Custody of a non-marital child upon the death of the mother

Dear PAO,

My sister died, and she was survived by my 5-year-old nephew. My sister and my nephew's father were never married. Upon learning of the death of my sister, the father signified his plan to take over the custody of my nephew from our parents — the maternal grandparents. The father argued that as a surviving parent, he has a better right over the maternal grandparents of a non-marital child. Is this correct?

Rachel

Dear Rachel,

Evidence of parentage is not the sole basis in awarding custody over a minor. To elucidate this point, allow me to lead your attention to our pertinent laws and jurisprudence. In this regard, Article 176 and Article 214 of Executive Order 209, otherwise known as the Family Code of the Philippines, dictates the applicable law involving custody of non-marital child, viz.:

«Art. 176. 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.» (Emphasis and underscoring supplied)

In connection with the aforementioned provisions of law, the Supreme Court in the recent case of Gabun v. Stolk (GR 234660, June 26, 2023) penned by Associate Justice Antonio Kho Jr., says:

«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