Dear PAO,

I have read some of your articles that have helped me find the answer to some of my questions, but I have one
question in mind right now. My husband acknowledged his 4-year-old daughter and uses his surname, but he
does not give regular financial support, because he has no work at all. The mother of the child insists that he
gives financial support or she will pursue it in court. My husband says that the mother should get the child a bank
account, so that when he has money, he can give her. However, the mother does not want that. She is
demanding monthly support from my husband, but since he has no work, he cannot make that promise to the
mother.
The mother of the child has work, so she can actually support her daughter. Can you give us advice on the
matter? I know the Family Code, but how can my husband support them since I am the breadwinner of the
family? We have two sons and we just rent. My salary is not enough for this matter. Thank you and God bless!
Chelle

Dear Chelle,
The Family Code provides for situations when an illegitimate child claims support from his parent even if the said
parent is already validly married to another person. The Family Code states:
“Art. 197. For the support of legitimate ascendants, descendants, whether legitimate or illegitimate, and brothers
and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give
support shall be answerable provided that in case the obligor has no separate property, absolute community or
the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the
share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n)”
According to this provision, when one of the spouses has an illegitimate child and he or she is obliged to support
the child, the support shall be taken from his or her separate property. However, if the spouse has no separate
property, it can be taken from the absolute community or conjugal partnership, meaning the common property of
the spouses. This shall be taken as an advance of the said spouse to the community property and shall be
deducted from his or her share when the community property is liquidated.
This means that the mother of the illegitimate child of your husband can still demand support even if your
husband does not have any income.
You did not mention in your letter what property regime prevails in your marriage. Please be informed that,
Article 91 provides that the absolute community consists of all properties owned by the spouses at the time of
celebration of the marriage and thereafter.
It shall not include (1) property acquired by one spouse during the marriage through gift or income, (2) property
for personal and exclusive use of the spouses, except for jewelry, (3) property acquired before the marriage by
either spouse who has legitimate descendants by a former marriage and its fruits and income.
On the other hand, Article 105 provides that in a conjugal partnership of gains, the husband and wife place in a
common fund the proceeds, products, fruits and income from their separate properties and those acquired by
either or both spouses through their efforts or by chance. It does not include property (1) brought to the marriage
as his or her own, (2) acquired by gratuitous title, i.e. through gift or donation, (3) acquired by right of
redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) purchased
with exclusive money of the wife or husband.
In both cases, the income of either spouse belongs to the absolute community or the conjugal partnership of
gains.
It must be noted that Article 197 speaks of deducting the said amount from the community property or
partnership only if financially capable. This means that after deducting the amount necessary for the support of
the family and only when there is still available funds can it be made liable to pay support. It is a basic principle
of support and embodied in Article 201 of the Family Code that, “[t]he amount of support, in the cases referred to
in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of
the recipient.” Articles 195 and 196 enumerate the persons obliged to support each other.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely
on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are
changed or elaborated.
Dear PAO,
I have a four-year-old illegitimate daughter. I am regularly providing for financial support for her but I think the
mother is asking for more than what my child actually needs. Is there a way where I can have legal custody over
my child since I’m the one who is capable of supporting our daughter’s needs?
Mike
Dear Mike,
The rule that the father and the mother shall exercise joint parental authority over the persons of their common
children is applicable only to legitimate children. For illegitimate children, parental authority is specifically granted
to the mother. Section 1 of RA 9255 provides:
“SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is
hereby amended to read as follows:
‘Article 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.
However, illegitimate children may use the surname of their father if their filiation has been expressly recognized
by the father through the record of birth appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father. Provided, the father has the right to institute
an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child
shall consist of one-half of the legitime of a legitimate child.’”
In the exercise of such parental authority, the mother shall be entitled to have the custody over the person of her
illegitimate child.
If you want to have legal custody over your illegitimate child, you need to file a verified petition for custody before
the Family Court of the place where you reside or where your daughter may be found (Section 3, Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors). But since the law vests the
custody over your illegitimate daughter to her mother, she shall not be deprived of the same in the absence of
compelling reasons showing her unfitness to exercise parental authority and custody. In the case of Briones vs.
Miguel, G.R. No. 156343, October 18, 2004, the Supreme Court of the Philippines enumerated some of the
grounds which are considered as ample justification to deprive a mother the custody over her minor child. These
are the following: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable disease.
Hence, you may be awarded the legal custody of your illegitimate child if you can sufficiently prove to the court
the unfitness of her mother. Otherwise, you will only be given visitorial rights and the custody shall still remain
with the mother.
As to your concern regarding the financial support for your child, you may file an action before the court to
determine and set the amount of support that your child is actually entitled to. In this case, the court shall take
into consideration your resources or your financial capacity and the actual needs of your daughter (Article 201,
Family Code of the Philippines). However, during the period that your daughter needs support, her alimony or
support may be altered or modified in accordance with the increase or decrease in her needs and in your means
or resources (Article 202, Family Code of the Philippines).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the
facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed
or elaborated.