Masbate v. Relucio (2018): Illegitimate Child and Grandparents

Renalyn Masbate and Ricky James Relucio lived together, without being married, in the house of Renalyn's parents. Their daughter was born in 2012. The relationship ended in April 2015. Renalyn went to Manila to study and, according to Ricky James, left their daughter in his care.

Ricky James said that in November 2015, Renalyn's parents, the spouses Masbate, took the girl from the school where he had enrolled her. They refused to give her back and showed a special power of attorney in which Renalyn gave them parental rights and custody. Ricky James filed a petition for habeas corpus and child custody in the Regional Trial Court of Legazpi City, Albay.

At a hearing, Renalyn brought the child and said she wanted her daughter to stay with her. The trial court gave custody to Renalyn under Article 213 and stopped the case. Ricky James appealed. He argued that the tender-age presumption can be overcome by proof of neglect, abandonment and unemployment, and that Renalyn had abandoned the child.

The Court of Appeals sent the case back to the trial court for a full trial, kept custody with Renalyn in the meantime and gave Ricky James visitation of two days a week. It later also gave him "temporary custody" once a month for up to 24 hours. Renalyn and her parents appealed to the Supreme Court. They argued that a father of an illegitimate child has no right to custody at all, and that Article 213 applies only to married parents.

Did the Court of Appeals correctly send the case back to the trial court to decide who should have custody of the child?

The Supreme Court partly granted the petition. It affirmed the order sending the case back for trial, but deleted the temporary custody given to the father. His visitation rights of two days a week stayed, and he could take his daughter out only with Renalyn's written consent. The trial court was told to hear the case immediately.

The mother has sole parental authority. Under Article 176, illegitimate children are under the parental authority of their mother. The Court said mothers have sole parental authority over their illegitimate children "notwithstanding the father's recognition of the child," and keep custody unless a compelling reason shows they are unfit. Joint parental authority under Article 211 is for the common children of married parents.

The tender-age rule covers illegitimate children. The petitioners relied on Pablo-Gualberto v. Gualberto, which said Article 213 contemplates married parents. The Court explained that this statement came from Briones v. Miguel and was about the child's right to choose a parent, which applies only between married parents. The second paragraph of Article 213, that no child under seven "shall be separated from the mother unless the court finds compelling reasons to order otherwise," does not distinguish between legitimate and illegitimate children. So the trial court must hear evidence on whether there are compelling reasons, such as neglect or abandonment.

Grandparents come first, but not automatically. If the mother is found unfit, the Family Code gives substitute parental authority to the surviving grandparent first (Articles 214 and 216). But the Court said the grandparents' preference depends on their fitness. Ricky James had actual custody of the child before the dispute, so he could go to court to regain custody as her actual custodian. The Court would not adopt a rigid view that bars him, because the child's best interest is the main consideration. It said he "deserves, at the very least, to be given his day in court."

Visitation before trial, not custody. The Rule on Custody of Minors provides temporary visitation rights before trial. Temporary custody may be given only in the judgment after trial. By giving Ricky James custody even for 24 hours a month, the Court of Appeals had overturned the tender-age presumption on his "bare allegations." The Court said Renalyn's fitness must be decided at trial before she can be denied custody "even for the briefest of periods."

The tender-age presumption in the second paragraph of Article 213 of the Family Code applies to illegitimate children; the mother of an illegitimate child has sole parental authority and custody unless compelling reasons are proven at trial, and before trial the father may be given visitation rights but not temporary custody, although a father who was the child's actual custodian may sue to regain custody.

Masbate settles two points. First, the protection of children under seven is not only for married parents: an unmarried mother has the same tender-age presumption in her favor. Second, the father of an illegitimate child is not shut out completely. If he actually raised the child and the mother is proven unfit, a court may weigh whether custody with him serves the child's best interest, even though the grandparents have a preference under the law.

Until a court rules after trial, the mother keeps custody and parental authority. The father's rights are limited to the visits the court allows, and taking the child out needs her written consent, as in Grande v. Antonio. See who has custody of an illegitimate child and custody of a child under seven.

Made-up illustration: Liza and Paolo were never married. When their son is three, Liza moves to Manila to study and leaves him with Paolo for months. Later, Liza's parents take the boy. Under Masbate, Liza keeps custody while the case is pending, because the boy is under seven. Paolo can visit him. If Paolo proves at trial that Liza neglected or abandoned their son, the court then decides whether the boy should be with his grandparents or with Paolo, based on what is best for the child.

Read the full decision on the Supreme Court E-Library (link in the sources below). For a custody dispute about a real child, see where to find legal help.