In general, the full custody of a child below seven is given to the mother. However, a mother may risk losing custody if found guilty of subjecting children to any type of abuse.
The compelling reasons for a mother to lose child custody:
1. insanity
2. neglect
3. abandonment
4. immorality and unemployment
5. habitual drunkenness
6. drug addiction
7. maltreatment of the child
8. affliction with a communicable illness
For children older than seven years of age, they have the right to state their preference. However, the court is not bound by the children's choice as it also has to exercise its discretion by ensuring that the parent who gets the custody is deemed fit for the role. The custody may also be given to a third person.
"Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well‑being. (n)
The State ought not to interfere with the right of parents to bring up their child unless its exercise causes potential harm to him. The State steps in, through the law, only if there are compelling reasons to do so. State intrusion is uncalled for where the welfare of a child is not jeopardized.
Regardless of marital circumstances, the mother and the father are presumed to be fit and competent to act in the best interest of their child. They can agree to share parental authority or, if you will, parental custody even as they decide to live under separate roofs. In a voluntary joint custody the mother might want to keep the child in her home during schooldays but allow the father to have him on weekends. And they could agree on some device for arriving at a consensus on where the child will study and how his spiritual needs are to be attended to.
The law does not take away from a separating couple the authority and competence to determine what is best for their child. If they resolve on their own that shared parental custody is in their child's best interest, then the law and the courts have no business vetoing their decision. The parents enjoy a primary right to make such decision. I cannot concede that, where the child is below seven years of age, any agreement that diminishes the mothers absolute custody over him is void.
The second paragraph of Article 213 of the Family Code should not be read as prohibiting separated couples from agreeing to a custody arrangement, other than sole maternal custody, for their child of tender age. The statutory preference for the mothers custody comes into play only when courts are compelled to resolve custody fights between separated parents. Where the parents settle the matter out of court by mutual agreement, the statutory preference reserved to the mother should not apply.
A reading of the entire text of Article 213 shows that the second paragraph applies only to custody disputes that have reached the courtroom. Thus:
Article 213. 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 considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.
It is unmistakable that the legislative policy is to vest the separated mother with physical custody of the child under seven years old, in cases where the courts are called upon to designate a parent for the exercise of parental authority. The second sentence of the first paragraph and the second paragraph itself merely qualify the general rule expressed in the first sentence that parental authority shall be exercised by the parent designated by the Court, in case of parental separation.
In choosing the parent who will exercise parental authority, the court must take into account all relevant considerations. One of these is the child's age, as the court is directed to give due regard to the child's choice, if the child is more than seven years of age. If the child, however, is below seven years of age, the court cannot separate the child from the mother, except for compelling reasons. This is the import of the entire provision.
Thus, no legislative policy is violated if separated parents are allowed to voluntarily agree to a child custody arrangement other than sole maternal custody. It is not the policy of the state to prohibit separated parents from compromising on child custody even if the child is of tender age. On the contrary, voluntary custody agreements are generally favored as it can only work for the best interest of the child.
It is not logical to say that the Court would be subverting the legislative policy of avoiding a tragedy where a mother has seen her baby torn away from her if separated parents are allowed to enter into a joint custody agreement. It can hardly be said that a child is being torn away from the mother, if the mother sees the wisdom and benefit of sharing custody of the child with the father. The voluntary nature of the agreement negates any deep sorrow or sense of deprivation that the mother may experience on account of her separation from the child."
