The child’s best interest

By Atty. Eduardo T. Reyes III

                When the mother of a non-marital (illegitimate) child dies, who gets custody of the minor child?

One of the greatest tragedies in the life of a child is losing a parent. Like two (2) pillars that support a massive edifice, both parents provide the child the much-needed guidance, love and care that would mold them into the best persons they can be.

But when one, or worse, both parents are gone, then the child’s edifice could crumble.

Pursuant to Article 212 of the Family Code, “In case of absence or death of either parent, the parent present shall continue exercising parental authority. X x x.”

Is this rule automatic?

As recently explained by jurisprudence, the automatic exercise of custody by the “present parent” applies only to legitimate children. So when the child who loses a parent is non-marital (illegitimate), what rule governs?

The premise is found in Article 176 of the Family Code which as explained in Masbate v. Relucio, G.R. No. 235498, 30 July 2018, and the subsequent case of Maningding v. Bersamina, G.R. No. 252476, March 18, 2021, in respect to non-marital (illegitimate) children, sole custody belongs to the mother. When the mother dies, the sole custody does not belong to the biological father. Instead, what will apply is Article 216 on “substitute parental authority,” that will be exercised by the following:

“Article 216. x x x

  1. The surviving grandparent as provided in Art. 214;
  2. The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
  3. The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.”

Again, in Masbate v. Relucio, G.R. No. 235498, 30 July 2018, it was held that while the “surviving grandparent” appears to be number one in the list, it does not mean that the biological father comes last. Instead, Family Courts must take into account the “best interest of the child.” And if being with the biological father is for the best interest of the child, then the order of priority as stated in Article 216 may not be followed. It was further concluded in said case that “the child’s actual custodian” referred to in number 3, could refer to the biological father.

And in the more recent case of Spouses Gabun v. Stolk, Sr., G.R. No. 234660, which came down on June 26, 2023, involving a case where the Family Court ruled to automatically award custody of the minor to the biological father when the child’s mother died, the Supreme Court ruled that:

                “In the Court’s view, the RTC’s overreliance on the evidence of respondent’s parentage in awarding custody over Winston constituted grave jurisdictional error or such whimsical, capricious, and arbitrary exercise of discretion. Not only does this ruling violate the express legal provision granting parental authority to the mother with respect to illegitimate children and in case of her death, to the persons specifically authorized to exercise substitute parental authority. More importantly, such error effectively amounted to an abandonment of its legal and moral duty to rule in the best interest of the minor. It bears reemphasizing that the law and the Rules mandate that the best interest of the minor must be the primordial consideration in the determination of who should rightfully exercise custody and parental authority.”

In Spouses Gabun, when the mother of the non-marital (illegitimate) child died during childbirth, the biological father immediately claimed the child by presenting DNA evidence establishing his paternity. The Family Court awarded custody to the biological father to which the grandparents from the maternal side objected.

The Supreme Court reversed the Family Court by remanding the case back for proper determination of who between the grandparents mentioned and the biological father are/is the better custodian/s.

Indeed, in the tug-of-war over custody of a minor, their best interest takes primordial consideration.    

The child’s welfare and well-being are priceless in terms of their holistic development as the future belongs to them. For their souls, according to Kahlil Gibran, “dwell in the house of tomorrow; which we cannot visit. Not even in our dreams.”

                (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, MCLE lecturer, bar reviewer and a book author. His website is


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