Dear PAO,
Since my daughter died in October 2017, my grandson, who was barely two years old at the time, has been living with me. I have no information about his father except his name and the fact that he abandoned my daughter after learning that she was pregnant. They were not married. Last December 2025, a man came to our house and introduced himself as the father of my grandson. He wanted to take my grandson as he claimed that his wife could no longer bear a child. He also threatened to sue me if I refuse to cooperate. I am so confused. I want to keep my grandson as I know it would be in his best interest to stay with us — the only family that he has known. Is it true that his father can just take him from us?
Nana Atang
Dear Nana Atang,
Generally, parents have the primary right to the custody and care of their children. This is enunciated under Articles 211 and 212 of the Family Code of the Philippines which state that “[t]he father and the mother shall jointly exercise parental authority over the persons of their common children.” In the event of death or absence of either parent, the other parent shall continue to exercise parental authority.
In certain situations, where both parents are absent and unable to fulfill their duties, substitute parental authority may be granted to grandparents, oldest sibling, aunts or uncles or other persons appointed by court, in consonance with Article 214 and 216 of the same Code.
However, a different rule applies in cases of non-marital children. In a recent ruling penned by Associate Justice Antonio T. Kho, Jr., the Supreme Court granted sole custody of the illegitimate child to his grandmother notwithstanding the presence of a biological father, in application of the substitute parental authority under the Family Code. The High Court clarified its Decision as follows:
“As a rule, the father and the mother shall jointly exercise parental authority over the persons of their common children. However, with respect to illegitimate children, Article 176 of the Family Code explicitly grants the sole parental authority to the mother, notwithstanding the father’s recognition of the child. In the exercise of that authority, mothers are consequently entitled to keep their illegitimate children in their company, and the Court will not deprive them of custody, absent any imperative cause showing the mother’s unfitness to exercise such authority and care. xxx
“It must be clarified, however, that the foregoing interpretation finds application only in situations where the father and mother jointly exercise parental authority over the persons of their common children as provided under Article 211 of the Family Code. Where, however, the parental authority is granted solely to the mother as in the case of illegitimate children, the substitute parental authority shall be exercised by the grandparents or the specified persons as provided under Article 214 and 216 of the Family Code, in case of the mother’s death, absence, or unsuitability. Indeed, to read otherwise would effectively permit circumvention of the legislative intent to grant sole parental authority to the mother with respect to their illegitimate children.” (Spouses Gabun vs. Stolk, Sr., G.R. No. 234660, 26 June 2023; emphasis supplied).
In your case, your daughter was not married to the biological father of her son. Thus, she had sole custody over her son. Applying both the law and the foregoing jurisprudence, as the grandmother, you are granted substitute parental authority and custody over your grandson. The biological father is therefore incorrect to assert custody over his non-marital son.
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.
