The Family Code (Executive Order No. 209, s. 1987) of the Philippines states that both father and mother shall exercise joint parental authority over their child. In case of disagreement, the father’s decision shall prevail, unless a court decrees that the mother’s decision shall prevail.
But when the parents are separated, the issue becomes who should take custody of the child. If the parents could not agree, the court shall have to determine the matter based on the best interest and well-being of the child.
We have, however, the Family Code the “tender-age presumption”. It states that no child under seven (7) years old shall be separated from the mother unless the court finds compelling reasons to order otherwise. Jurisprudence lists some of these compelling reasons like abandonment, immorality, habitual drunkenness, drug addiction, and maltreatment of the child.
The court may ask the assistance of a social worker to determine who shall take custody of the child. But if the child is under seven years old, in all likelihood the mother will be awarded custody of her child.
According to the Supreme Court in one case: "The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only by compelling evidence of the mother’s unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease."
