ARTICLE 49

ARTICLE 49

DURING THE PENDENCY OF THE ACTION AND IN THE ABSENCE OF ADEQUATE PROVISION IN A WRITTEN AGREEMENT BETWEEN THE SPOUSES, THE COURT SHALL PROVIDE FOR THE SUPPORT OF SPOUSES AND THE CUSTODY AND SUPPORT OF THEIR COMMON CHILDREN. THE COURT SHALL GIVE PARAMOUNT CONSIDERATION TO THE MORAL AND MATERIAL WELFARE OF SAID CHILDREN AND THEIR CHOICE OF THE PARENT WITH WHOM THEY WISH TO REMAIN AS PROVIDED FOR IN TITLE IX. IT SHALL ALSO PROVIDE FOR APPROPRIATE VISITATION RIGHTS OF THEIR PARENTS.

RULES TO BE FOLLOWED IN ACTION FOR ANNULMENT OR NULLITY OF MARRIAGE:

ARTICLE 49 THE FAMILY CODE OUTLINES THE THINGS THAT THE COURT SHALL DO DURING THE PENDENCY OF THE ACTION FOR ANNULMENT OR DECLARATION OF NULLITY OF MARRIAGES SUCH AS:

1.PROVIDE FOR THE SUPPORT OF THE CHILDREN AND THE SPOUSES

2.PROVIDE THE CUSTODY OF THE 

COMMON CHILDREN

3.GIVE PARAMOUNT CONSIDERATION TO THE MORAL AND MATERIAL  WELFARE OF THE CHILDREN AND THEIR CHOICE OF THE PARENT WITH WHOM THEY WANT TO REMAIN;

4.PROVIDE FOR APPROPRIATE  VISITATION RIGHTS OF THE OTHER PARENT.

EXPLANATION:

Accorded to parents spring from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs.  However, the right of a parent to the custody and control of his child is not an absolute one.

Jurisprudence provides a glimpse as to how the Supreme Court treats the rights of parents to the custody of their minor children. 

Of considerable importance is the rule long accepted by the courts that “the right of parents to the custody of their minor children is one of the natural rights incident to parenthood," a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship.

The father and mother, being the natural guardians of their minor children, are duty-bound and entitled to keep them in their custody and company. As stated in the Family Code,  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." Caring for and rearing them, as the provision states, necessarily entails having custody over their minor children.

This primacy of parental custody also finds support in Article It shall ensure that a child shall not be separated from his or her parents against their will, except when competent authority subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child…"

Custody As Provided By The Law

Parents primarily have custody over their children. All is well and good when the family is living peacefully. But the problem is when there arise irreconcilable differences between the parents, such that the family falls apart. In these cases, the law provides for ways to determine which parent shall have custody of the children. For example, the Family Code provides that: During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. 

RELATED CASES:

CERVANTES V FAJARDO GR NO. 79955, JANUARY 27, 1989

•ESPIRITU, ET AL. V. CA, ET AL 59SCAD  631, 242 SCRA

 362, MARCH 15, 1995