?

In this particular case, the husband contended that his wife was working in France and the children were left in the care of her mother. He questioned the award of custody by the trial court, as affirmed by the appellate court, of the couple’s children to his wife.

When the issue was brought up to the Supreme Court, it issued a pronouncement that custody can indeed be awarded to the wife even if she is working abroad.

“We still affirm the award of sole custody over the minor children to respondent B. Respondent B has not been remiss in exercising her right of parental authority and custody over X and Z despite being overseas. As emphasized by the CA in awarding sole custody to her: With respect to petitioner-appellant’s argument that respondent­-appellee B is absent, this Court finds from the evidence presented that while respondent-appellee B is in fact working abroad, she continues to exercise parental authority over her minor children X and Z.

“With the help of technology, respondent-appellee B is able to freely and constantly communicate with her children and see them every day before she goes to work through a CCTV with built-in microphone and speaker, as reported in the Parenting Capability Assessment Report dated 31 May 2021 submitted by the social worker of Antipolo City upon order of the family court.

“In the report, it was stated that respondent-appellee B has been sending money every month to support her children’s daily expenses. While the situation may not be ideal, the minor children X and Z are still able to receive the attention, care, support, and supervision of their mother in their current setting and home environment, as the law intended, with the assistance of respondent-appellee C.

“On the other hand, petitioner-appellant failed to establish that respondent-appellee B’s stay in Paris is permanent. In fact, petitioner-appellant himself stated that respondent-appellee B had returned to the country three times since July 2018. In other words, these circumstances taken together show that while respondent-appellee B may not be physically present, she cannot be considered absent within the contemplation of Article 212 of the Family Code as petitioner-appellant argues, as she still essentially exercises parental authority over said minor children.

“Petitioner contends that despite being awarded sole custody of their minor children, respondent B should be considered absent from the country due to her work abroad based on Article 212 of the Family Code, which states: ‘In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.’

“According to the petitioner, respondent B is unable to fulfill her duty to their minor children, and for that, he should be the one to exercise both parental authority and custody over them as he is present in the country and can exercise custody.

“We disagree. Respondent B cannot be considered absent in contemplation of Article 212 of the Family Code. As found by the RTC and the CA, respondent B returned to the Philippines to visit their children three times since 2018, which contravenes his claim that her absence is permanent. Further, it was found that respondent B makes a continuous effort to communicate with their children and watches them through the CCTV system installed in C’s home. She is also able to financially support them, providing P50,000 to P60,000 monthly for their daily needs.”

The quoted portion of the decision is from SC G.R. 266116, 22 July 2024. That and the parties’ names have been redacted.