Grandparents do not have an automatic, standing right to custody or visitation while a grandchild's parents are alive and capable of exercising parental authority. But Family Code Article 216 makes the surviving grandparent first in line to exercise substitute parental authority when both parents are unavailable, deceased, or unfit, and are ahead of an older sibling or the child's actual custodian in the statutory order. Visitation in an ordinary custody dispute between parents is typically addressed as part of that case rather than as an independent grandparent's right.
The starting point: parental authority belongs to the parents
Under the Family Code, parental authority and responsibility over a minor child belongs, in the first instance, to the child's parents jointly. Grandparents do not sit alongside the parents as co-holders of that authority merely by virtue of the relationship. Their legal role becomes concrete only when the law's default holders of parental authority — the parents — are out of the picture.
When grandparents step in: substitute parental authority
Family Code Article 216 addresses exactly this situation. It provides that “in default of parents or a judicially appointed guardian,” substitute parental authority is exercised, in order:
- The surviving grandparent;
- The oldest brother or sister of the child, if over twenty-one years of age, unless unfit or disqualified; and
- The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
This is a genuine statutory preference, not a mere courtesy: when parents are deceased, have been deprived of parental authority by a court, or are otherwise unavailable, the surviving grandparent is placed ahead of an adult sibling or even an existing actual caregiver in the order of who exercises substitute authority over the child, including authority over the child's property when a judicial guardian must be appointed.
“In default of parents” covers several real situations: both parents have died, both have been judicially declared unfit or have had parental authority terminated, or both are otherwise incapable of exercising it (for example, long-term incapacity or abandonment). It generally does not cover a situation where a fit, capable parent is simply unwilling to let a grandparent see the child — that is a different kind of dispute.
What about visitation while both parents are alive?
The Family Code does not set out a freestanding “grandparent visitation” provision the way substitute parental authority is spelled out. Where grandparents want continued access to a grandchild despite a parent's objection — commonly arising after a son or daughter has died, or after a bitter falling-out with an in-law who has custody — the practical route is usually to raise the matter within a custody or guardianship proceeding, where the court's overriding standard is the best interest of the child, and a grandparent's relationship with the child is one factor a court can weigh in fashioning custody or visitation arrangements, particularly where the grandparent has functioned as a real caregiver.
Grandparents raising a grandchild as a solo parent
A related, increasingly common scenario is a senior grandparent who has taken on sole parental care of a grandchild — whether because the parents are deceased, working overseas, incapacitated, or otherwise absent. This situation is now expressly recognized under the solo parents' welfare law, which extends solo parent benefits to a “solo grandparent” who is a senior citizen exercising sole parental care and support over grandchildren who are unmarried or unemployed. This is a distinct legal track from the Article 216 substitute-authority rule, aimed at giving that grandparent access to cash subsidies, PhilHealth coverage, and other support while functioning as the child's primary caregiver.
Practical takeaway
A grandparent's legal position strengthens considerably once the parents are genuinely out of the picture — the law puts them first in line for substitute authority. Where both parents remain alive and legally capable, a grandparent's access is generally worked out informally, through the family, or, if truly contested, addressed inside an existing custody or guardianship case rather than through a separate visitation action.
Frequently Asked Questions
Can grandparents get custody of a grandchild if both parents are alive? Generally only if both parents are unfit, have been deprived of parental authority by a court, or are otherwise incapable of exercising it. Family Code Article 216 puts the surviving grandparent first in line for substitute parental authority, but this applies 'in default of parents,' not simply because a parent objects to the grandparent's involvement.
Who comes first in line for substitute parental authority — a grandparent or an older sibling? The surviving grandparent, under Article 216. The child's oldest brother or sister over 21 comes second, and the child's actual custodian over 21 comes third, in that statutory order.
Do grandparents have an automatic right to visit their grandchildren? Not as a standalone statutory right. Where a parent objects, grandparents typically need to raise the issue within a custody or guardianship proceeding, where a court can consider the grandparent-grandchild relationship as one factor in the child's best interest.
Are there benefits for grandparents raising grandchildren as solo caregivers? Yes. The Expanded Solo Parents Welfare Act (RA 11861) extends solo parent benefits to a senior-citizen grandparent who has sole parental care and support of grandchildren who are unmarried or unemployed, subject to the law's other qualifying conditions.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.