By Atty. Eduardo T. Reyes III
“So many memories and so little worth remembering, and in front of me — a long, long road without a goal…” rued Ivan Turgenev in his novel Fathers and Sons.
This heartrending novel is eponymous in the sense that it strikes at the heart of the relationship between fathers and sons. Of course, mothers and daughters also have their own unique way of establishing bonds that last a lifetime; but for this particular column, what is at the core is the father’s sentiments about his role in the life of his illegitimate son or daughter.
Under our Family law, As a general rule, the father and the mother shall jointly exercise parental authority over the persons of their common children. However, insofar as illegitimate children are concerned, Article 176 of the Family Code states that illegitimate children shall be under the parental authority of their mother. (Renalyn A. Masbate et al v. Ricky James Relucio, G.R. No. 235498, 30 July 2018).
Also, Article 213 of the Family Code states that “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant consideration, especially the choice of the child over seven years of age, unless the parent chosen is unfit. X x x No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise”.
Assuredly, in case of separation of his/ her parents, while a legitimate child who is more than seven (7) years old gets to choose as to which parent he or she would want to go with, this does not apply to an illegitimate child. As held in Renalyn A. Masbate et al v. Ricky James Relucio, the “right of choice” by a child who is eight (8) years of age or older only belongs to a legitimate child and not an illegitimate child. This means that insofar as the illegitimate child is concerned, he/ she is bound to stay with the mother until the age of majority.
But what about the father of the illegitimate child, can he just be completely shut out from the life of the child?
Being a non-custodial parent, the father in this instance cannot demand full custody of his illegitimate child. But can he visit? Can he take the child out for a snack or to the beach, or to have a sleepover?
In the recent case of John Alvin L. Maningding v. Zia Nicole C. Bersamina, G.R. No. 252476. March 18, 2021, the Supreme Court definitively approved all these in favor of the father by ruling that:
“The Constitution itself speaks in terms of the “natural and primary rights” of parents in the rearing of the youth. There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate members of the family and so explicitly encompass illegitimate relationships as well. Then, too, and most importantly, in the declaration of nullity marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children. X x x
Notwithstanding the foregoing, a biological father’s visitation right (i.e., the right of access of a non-custodial parent to his or her child or children) has been recognized as an inherent and natural right.”
This ruling, it should be noted, applies not only to a child who was born to unwed parents but also to one born within wedlock, but the marriage was later declared void. This latter scenario also produces illegitimate children -except those void marriages under Article 36 (psychological incapacity) and Article 53 (failure to record the decree of nullity of marriage) both pursuant to Article 54 of the Family Code.
Simply, a child conceived or born to parents who are married is legitimate; while one conceived and born outside a valid marriage (to include void marriages subject to the exceptions just mentioned), is illegitimate.
As earlier said, since the father of the illegitimate child is not entitled to full custody but only to visitorial and access rights, curiously, what do these include?
While Philippine jurisprudence may not have extensively dealt with this issue to date, US case law -where we also look to for guidance- fortunately has something to say about this. In the famous custody case entitled Abbott v. Abbott, 560 U.S., I, 8 (2010), “Access rights” had been defined as the “right to take a child for a limited period of time to a place other than the child’s habitual residence”. Further, it was held that “the purpose of the Hague Convention is to secure the best interests of children by ensuring that courts of their home countries make their custody determinations. X x x “Being entitled to bar the child’s departure from Chile gave Mr. Abbott a significant right relating to his boy’s care and development- he could thus determine “ the language the child speaks, the identity he finds, or the culture and traditions [he] will come to absorb.”
In the dissenting opinion of Justice Stevens in Abott, he opined that “access rights” include the “authority to decide whether his son undergoes a particular medical procedure; whether his son attends a school field trip; whether and in what manner his son has a religious upbringing; or whether his son can play a videogame before he completes his homework.”
Indeed, this is how pervasive “visitation and access rights” are. They go to the very depths of the child’s moral values formation. The father must play a significant role in this regard and by allowing the child to spend some time with his/ her father, it will allow for him or her to rub off some if not most of his moral values on his child. Even his quiet whispers of love will surely reverberate in the corridors of his child’s life, now and always.
Fittingly, this article closes with a profound reminder from Ivan Turgenev, thus: “If we wait for the moment when everything, absolutely everything is ready, we shall never begin.”
Certainly, no less than the law recognizes every father’s inherent and natural right to visit, have access, and make time for his children.
And there is no better time to exercise that right than now.
(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).
