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Custody of Non-Marital Child

Atty. Erik Donn Ignacio by Atty. Erik Donn Ignacio
June 27, 2025
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The world is becoming more and more “politically correct”. In the past, children born out of marriage are called “illegitimate” which to many is a term which is too negative making it appear that the child is not legal or not acceptable. It seems discrimination against these children is institutionalized and they are condemned for something they know nothing about. On the contrary, what should be condemned is the discrimination against these “illegitimate” children. Until recently, there was no term that could replace this term which is full of negative connotations. Thankfully, the term “non-marital child” has been introduced and the same is now being used in the legal community but not yet popularized in the general public. There have been changes on the rules regarding the use of surnames of non-marital children but little has changed on the substantial legal provisions on the rights of non-marital children.

Briones vs. Miguel

This is a case about who should have custody of a child born out of wedlock. Maricel Miguel and Joey Briones had a child out of wedlock- Michael Pineda. Maricel married a Japanese national and was a resident of Japan. Since Maricel was in Japan Joey took care of Michael. One day Maricel and a companion requested Joey to allow them to bring Michael to a department store and promised that they return him in the afternoon. They never did. Maricel took Michael which necessitated the filling of a habeas corpus case for Maricel to present the body of Michael before the Court of Appeals. Joey prayed that custody of the child be given to him since aside from being the biological father, he is also very capable of taking care of his needs. Maricel denied all the allegations and claimed that she did not take away Michael and the truth is that she brought Michael back from Japan after Joey was deported to the Philippines. The Court of Appeals (CA) denied Joey’s prayer and granted the custody of the minor to Maricel until Michael reaches the age of 10, then he can choose a parent to whom he will live with. Joey was granted visitational rights.

SC Modified the Decision

The High Tribunal modified the decision of the CA only with respect to the part where Michael upon reaching the age of 10 can choose a parent to whom he will live with. The Supreme Court said: “the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree of legal separation or because they are living separately de facto.” (Briones vs. Miguel G.R. No. 156343 October 18, 2004) Despite Joey’s plea that he be given custody since Maricel is always outside the country and that he can provide for the needs of the minor. The SC upheld the right of the mother to have custody of the illegitimate child. Said the Court: “Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines explicitly provides that 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. This is the rule regardless of whether the father admits paternity.” It was also emphasized by the Court that custody over the child cannot be easily taken away from the mother. “Only the most compelling of reasons, such as the mothers unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else.”

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