THIRD DIVISION The CA narrated the antecedents as follows:
[G.R. No. 154994. June 28, 2005]
JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO
V, respondent.
DECISION
PANGANIBAN, J.:
When love is lost between spouses and the marriage inevitably results in separation,
the bitterest tussle is often over the custody of their children. The Court is now tasked to
settle the opposing claims of the parents for custody pendente lite of their child who is
less than seven years of age. There being no sufficient proof of any compelling reason to
separate the minor from his mother, custody should remain with her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review[1] filed by
Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30,
2002 Decision[2] of the Court of Appeals (CA) in CA-pGR SP No. 70878. The assailed
Decision disposed as follows:
WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The
assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the
child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].
The [respondent] court/Judge is hereby directed to consider, hear and resolve
[petitioners] motion to lift the award of custody pendente lite of the child to
[respondent].[3]
The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V under
Rule 65 of the Rules of Court, charging the appellate court with grave abuse of discretion
for denying his Motion for Partial Reconsideration of the August 30, 2002 Decision. The
denial was contained in the CAs November 27, 2002 Resolution, which we quote:
We could not find any cogent reason why the [last part of the dispositive portion of our
Decision of August 30, 2002] should be deleted, hence, subject motion is hereby
DENIED.[5]
The Facts
x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional
Trial Court of Paraaque City] a petition for declaration of nullity of his marriage to x x x
Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente lite of their
almost 4-year-old son, minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly
took away with her from the conjugal home and his school (Infant Toddlers Discovery
Center in Paraaque City) when [she] decided to abandon [Crisanto] sometime in early
February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the
ancillary prayer of [Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn]
allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and
Ms. Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was]
also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded custody pendente
lite of the child to [Crisanto.] [T]he Order partly read x x x:
x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor
child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was
enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he has failed to
see his child. [Joycelyn] and the child are at present staying with the formers step-father
at the latters [residence] at Caminawit, San Jose, Occidental Mindoro.
Renato Santos, President of United Security Logistic testified that he was commissioned
by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the conclusion that
[she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu City.
The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of
the spouses who stated that [the mother] does not care for the child as she very often
goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental authority over the persons of
their children. In the case of disagreement, the fathers decision shall prevail, unless
there is a judicial order to the contrary.
The authority of the father and mother over their children is exercised jointly. This
recognition, however, does not place her in exactly the same place as the father; her
authority is subordinated to that of the father.
In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child, taking
into account the respective resources and social and moral situations of the contending
parties.
The Court believes that [Joycelyn] had no reason to take the child with her. Moreover,
per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro.
WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto
Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.
x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of
custody pendente lite of the child to [Crisanto] was set but the former did not allegedly
present any evidence to support her motion. However, on May 17, 2002, [the] Judge
allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time
awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein
reproduced, to wit:
Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyns] Motion to Dismiss and the respective Oppositions thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to
in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo
Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As a matter
of fact, the body of the Complaint states her name correct[ly]. The law is intended to
facilitate and promote the administration of justice, not to hinder or delay it. Litigation
should be practicable and convenient. The error in the name of Joycelyn does not
involve public policy and has not prejudiced [her].
This case was filed on March 12, 2002. Several attempts were made to serve summons
on [Joycelyn] as shown by the Sheriffs returns. It appears that on the 4th attempt on
March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns mother and
stepfather, respectively,] read the contents of the documents presented after which
they returned the same.
The Court believes that on that day, summons was duly served and this Court acquired
jurisdiction over [Joycelyn].
The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.
The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old.
Under Article 213 of the Family Code, he shall not be separated from his mother unless
the Court finds compelling reasons to order otherwise. The Court finds the reason
stated by [Crisanto] not [to] be compelling reasons. The father should however be
entitled to spend time with the minor. These do not appear compelling reasons to
deprive him of the company of his child.
When [Joycelyn] appeared before this Court, she stated that she has no objection to the
father visiting the child even everyday provided it is in Mindoro.
The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P.
Gualberto, with [the] right of [Crisanto] to have the child with him every other weekend.
WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother Joycelyn
Pablo Gualberto with the right of the father, x x x
[Crisanto], to have him every other week-end.
3. Parties are admonished not to use any other agencies of the
government like the CIDG to interfere in this case and
to harass the parties.[6]
In a Petition for Certiorari[7] before the CA, Crisanto charged the Regional Trial Court
(Branch 260) of Paraaque City with grave abuse of discretion for issuing its aforequoted
May 17, 2002 Order. He alleged that this Order superseded, without any factual or legal
basis, the still valid and subsisting April 3, 2002 Order awarding him custody pendente
lite of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been
committed by the trial court in reversing the latter courts previous Order dated April 3,
2002, by issuing the assailed May 17, 2002 Order. The appellate court explained that the
only incident to resolve was Joycelyns Motion to Dismiss, not the issuance of the earlier
Order. According to the CA, the prior Order awarding provisional custody to the father
should prevail, not only because it was issued after a hearing, but also because the trial
court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyns Motion to lift the award of custody pendente lite to
Crisanto, as that Motion had yet to be properly considered and ruled upon. However, it
directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions.[8]
Issues
 In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:
1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the
child to the father, violated Art. 213 of the Family Code, which mandates that no child
under seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise.
2. Is it Article 213 or Article 211 which applies in this case involving four-year old
Rafaello?[9]
On the other hand, Crisanto raises the following issues:
A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of
jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge to
consider, hear and resolve the motion to lift award of custody pendente lite of the child
to petitioner and x x x denied the motion for reconsideration thereof in its November
27, 2002 Resolution, considering that: (1) there is no such motion ever, then or now
pending, with the court a quo; (2) the November 27, 2002 Resolution is
unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the validity of
which has been upheld in the August 30, 2002 Decision of the respondent Court, has
become final and executory; and
B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts,
physical and mental condition of the illegally detained Minor Rafaello is now unknown
to petitioner and preliminary mandatory injunction with urgent prayer for immediate
issuance of preliminary [injunction], petitioner having a clear and settled right to
custody of Minor Rafaello which has been violated and still is being continuously
violated by [petitioner Joycelyn], be granted by this Honorable Court? [10]
Being interrelated, the procedural challenges and the substantive issues in the two
Petitions will be addressed jointly.
The Courts Ruling
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall first dispose
of a threshold issue. In GR No. 154994, therein Respondent Crisanto contends that the
Petition for Review was filed beyond the deadline (October 24, 2002) allowed by the Rules
of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition was
sent by speed mail, only on November 4, 2002. Furthermore, he assails the Petition for
its prematurity, since his Motion for Partial Reconsideration of the August 30, 2002 CA
Decision was still pending before the appellate court. Thus, he argues that the Supreme
Court has no jurisdiction over Joycelyns Petition.
Timeliness of the Petition
The manner of filing and service Joycelyns Petition by mail is governed by Sections
3 and 7 of Rule 13 of the Rules of Court, which we quote:
SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders,
judgments and all other papers shall be made by presenting the original copies thereof,
plainly indicated as such personally to the clerk of court or by sending them by
registered mail. xxx In the second case, the date of mailing of motions, pleadings and
other papers or payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of their filing, payment,
or deposit in court. The envelope shall be attached to the records of the case.
xxxxxxxxx
SEC. 7. Service by mail. Service by registered mail shall be made by depositing the copy
in the office, in a sealed envelope, plainly addressed to the party or his counsel at his
office, if known, otherwise at his residence, if known, with postage fully pre-paid, and
with instructions to the postmaster to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the locality of either the sender of the
addressee, service may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CAs August 30, 2002 Decision on
September 9, 2002. On September 17, she filed before this Court a Motion for a 30-day
extension of time to file a petition for review on certiorari. This Motion was
granted,[11] and the deadline was thus extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were sent to this
Court and to the parties by registered mail[12] at the Bian, Laguna Post Office on October
24, 2002. This is the date clearly stamped on the face of the envelope[13] and attested to
in the Affidavit of Service[14] accompanying the Petition. Petitioner Joycelyn explained that
the filing and the service had been made by registered mail due to the volume of delivery
assignments and the lack of a regular messenger.[15]
 The Petition is, therefore, considered to have been filed on October 24, 2002, its
mailing date as shown by the post office stamp on the envelope. The last sentence of
Section 3 of Rule 13 of the Rules provides that the date of filing may be shown either by
the post office stamp on the envelope or by the registry receipt. Proof of its filing, on the
other hand, is shown by the existence of the petition in the record, pursuant to Section
12 of Rule 13.[16]
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date
November 2, 2002, merely discloses when the mail matters received by the Bian Post
Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange for
distribution to their final destinations.[17] The Registry Bill does not reflect the actual
mailing date. Instead, it is the postal Registration Book[18] that shows the list of mail
matters that have been registered for mailing on a particular day, along with the names
of the senders and the addressees. That book shows that Registry Receipt Nos. 2832-A
and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued on
October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his
Urgent Motion for Partial Reconsideration[19] was still awaiting resolution by the CA when
she filed her Petition before this Court on October 24, 2002. The CA ruled on the Motion
only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed her Motion for
Extension of Time to file her Petition for Review, she might have still been unaware that
he had moved for a partial reconsideration of the August 20, 2002 CA Decision.
Nevertheless, upon being notified of the filing of his Motion, she should have manifested
that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns lapse
may be excused in the interest of resolving the substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when
it ordered the trial court judge to consider, hear and resolve the motion to lift the award
of custody pendente lite without any proper motion by Joycelyn and after the April 3,
2002 Order of the trial court had become final and executory. The CA is also charged with
grave abuse of discretion for denying his Motion for Partial Reconsideration without
stating the reasons for the denial, allegedly in contravention of Section 1 of Rule 36 of the
Rules of Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper
To begin with, grave abuse of discretion is committed when an act is 1) done
contrary to the Constitution, the law or jurisprudence;[20] or 2) executed whimsically or
arbitrarily in a manner so patent and so gross as to amount to an evasion of a positive
duty, or to a virtual refusal to perform the duty enjoined.[21] What constitutes grave abuse
of discretion is such capricious and arbitrary exercise of judgment as that which is
equivalent, in the eyes of the law, to lack of jurisdiction.[22]
On the basis of these criteria, we hold that the CA did not commit grave abuse of
discretion.
First, there can be no question that a court of competent jurisdiction is vested with
the authority to resolve even unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues raised in a particular pleading or
when the unassigned issues are inextricably linked or germane to those that have been
pleaded.[23] This truism applies with more force when the relief granted has been
specifically prayed for, as in this case.
Explicit in the Motion to Dismiss[24] filed by Joycelyn before the RTC is her ancillary
prayer for the court to lift and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the necessary consequence of granting
her Motion to Dismiss would have been the setting aside of the Order awarding Crisanto
provisional custody of the child. Besides, even if the Motion to Dismiss was denied -- as
indeed it was -- the trial court, in its discretion and if warranted, could still have granted
the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of the
provisional nature of the April 3, 2002 Order. Under Rule 38 [25] of the Rules of Court,
verification is required only when relief is sought from a final and executory Order.
Accordingly, the court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a miscarriage of justice.[26]
Denial of the Motion for
Reconsideration Proper
 Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final orders on
the merits, not to those resolving incidental matters.[27] The provision reads:
SECTION 1. Rendition of judgments and final orders. A judgment or final order
determining the merits of the case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law on which it is based, signed
by him, and filed with the clerk of court. (Italics supplied)
Here, the declaration of the nullity of marriage is the subject of the main case, in
which the issue of custody pendente lite is an incident. That custody and support of
common children may be ruled upon by the court while the action is pending is provided
in Article 49 of the Family Code, which we quote :
Art. 49. During the pendency of the action[28]
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. x x x.
Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its
questioned Resolution, the CA clearly stated that it could not find any cogent reason to
reconsider and set aside the assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory
Third, the award of temporary custody, as the term implies, is provisional and
subject to change as circumstances may warrant. In this connection, there is no need for
a lengthy discussion of the alleged finality of the April 3, 2002 RTC Order granting Crisanto
temporary custody of his son. For that matter, even the award of child custody after a
judgment on a marriage annulment is not permanent; it may be reexamined and adjusted
if and when the parent who was given custody becomes unfit.[29]
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably results in separation,
the bitterest tussle is often over the custody of their children. The Court is now tasked to
settle the opposing claims of the parents for custody pendente lite of their child who is
less than seven years old.[30] On the one hand, the mother insists that, based on Article
213 of the Family Code, her minor child cannot be separated from her. On the other hand,
the father argues that she is unfit to take care of their son; hence, for compelling reasons,
he must be awarded custody of the child.
Article 213 of the Family Code[31] provides:
ART. 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.
This Court has held that when the parents are separated, legally or otherwise, the
foregoing provision governs the custody of their child.[32] Article 213 takes its bearing from
Article 363 of the Civil Code, which reads:
Art. 363. In all questions on the care, custody, education and property of children, the
latters welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.(Italics
supplied)
The general rule that children under seven years of age shall not be separated from
their mother finds its raison detre in the basic need of minor children for their mothers
loving care.[33] In explaining the rationale for Article 363 of the Civil Code, the Code
Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a mother has seen
her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for
compelling reasons for the good of the child: those cases must indeed be rare, if the
mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation. (Report of the Code Commission,
p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603).[34] Article 17 of the same Code is even more explicit in
providing for the childs custody under various circumstances, specifically in case the
parents are separated. It clearly mandates that no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so. The
provision is reproduced in its entirety as follows:
Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the fathers decision shall prevail unless there is a
judicial order to the contrary.
In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the
surviving parents remarriage, the court for justifiable reasons, appoints another person
as guardian.
In case of separation of his parents, no child under five years of age shall be separated
from his mother, unless the court finds compelling reasons to do so. (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It
is unmistakable from the language of these provisions that Article 211 [35] was derived
from the first sentence of the aforequoted Article 17; Article 212, [36] from the second
sentence; and Article 213,[37] save for a few additions, from the third sentence. It should
be noted that the Family Code has reverted to the Civil Code provision mandating that a
child below seven years should not be separated from the mother.[38]
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,[39] the Court held that the use of shall in Article 363 of
the Civil Code and the observations made by the Code Commission underscore the
mandatory character of the word.[40] Holding in that case that it was a mistake to deprive
the mother of custody of her two children, both then below the age of seven, the Court
stressed:
[Article 363] prohibits in no uncertain terms the separation of a mother and her child
below seven years, unless such a separation is grounded upon compelling reasons as
determined by a court.[41]
In like manner, the word shall in Article 213 of the Family Code and Section 6 [42] of
Rule 99 of the Rules of Court has been held to connote a mandatory character.[43]Article
213 and Rule 99 similarly contemplate a situation in which the parents of the minor are
married to each other, but are separated by virtue of either a decree of legal separation
or a de facto separation.[44] In the present case, the parents are living separately as a
matter of fact.
The Best Interest of the Child
a Primary Consideration
The Convention on the Rights of the Child provides that [i]n all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the child shall be
a primary consideration.[45]
The principle of best interest of the child pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in conflict with the law, and child
custody. In these cases, it has long been recognized that in choosing the parent to whom
custody is given, the welfare of the minors should always be the paramount
consideration.[46] Courts are mandated to take into account all relevant circumstances
that would have a bearing on the childrens well-being and development. Aside from the
material resources and the moral and social situations of each parent, other factors may
also be considered to ascertain which one has the capability to attend to the physical,
educational, social and moral welfare of the children.[47] Among these factors are the
previous care and devotion shown by each of the parents; their religious background,
moral uprightness, home environment and time availability; as well as the childrens
emotional and educational needs
Tender-Age
Presumption
As pointed out earlier, there is express statutory recognition that, as a general rule,
a mother is to be preferred in awarding custody of children under the age of seven. The
caveat in Article 213 of the Family Code cannot be ignored, except when the court finds
cause to order otherwise.[48]
The so-called tender-age presumption under Article 213 of the Family Code may be
overcome only by compelling evidence of the mothers unfitness. The mother has been
declared unsuitable to have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity or affliction with a communicable
disease.[49]
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling
reason to deprive Joycelyn of custody. It has indeed been held that under certain
circumstances, the mothers immoral conduct may constitute a compelling reason to
deprive her of custody.[50]
But sexual preference or moral laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to
her husband would render her unfit to have custody of her minor child.[51] To deprive the
wife of custody, the husband must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have distracted the offending spouse from
exercising proper parental care.[52]
To this effect did the Court rule in Unson III v. Navarro,[53] wherein the mother was
openly living with her brother-in-law, the childs uncle. Under that circumstance, the Court
deemed it in the nine-year-old childs best interest to free her from the obviously
unwholesome, not to say immoral influence, that the situation in which the mother ha[d]
placed herself might create in [the childs] moral and social outlook.[54]
In Espiritu v. CA,[55] the Court took into account psychological and case study reports
on the child, whose feelings of insecurity and anxiety had been traced to strong conflicts
with the mother. To the psychologist the child revealed, among other things, that the
latter was disturbed upon seeing her mother hugging and kissing a bad man who lived in
their house and worked for her father. The Court held that the illicit or immoral activities
of the mother had already caused the child emotional disturbances, personality conflicts,
and exposure to conflicting moral values x x x.
Based on the above jurisprudence, it is therefore not enough for Crisanto to show
merely that Joycelyn was a lesbian. He must also demonstrate that she carried on her
purported relationship with a person of the same sex in the presence of their son or under
circumstances not conducive to the childs proper moral development. Such a fact has not
been shown here. There is no evidence that the son was exposed to the mothers alleged
sexual proclivities or that his proper moral and psychological development suffered as a
result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort,
ruled in her May 17, 2002 Order that she had found the reason stated by [Crisanto] not
to be compelling[56] as to suffice as a ground for separating the child from his mother. The
judge made this conclusion after personally observing the two of them, both in the
courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy
and to observe him firsthand. This assessment, based on her unique opportunity to
witness the childs behavior in the presence of each parent, should carry more weight than
a mere reliance on the records. All told, no compelling reason has been adduced to
wrench the child from the mothers custody.
No Grant of Habeas Corpus
and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep her minor son in her custody,
the writ of habeas corpus and the preliminary mandatory injunction prayed for by
Crisanto have no leg to stand on. A writ of habeas corpus may be issued only when the
rightful custody of any person is withheld from the person entitled thereto,[57] a situation
that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot
be granted, because Crisantos right to custody has not been proven to be clear and
unmistakable.[58] Unlike an ordinary preliminary injunction, the writ of preliminary
mandatory injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the maintenance of the status
quo.[59] Besides, such an injunction would serve no purpose, now that the case has been
decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the
Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court
Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against Petitioner
Crisanto Rafaelito Gualberto V.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.
G.R. No. L-64982 October 23, 1984
ALEJANDRO B. HONTIVEROS, JR., petitioner,
vs.
THE INTERMEDIATE APPELLATE COURT, Third Special Cases Division, HON. WILFREDO
G. CAINGLET in his capacity as Presiding Judge of Branch CLVIII, RTC and BRENDA M.
HERNANDO, respondents.
MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the respondent Intermediate
Appellate Court (hereinafter referred to as the respondent Court) dated August 5, 1983,
which affirmed the order of respodent Judge Cainglet (hereinafter referred to as the
respondent Judge) dated May 30, 1983. The dispositive portion of the respondent
court's decision reads as follows: t.hqw
WHEREFORE, the writ prayed for is denied and the petition dismissed
for lack of merit. Accordingly, the restraining order issued by this
Court earlier is hereby lifted, without pronouncement as to costs (p.
97, rec.).
The facts are as follows:
Petitioner Alejandro Hontiveros, Jr. and private respondent Brenda M. Hernando are the
father and mother of an acknowledged natural child born on November 27, 1981 and
given the name Margaux H. Hontiveros.
For the period from November 1981 to June 1982, the child had been under the care
and custody of the mother. The father, petitioner herein, used to take the child out
during Saturdays and return the child to private respondent's residence on Saturday
evenings (p. 29, rec.).
On June 21, 1982, Alejandro Hontiveros, Jr. passed by the house of Brenda Hernando to
take the child to their house for a visit, with the agreement that she will be returned by
nightfall (p. 29, rec.). However, the child was never returned to the mother.
To recover the custody of her child, private respondent filed on August 24, 1982 a
petition for habeas corpus in the then Court of First Instance of Rizal, Metro Manila,
entitled "In the Matter of the Custody of the Minor Child Margaux H. Hontiveros,
Brenda M. Hernando, Petitioner, versus Alejandro Hontiveros, Jr. and Alejandro
Hontiveros, Sr., respondents", which petition was docketed as Special Proceedings No.
9784 of said court and assigned to Branch XIX thereof (p. 8, rec.).
On August 26, 1982, the petitioner filed a petition for custody of minor Margaux H.
Hontiveros with the then Court of First Instance of Rizal, docketed as Special
Proceedings No. 9788 with Branch XXIII of the said court. Private respondent filed a
motion to dismiss the petition in Special Proceedings No. 9788 on the ground of litis
pendency, citing the pendency of Special Proceedings No. 9784. The motion to dismiss
was denied. Subsequently, however, petitioner Alejandro Hontiveros, Jr. abandoned the
prosecution of Special Proceedings No. 9788, for which reason the Hon. Judge Rizalina
Bonifacio Vera dismissed said petition on October 26, 1983.
On September 9, 1982, a hearing was conducted by the Hon. Judge Santiago Raada in
connection with Special Proceedings No. 9784. The parties agreed that the minor child
Margaux shall be under the custody of the petitioner for seven (7) days every other
week (p. 171, rec.). Accordingly, Judge Rafiada issued the following order: t.hqw
As preliminarily agreed upon by petitioner and respondent Alejandro Hontiveros, Jr., the
Court hereby orders the minor child Margaux H. Hontiveros to be put under the custody
of the petitioner, with the understanding that respondent Alejandro Hontiveros, Jr. will
be allowed to take said minor child into his custody every other week for a period of
seven (7) days with the obligation of taking said minor child from the residence of
petitioner every other Friday, at 9:00 A.M., and return said child on or before the next
Friday morning at 9:00 A.M. This arrangement is effective immediately, with the
condition that the custody of said child is now immediately given to petitioner and
respondent Alejandro Hontiveros, Jr. will be allowed to pick up said child on Friday, 17
September 1982, at about 9:00 A. M. (P. 37, rec.).
On May 24, 1983, the petitioner filed an urgent ex parte petition for issuance of a writ of
preliminary injunction with the Regional Trial Court of the National Capital Judicial
Regions Branch CLVIII, to which the Court the aforesaid case was reassigned following
the reorganization of the inferior courts under BP 129 (p. 38, rec.). The object of the
petition for preliminary injunction is to prevent the private respondent from bringing
the minor child outside the country, specifically the United States of American where
she was allegedly bound for.
The petition was set for hearing on May 30, 1983. On said date, the counsel for private
respondent moved for the withdrawal of the petition for habeas corpus on the ground
that said petition has become moot and academic upon the production of the body of
Margaux Hontiveros before Judge Rafiada and in view of the order of September 9,
1982. Respondent Judge Wilfredo Cainglet (presiding Judge of the Regional Trial Court
of the National Capital Judicial Region, Branch CLVIII) granted the motion for the
withdrawal of the petition for habeas corpus. Since the petition for the issuance of a
writ of preliminary injunction is but an ancillary action, the same was denied by the
respondent Judge in his order dated May 30, 1983. Said order states: t.hqw
xxx xxx xxx
As preliminarily agreed upon by petitioner and respondent Alejandro Hontiveros, Jr., the
Court hereby orders the minor child Margaux H. Hontiveros to be put under the custody
of the petitioner, with the understanding that respondents Alejandro Hontiveros, Jr. will
be allowed to take said minor child into his custody every other week for a period of
seven (7) days with the obligation of taking said minor child from the residence of
petitioner every other Friday, at 9:00 A.M., and return said child on or before the next
Friday morning at 9:00 A.M. This arrangement is effective immediately, with the
condition that the custody of said child is now immediately given to petitioner and
respondent Alejandro Hontiveros, Jr. will be allowed to pick up said child on Friday, 17
September 1982, at about 9:00 A.M.
SO ORDERED.1wph1.t
When this petition was called for hearing today, petitioner's counsel, Atty. Wilfredo
Chato moved for the withdrawal this petition on the ground that the same has now
become moot and academic in view of the Order of this Court aforecited, to which
motion for withdrawal residents' counsel, Atty. Yolanda Q. Javellana interposed her
objection. The said counsel for the respondents in open Court today, admitted that the
respondents have not filed a counterclaim anent the herein petition and further
admitted that there is a present case involving the same parties and same subject
matter filed with the Pasig Court of First Instance (now Regional Trial Court) and pending
before Branch 162, presided by the Executive Judge, the Hon. Rizalina Bonifacio Vera
since August 26, 1982.
The Court believes that the matter of withdrawing a case is a prerogative of plaintiff or
petitioner and ordinarily could not be validly objected to by the defendant or
respondent as in the present case.
IN VIEW OF THE FOREGOING, the Court, finding the petitioner's motion to withdraw the
herein petition to be justified grants the same and hereby orders the WITHDRAWAL of
the present petition for Habeas Corpus, subject to the mandate of this Court in its Order
dated September 9, 1982, predicated upon the agreement of the herein petitioner and
respondents.
Anent the respondents' motion/petition for the issuance of a Writ of preliminary
injunction praying for the immediate issuance of a restraining Order against the herein
petitioner, the same being merely ancillar action and now moot and academic there
being no principal or main action or petition upon which respondents' motion/petition
may be predicated upon for the issuance of the said restraining Order, upon motion by
petitioner's counsel with objection of respondents' counsel the same is hereby DENIED
for lack of factual and legal justification.
xxx xxx xxx
(pp. 48-49, rec.,emphasis supplied).
Petitioner moved for reconsideration which was likewise denied for lack of factual and
legal justification (p. 50, rec.)
On June 3, 1983, the petitioner filed a petition for certiorari with application for
preliminary injunction with the Intermediate Appellate Court questioning the order of
respondent Judge dated May 30, 1983 and the denial of the motion for reconsideration.
The respondent Court dismissed the petition for lack of merit in its decision dated
August 5, 1983. The petitioner moved for reconsideration of the adverse ruling but the
same was affirmed by respondent Court in its resolution dated August 17, 1983.
Hence, this petition.
The following issues are presented:
1. Whether or not the order of respondent Judge dated May 30,1983 was issued with
grave abuse of discretion, and
2. Whether or not petitioner is entitled to the custody of his minor child Margaux H.
Hontiveros.
I capricious and arbitrary exercise of judgment as is equivalent, in the eyes of the law, to
The records reveal that the original action instituted by private respondent in the then
Court of First Instance was a petition for a writ of habeas corpus to recover custody of
her acknowledged natural child Margaux without depriving the father of his visitorial
rights. The petition was filed against the father who allegedly took the child from her
mother's home and kept her indefinitely without the mother's consent.
At the hearing conducted on September 9, 1982, the minor child was "produced before
the Court and a settlement was reached upon agreement of the parties. Thus, the order
of Judge Raada was issued. Even if the order was termed "preliminary ", WE take note
of the fact that the private respondent's prayer in her pleading had been satisfied for
her evident purpose in filing the petition for habeas corpus was to get back the custody
of her child.
Because of such settlement and considering that as noted in the questioned order of
May 30, 1983, the petitioner's counsel admitted that there was a pending case (Special
Proceedings No. 9788) involving the same parties and same subject matter filed with
another branch of the same court and the petitioner herein did not file a counterclaim,
the respondent Judge allowed the withdrawal of the case for habeas corpus pending
before him (pp. 48-49, rec.).
Section 2, Rule 17 of the Revised Rules of Court provides for the dismissal of an action
by order of the court at plaintiff's instance (private respondent herein) upon such terms
and conditions as the court deems proper. WE agree with the respondent Court that
considering the circumstances obtaining in the case at bar, as earlier noted, and
considering further that no real injury would result if the urgent ex parte petition could
not be acted upon since it could be threshed out in the coordinate branch of the Pasig
Regional Trial Court, the dismissed of the petition forhabeas corpus is warranted. In the
case of Duque vs. Vinarao (63 SCRA 206), WE held that a petition for habeas corpus can
be dismissed upon voluntary withdrawal of the petitioner and certification of the Judge
Advocate General.
WE agree with the respondent Judge that the petition for habeas corpus has been
rendered moot and academic with the issuance of the order dated September 9, 1982,
which was predicated upon the agreement of the parties. In Pestrano vs. Corvista (81
Phil. 53), WE held that where the subject person had already been released from the
custody complained of, the petition for habeas corpus then still pending was considered
already moot and academic and should be dismissed. In the case at bar, the minor child
Margaux H. Hontiveros was in fact produced in court. By virtue of the order of Judge
Ranada, she was released to the custody of her mother with the father having the right
to take her in his custody every other week.
WE believe that the respondent Judge merely exercised his sound discretion in allowing
the withdrawal of the case in his branch. "Grave abuse of discretion" means such
lack of jurisdiction (Vda. de Bacaling vs. Laguda 54 SCRA 243). In the case at bar, there
was no abuse of discretion by the respondent Judge. He acted within the ambit of
judicial discretion allotted to Judges of inferior courts, to wit: t.hqw
The court may, subject to the requirement of due process, give all such directions and
orders as it may deem necessary or expedient in the determination of the dispute
before it. It may refrain from hearing the dispute or part thereof, or dismiss any matter
or part of any matter, where further proceedings are not necessary or desirable.
Certainly, it may also defer the hearing of any motion or hear one motion in preference
to others, when its judgment such is necessary ... The discretion granted by law is not
interfered with unless it is gravely abused (Maritime Company of the Philippines, et al.
vs. Paredes, et al., 19 SCRA 569, 580).
Petitioner is of the theory that he was deprived of due process because the respondent
Judge dismissed his urgent ex parte petition for preliminary injunction without hearing.
WE cannot sustain the stand of the petitioner.
It should be borne in mind that petitioner Med a petition for custody of minor Margaux
H. Hontiveros with the then Court of First Instance of Rizal docketed as Special
Proceedings No. 9788. The respondent Judge knew of the existence of Special
Proceedings No. 9788 because this fact was admitted by the counsel of the petitioner
himself. All that the petitioner must do then is to file the petition for preliminary
injunction in Branch XXIII of the then Court of First Instance of Rizal where Special
Proceedings No. 9788 is assigned. The issue as to whether he can be granted a
preliminary injunction could have properly been ventilated below. Unfortunately,
petitioner chose to appeal by way of certiorari, a remedy which WE cannot grant
because the respondent Judge acted within the parameters of judicial discretion.
What is more, petitioner himself did not pursue his action for custody of the minor
Margaux H. Hontiveros. Worse, he abandoned the case and Special Proceedings No.
9788 was dismissed by Judge Vera on October 26, 1983 for lack of interest on the part of
the petitioner to prosecute (p. 208, rec.). If at all petitioner can only blame himself if he
feels that he was deprived of due process.
II
The second issue is whether or not petitioner is entitled to the custody of the minor
child Margaux H. Hontiveros. Once more, WE are asked to arbitrate between the rights
and duties of parents and children.
Article 363 of the Civil Code provides: t.hqw
In all questions on the care, custody, education and property of
children, the latter's welfare shall be paramount. No matter shall be
separated from her child under seven years of age, unless the court
finds compelling reasons for such measure.
The Code Commission observed that the rule in Article 363 of the Civil Code is necessary
"in order to avoid many a tragedy when a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is deprived of her child of
tender age (Report of the Code Commission, p. 12).
Finding the above rationale beyond question, Presidential Decree No. 603 (Child and
Youth Welfare Code) provides the following:
Article 17 ...
In case of separation of his parents, no child under five years of age shall be separated
from his mother, unless the court finds compelling reasons to do so (P.D. 603, dated
December 10, 1974, 70 O.G. 10774).
While the petitioner would have US believe in his reply that the private respondent is
unfit to take care of his child, it is too late in the day to do so because under Rule 45 of
the Rules of Court, only questions of law may be raised in this Tribunal What the
petitioner should have done is to bring out the questions of fact in Special Proceedings
Nos. 9788. It is just too bad that the case for custody was dismissed for lack of interest
on the part of the petitioner.
Clearly, the private respondent has a clear legal right under Article 17 of P.D. 603 to the
custody of her minor child, there being no compelling reason to the contrary.
WHEREFORE, THE PETITION IS HEREBY DENIED. WITH COSTS AGAINST PETITIONER.
SO ORDERED.1wph1.t
Aquino, Guerrero, Abad Santos and Cuevas, JJ., concur.
Concepcion, Jr. and Escolin, JJ., took no part.
G.R. No. L-52242 November 17, 1980
MIGUEL R. UNSON III, petitioner,
vs.
HON. PEDRO C. NAVARRO AND EDITA N. ARANETA, respondents.
BARREDO, J.:
Petition for certiorari to have the order of respondent judge of December 28, 1979
ordering petitioner to produce the child, Maria Teresa Unson, his daughter barely eight
years of age, with private respondent Edita N. Araneta and return her to the custody of
the later, further obliging petitioner to "continue his support of said daughter by
providing for her education and medical needs," allegedly issued without a "hearing"
and the reception of testimony in violation of Section 6 of Rule 99.
Petitioner and private respondent were married on April 19, 1971 1 and out of that
marriage the child in question, Teresa, was born on December 1, 1971. However, as
stated in a decision rendered on August 23, 1974 in Civil Case No. 7716 of respondent
judge himself, on July 13, 1974 they executed an agreement for the separation of their
properties and to live separately, as they have in fact been living separately since June
1972. The agreement was approved by the Court. The parties are agreed that no specific
provision was contained in said agreement about the custody of the child because the
husband and wife would have their own private arrangement in that respect. Thus,
according to the affidavit of petitioner attached to his supplement to petition,
submitted in compliance with the directive of this Court during the hearing of this case,
he affirms that:
xxx xxx xxx
(8) That when Maria Teresa started pre-school in 1976 at the Early Learning Center in
San Lorenzo, very near petitioner's residence, and later, when she started school at
Assumption College, Maria Teresa would stay with petitioner during school days and
spend weekends with her mother, but there were times when her mother would not
even bother to pick her up during non-school days;
(9) That during the early part of 1978 petitioner personally acquired knowledge that his
wife Edita Araneta has been living with her brother-in-law Agustin F. Reyes, in an
apartment at C. Palma St., Makati, Metro Mla. and so petitioner tightened his custody
over his daughter, especially after:
a. he found out that Agustin F. Reyes was confined at the Makati Medical Center from
October 13 up to December 3, 1977 for "Manic Depressive" disorder, under the care of
Dr. Baltazar Reyes;
b. he found out that his wife Edita Araneta delivered a child fathered by Agustin F. Reyes
on September 24, 1978, (Please see Birth Certificate attached hereto as Annex "A-1");
c. he found out that Agustin F. Reyes had been confined again for the same ailment at
the Makati Medical Center from June 27 up to August 29, 1978 under the care of the
same doctor .
(10) That on May 21, 1980 Edita Araneta delivered another child fathered by Agustin F.
Reyes. (Please see Birth Certificate attached hereto as Annex "A-2");
(11) That aside from the foregoing circumstances, the following militate against custody
of Maria Teresa in favor of Edita Araneta:
a. Agustin F. Reyes is the child's godfather/baptismal sponsor;
b. Agustin F. Reyes and Edita Araneta have left the Roman Catholic Church and have
embraced a protestant sect (Please see Annex "A-2" hereof, which lists the occupation
of Agustin F. Reyes as a seminarian);
(12) That Maria Teresa is almost nine (9) years old, born and reared under the Roman
Catholic faith, impressionable, and should not be exposed to an environment alien to
the Catholic way of life, which is the upbringing and training petitioner, as her father is
committed to;
(13) That petitioner is executing this affidavit for all legal purposes. (Pp. 81-82 of Record)
Upon the other hand, private respondent affirms in her affidavit Annex "A"
aforementioned that:
xxx xxx xxx
6. Since the birth of Maria Teresa, she has always lived with affiant, her mother, who
has reared and brought up the child to the best of her ability. Affiant has not in any way
spoken ill of nor turned the child against her father, herein petitioner;
7. In fact, it was affiant who was always insistent that petitioner have custody of Maria
Teresa every week end and half of summer and Christmas vacation so that the child
could establish a healthy and viable relationship with her father, herein petitioner;
8. This was especially so when affiant noticed that petitioner's parents showed more
interest in the child than petitioner; since it was petitioner's parents who would more
often pick up Maria Teresa and bring her back to and from affiant's home;
9. This fact was even noticed by the child; thus affiant immediately requested petitioner
to spend more time with Maria Teresa;
10. From 1972 to 1978, affiant had always exercised full custody of Maria Teresa. It was
affiant who voluntarily gave custody of the child to petitioner on weekends and half of
the summer and Christmas vacations. In view of this amicable arrangement, no specific
terms were agreed and stipulated upon by affiant and petitioner regarding custody of
the child in their petition for separation of property before the lower court;
11. From 1972 to September, 1979, affiant and petitioner have always had a cordial and
amicable relationship. Even from 1973 when affiant started living with her brother-in-
law, Agustin F. Reyes at San Lorenzo, Makati, affiant and petitioner retained a cordial
relationship. Petitioner, since 1973, always knew about affiant's relationship with
Agustin F. Reyes. In fact, petitioner would visit Maria Teresa at affiant's home. Petitioner
was always welcome to pick up Maria Teresa at any time.
12. When petitioner left for Australia in 1974 for a period of one year, petitioner left
Maria Teresa to stay with affiant at San Lorenzo. During this time, Maria Teresa was
always allowed to visit with and to be picked up at any time by petitioner's parents;
13. Petitioner, his family, affiants family (Mr. and Mrs. Teodoro Araneta), affiant's
relatives and friends, since 1973, have long known of and accepted the circumstances
involving private respondent and Agustin F. Reyes;
14. Affiant admits that her present circumstances at first impression might seem socially
if not morally unacceptable; but in reality this is not so. Maria Teresa has been reared
and brought up in an atmosphere of Christian love, affection and honesty to the import
of the situation. Further, the quality and capacity of affiant of being a good mother has
always remained; (Pars. 6 to 14 of Annex "A" of Record)
It is axiomatic in Our jurisprudence that in controversies regarding the custody of minors
the sole and foremost consideration is the physical, education, social and moral welfare
of the child concerned, taking into account the respective resources and social and
moral situations of the contending parents. Never has this Court diverted from that
criterion.
With this premise in view, the Court finds no difficulty in this case in seeing that it is in
the best interest of the child Teresa to be freed from the obviously unwholesome, not to
say immoral influence, that the situation in which private respondent has placed herself,
as admitted by her, might create in the moral and social outlook of Teresa who is now in
her formative and most impressionable stage in her life. The fact, that petitioner might
have been tolerant about her stay with her mother in the past when she was still too
young to distinguish between right and wrong and have her own correct impressions or
notions about the unusual and peculiar relationship of her mother with her own uncle-
in-law, the husband of her sister's mother, is hardly of any consequence now that she
has reached a perilous stage in her life. No respectable father, properly concerned with
the moral well-being of his child, specially a girl, can be expected to have a different
attitude than petitioner's in this case. Under the circumstances thus shown in the
record, the Court finds no alternative than to grant private respondent no more than
visitorial rights over the child in question. Anyway, decisions even of this Supreme Court
on the custody of minor children are always open to adjustment as the circumstances
relevant to the matter may demand in the light of the inflexible criterion We have
mentioned above. We deem it a grave abuse of discretion on the part of respondent
judge to have acted precipitably in issuing his order of December 28, 1979 here in
question.
As to the issue of jurisdiction, that is, whether or not, after the decision on separation of
properties had become final, the matter of the custody of the child should be the
subject of a separate proceeding under Rule 99. We are inclined to agree with
respondents that, considering that in the decision on the separation of properties
mention is made of support for the child, to avoid multiplicity of proceedings, and since
under Sec- tion 6 of Rule 99, the matter of the custody of children of separated spouses
may be brought before the Court of First Instance by petition or as an incident to any
other proceeding, the respondent court had jurisdiction to decide the question of
custody here. And as regards the petitioner's claim of denial of hearing and due process
before the issuance by respondent judge of his order of December 28, 1979, We find
that-petitioner was given sufficient time and opportunity to be heard, as, in fact, he filed
his written opposition. With the facts in this case practically uncontroverted, We do not
see the need for the calling of witnesses and the hearing of testimony in open court.
WHEREFORE, the order of respondent judge is hereby set aside, the restraining order
heretofore issued is made permanent and the parties are ordered to submit to this
Court within fifteen (15) days from notice hereof their own agreement as to the
visitorial rights of private respondent, otherwise, the Court will take it upon itself to fix
the terms and conditions thereof. No costs.
Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur
G.R. No. 156343 October 18, 2004
JOEY D. BRIONES, petitioner,
vs.
MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents.
DECISION
PANGANIBAN, J.:
An illegitimate child is under the sole parental authority of the mother. In the exercise of
that authority, she is entitled to keep the child in her company. The Court will not
deprive her of custody, absent any imperative cause showing her unfitness to exercise
such authority and care.
The Case
The Petition for Review1 before the Court seeks to reverse and set aside the August 28,
2002 Decision2 and the December 11, 2002 Resolution3 of the Court of Appeals in CA-GR
SP No. 69400.4 The dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have
custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Once
the said child is beyond ten (10) years of age, the Court allows him to choose which
parent he prefers to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil
Procedure, as amended. The petitioner, Joey D. Briones, shall help support the child,
shall have visitorial rights at least once a week, and may take the child out upon the
written consent of the mother.
"Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to
be without merit, the same is DENIED."5
The challenged Resolution denied reconsideration.
The Facts
The CA summarized the antecedents of the case in this wise:
"On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against
respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of
his minor child Michael Kevin Pineda.
"On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel,
the mother of the minor, as one of the respondents.
"A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the
respondents to produce before this Court the living body of the minor Michael Kevin
Pineda on March 21, 2002 at 2:00 oclock in the afternoon.
"The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with
respondent Loreta P. Miguel. He was born in Japan on September 17, 1996 as evidenced
by his Birth Certificate. The respondent Loreta P. Miguel is now married to a Japanese
national and is presently residing in Japan.
"The petitioner further alleges that on November 4, 1998 he caused the minor child to
be brought to the Philippines so that he could take care of him and send him to school.
In the school year 2000-2001, the petitioner enrolled him at the nursery school of
Blessed Angels L.A. School, Inc. in Caloocan City, where he finished the nursery course.
"According to the petitioner, his parents, who are both retired and receiving monthly
pensions, assisted him in taking care of the child.
"On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the
house of the petitioner in Caloocan City on the pretext that they were visiting the minor
child and requested that they be allowed to bring the said child for recreation at the SM
Department store. They promised him that they will bring him back in the afternoon, to
which the petitioner agreed. However, the respondents did not bring him back as
promised by them.
"The petitioner went several times to respondent Maricel P. Miguel at Tanza,
Tuguegarao City but he was informed that the child is with the latters mother at Batal
Heights, Santiago City. When he went there, respondent Francisca P. Miguel told him
that Michael Kevin Pineda is with her daughter at Tuguegarao City.
"He sought the assistance of the police and the Department of Social Welfare to locate
his son and to bring him back to him, but all his efforts were futile.
"Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial
Court of Caloocan City which was docketed as SPC No. 2711. However, the said case was
withdrawn ex-parte.
"The petitioner prays that the custody of his son Michael Kevin Pineda be given to him
as his biological father and [as] he has demonstrated his capability to support and
educate him.
"On May 6, 2002, the respondents filed their Comment, in compliance with the May 2,
2002 Resolution of this Court.
"In their Comment, the respondent Loreta P. Miguel denies the allegation of the
petitioner that he was the one who brought their child to the Philippines and stated that
she was the one who brought him here pursuant to their agreement.
"Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents
Maricel P. Miguel and Francisca P. Miguel were the ones who took the child from the
petitioner or the latters parents. She averred that she was the one who took Michael
Kevin Pineda from the petitioner when she returned to the Philippines and that the
latter readily agreed and consented.
"Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner
was deported from Japan under the assumed name of Renato Juanzon when he was
found to have violated or committed an infraction of the laws of Japan. She further
stated that since the time the petitioner arrived in the Philippines, he has not been
gainfully employed. The custody of the child, according to respondent Loreta P. Miguel
was entrusted to petitioners parents while they were both working in Japan. She added
that even before the custody of the child was given to the petitioners parents, she has
already been living separately from the petitioner in Japan because the latter was
allegedly maintaining an illicit affair with another woman until his deportation.
"She likewise stated in her Comment that her marriage to a Japanese national is for the
purpose of availing of the privileges of staying temporarily in Japan to pursue her work
so she could be able to send money regularly to her son in the Philippines. She further
stated that she has no intention of staying permanently in Japan as she has been
returning to the Philippines every six (6) months or as often as she could.
"Respondent Loreta P. Miguel prays that the custody of her minor child be given to her
and invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the Civil Code
of the Philippines."
Ruling of the Court of Appeals
Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of
Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While
acknowledging that petitioner truly loved and cared for his son and considering the
trouble and expense he had spent in instituting the legal action for custody, it
nevertheless found no compelling reason to separate the minor from his mother.
Petitioner, however, was granted visitorial rights.
Hence, this Petition.6
Issue
In his Memorandum, petitioner formulated the "ultimate" issue as follows: "x x x
[w]hether or not [he], as the natural father, may be denied the custody and parental
care of his own child in the absence of the mother who is away."7
The Courts Ruling
The Petition has no merit. However, the assailed Decision should be modified in regard
to its erroneous application of Section 6 of Rule 99 of the Rules of Court.
Sole Issue
Who Should Have Custody of the Child?
Petitioner concedes that Respondent Loreta has preferential right over their minor
child. He insists, however, that custody should be awarded to him whenever she leaves
for Japan and during the period that she stays there. In other words, he wants joint
custody over the minor, such that the mother would have custody when she is in the
country. But when she is abroad, he -- as the biological father -- should have custody.
According to petitioner, Loreta is not always in the country. When she is abroad, she
cannot take care of their child. The undeniable fact, he adds, is that she lives most of the
time in Japan, as evidenced by her Special Power of Attorney dated May 28,
2001,8 granting to her sister temporary custody over the minor.
At present, however, the child is already with his mother in Japan, where he is
studying,9 thus rendering petitioners argument moot. While the Petition for Habeas
Corpus was pending before the CA, petitioner filed on July 30, 2002, an "Urgent Motion
for a Hold Departure Order,"10 alleging therein that respondents were preparing the
travel papers of the minor so the child could join his mother and her Japanese husband.
The CA denied the Motion for lack of merit.11
Having been born outside a valid marriage, the minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176 of the Family Code of the
Philippines12 explicitly provides that "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." This is the rule regardless of whether the father admits
paternity.13
Previously, under the provisions of the Civil Code, illegitimate children were generally
classified into two groups: (1) natural, whether actual or by legal fiction; and (2)
spurious, whether incestuous, adulterous or illicit.14 A natural child is one born outside a
lawful wedlock of parents who, at the time of conception of the child, were not
disqualified by any impediment to marry each other.15 On the other hand, a spurious
child is one born of parents who, at the time of conception, were disqualified to marry
each other on account of certain legal impediments. 16
Parental authority over recognized natural children who were under the age of majority
was vested in the father or the mother recognizing them. 17 If both acknowledge the
child, authority was to be exercised by the one to whom it was awarded by the courts; if
it was awarded to both, the rule as to legitimate children applied. In other words, in the
latter case, parental authority resided jointly in the father and the mother.18
The fine distinctions among the various types of illegitimate children have been
eliminated in the Family Code.19Now, there are only two classes of children -- legitimate
(and those who, like the legally adopted, have the rights of legitimate children) and
illegitimate. All children conceived and born outside a valid marriage are illegitimate,
unless the law itself gives them legitimate status.20
Article 54 of the Code provides these exceptions: "Children conceived or born before
the judgment of annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate. Children conceived or born
of the subsequent marriage under Article 53 shall likewise be legitimate."
Under Article 176 of the Family Code, all illegitimate children are generally placed under
one category, without any distinction between natural and spurious.21 The concept of
"natural child" is important only for purposes of legitimation.22 Without the subsequent
marriage, a natural child remains an illegitimate child.
Obviously, Michael is a natural ("illegitimate," under the Family Code) child, as there is
nothing in the records showing that his parents were suffering from a legal impediment
to marry at the time of his birth. Both acknowledge that Michael is their son. As earlier
explained and pursuant to Article 176, parental authority over him resides in his mother,
Respondent Loreta, notwithstanding his fathers recognition of him.
David v. Court of Appeals23 held that the recognition of an illegitimate child by the father
could be a ground for ordering the latter to give support to, but not custody of, the
child. The law explicitly confers to the mother sole parental authority over an
illegitimate child; it follows that only if she defaults can the father assume custody and
authority over the minor. Of course, the putative father may adopt his own illegitimate
child;24 in such a case, the child shall be considered a legitimate child of the adoptive
parent.25
There is thus no question that Respondent Loreta, being the mother of and having sole
parental authority over the minor, is entitled to have custody of him.26 She has the right
to keep him in her company.27 She cannot be deprived of that right,28 and she may not
even renounce or transfer it "except in the cases authorized by law." 29
Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child
under seven years of age shall be separated from the mother, except when the court
finds cause to order otherwise.
Only the most compelling of reasons, such as the mothers unfitness to exercise sole
parental authority, shall justify her deprivation of parental authority and the award of
custody to someone else.30 In the past, the following grounds have been considered
ample justification to deprive a mother of custody and parental authority: neglect or
abandonment,31 unemployment, immorality,32 habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable disease.
Bearing in mind the welfare and the best interest of the minor as the controlling
factor,33 we hold that the CA did not err in awarding care, custody, and control of the
child to Respondent Loreta. There is no showing at all that she is unfit to take charge of
him.
We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of
Appeals,34 the Court sustained the visitorial right of an illegitimate father over his
children in view of the constitutionally protected inherent and natural right of parents
over their children.35 Even when the parents are estranged and their affection for each
other is lost, their attachment to and feeling for their offspring remain unchanged.
Neither the law nor the courts allow this affinity to suffer, absent any real, grave or
imminent threat to the well-being of the child.
However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This
provision contemplates a situation in which the parents of the minor are married to
each other, but are separated either by virtue of a decree of legal separation or because
they are living separately de facto. In the present case, it has been established that
petitioner and Respondent Loreta were never married. Hence, that portion of the CA
Decision allowing the child to choose which parent to live with is deleted, but without
disregarding the obligation of petitioner to support the child.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with
the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years
of age, to choose which parent to live with is DELETEDfor lack of legal basis. Costs
against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio Morales*, JJ., concur.
G.R. No. 115640 March 15, 1995
REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.
MELO, J.:
This case concerns a seemingly void marriage and a relationship which went sour. The
innocent victims are two children horn out of the same union. Upon this Court now falls
the not too welcome task of deciding the issue of who, between the father and mother,
is more suitable and better qualified in helping the children to grow into responsible,
well-adjusted, and happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in
1976 in Iligan City where Reynaldo was employed by the National Steel Corporation and
Teresita was employed as a nurse in a local hospital. In 1977, Teresita left for Los
Angeles, California to work as a nurse. She was able to acquire immigrant status
sometime later. In 1984, Reynaldo was sent by his employer, the National Steel
Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita
then began to maintain a common law relationship of husband and wife. On August 16,
1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were
on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their
return to the United States, their second child, a son, this time, and given the name
Reginald Vince, was born on January 12, 1988.
The relationship of the couple deteriorated until they decided to separate sometime in
1990. Teresita blamed Reynaldo for the break-up, stating he was always nagging her
about money matters. Reynaldo, on the other hand, contended that Teresita was a
spendthrift, buying expensive jewelry and antique furniture instead of attending to
household expenses.
Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo,
Teresita left Reynaldo and the children and went back to California. She claims,
however, that she spent a lot of money on long distance telephone calls to keep in
constant touch with her children.
Reynaldo brought his children home to the Philippines, but because his assignment in
Pittsburgh was not yet completed, he was sent back by his company to Pittsburgh. He
had to leave his children with his sister, co-petitioner Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children because Reynaldo filed
a criminal case for bigamy against her and she was afraid of being arrested. The
judgment of conviction in the bigamy case was actually rendered only on September 29,
1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo).
Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and
filed the petition for a writ of habeas corpus against herein two petitioners to gain
custody over the children, thus starting the whole proceedings now reaching this Court.
On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended
Teresita's parental authority over Rosalind and Reginald and declared Reynaldo to have
sole parental authority over them but with rights of visitation to be agreed upon by the
parties and to be approved by the Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and
Ibay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita
and visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the main contending that
the Court of Appeals disregarded the factual findings of the trial court; that the Court of
Appeals further engaged in speculations and conjectures, resulting in its erroneous
conclusion that custody of the children should be given to respondent Teresita.
We believe that respondent court resolved the question of custody over the children
through an automatic and blind application of the age proviso of Article 363 of the Civil
Code which reads:
Art. 363. In all questions on the care, custody, education and property of the children,
the latter's welfare shall be paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling reasons for such measure.
and of Article 213 of the Family Code which in turn provides:
Art. 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.
The decision under review is based on the report of the Code Commission which drafted
Article 213 that a child below seven years still needs the loving, tender care that only a
mother can give and which, presumably, a father cannot give in equal measure. The
commentaries of a member of the Code Commission, former Court of Appeals Justice
Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account.
Justice Diy believes that a child below seven years should still be awarded to her mother
even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that
moral dereliction has no effect on a baby unable to understand such action. (Handbook
on the Family Code of the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of law rather than
an appreciation of relevant facts and the law which should apply to those facts. The task
of choosing the parent to whom custody shall be awarded is not a ministerial function
to be determined by a simple determination of the age of a minor child. Whether a child
is under or over seven years of age, the paramount criterion must always be the child's
interests. Discretion is given to the court to decide who can best assure the welfare of
the child, and award the custody on the basis of that consideration. In Unson III
vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all controversies
regarding the custody of minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the contending parents", and
in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to
a non-relative as against the mother, then the country's leading civilist, Justice J.B.L.
Reyes, explained its basis in this manner:
. . . While our law recognizes the right of a parent to the custody of her child, Courts
must not lose sight of the basic principle that "in all questions on the care, custody,
education and property of children, the latter's welfare shall be paramount" (Civil Code
of the Philippines. Art. 363), and that for compelling reasons, even a child under seven
may be ordered separated from the mother (do). This is as it should be, for in the
continual evolution of legal institutions, the patria potestas has been transformed from
thejus vitae ac necis (right of life and death) of the Roman law, under which the
offspring was virtually a chattel of his parents into a radically different institution, due to
the influence of Christian faith and doctrines. The obligational aspect is now supreme.
As pointed out by Puig Pena, now "there is no power, but a task; no complex of rights
(of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the
minor."
As a result, the right of parents to the company and custody of their children is but
ancillary to the proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training and development
(Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are mandated by the
Family Code to take into account all relevant considerations. If a child is under seven
years of age, the law presumes that the mother is the best custodian. The presumption
is strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is
over seven, his choice is paramount but, again, the court is not bound by that choice. In
its discretion, the court may find the chosen parent unfit and award custody to the
other parent, or even to a third party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now over seven years of age.
Rosalind celebrated her seventh birthday on August 16, 1993 while Reginald reached
the same age on January 12, 1995. Both are studying in reputable schools and appear to
be fairly intelligent children, quite capable of thoughtfully determining the parent with
whom they would want to live. Once the choice has been made, the burden returns to
the court to investigate if the parent thus chosen is unfit to assume parental authority
and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to
discover the choice of the children and rather than verifying whether that parent is fit or
unfit, respondent court simply followed statutory presumptions and general
propositions applicable to ordinary or common situations. The seven-year age limit was
mechanically treated as an arbitrary cut off period and not a guide based on a strong
presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel
are more intent on emphasizing the "torture and agony" of a mother separated from
her children and the humiliation she suffered as a result of her character being made a
key issue in court rather than the feelings and future, the best interests and welfare of
her children. While the bonds between a mother and her small child are special in
nature, either parent, whether father or mother, is bound to suffer agony and pain if
deprived of custody. One cannot say that his or her suffering is greater than that of the
other parent. It is not so much the suffering, pride, and other feelings of either parent
but the welfare of the child which is the paramount consideration.
We are inclined to sustain the findings and conclusions of the regional trial court
because it gave greater attention to the choice of Rosalind and considered in detail all
the relevant factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita
Flores Macabulos, to determine the effects of uprooting her from the Assumption
College where she was studying. Four different tests were administered. The results of
the tests are quite revealing. The responses of Rosalind about her mother were very
negative causing the psychologist to delve deeper into the child's anxiety. Among the
things revealed by Rosalind was an incident where she saw her mother hugging and
kissing a "bad" man who lived in their house and worked for her father. Rosalind refused
to talk to her mother even on the telephone. She tended to be emotionally emblazed
because of constant fears that she may have to leave school and her aunt's family to go
back to the United States to live with her mother. The 5-1/2 page report deals at length
with feelings of insecurity and anxiety arising from strong conflict with the mother. The
child tried to compensate by having fantasy activities. All of the 8 recommendations of
the child psychologist show that Rosalind chooses petitioners over the private
respondent and that her welfare will be best served by staying with them (pp. 199-
205, Rollo).
At about the same time, a social welfare case study was conducted for the purpose of
securing the travel clearance required before minors may go abroad. Social Welfare
Officer Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the
United States and be reunited with her mother. She felt unloved and uncared for.
Rosalind was more attached to her Yaya who did everything for her and Reginald. The
child was found suffering from emotional shock caused by her mother's infidelity. The
application for travel clearance was recommended for denial (pp. 206-209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age reference in the law
applies to the date when the petition for a writ of habeas corpus is filed, not to the date
when a decision is rendered. This argument is flawed. Considerations involving the
choice made by a child must be ascertained at the time that either parent is given
custody over the child. The matter of custody is not permanent and unalterable. If the
parent who was given custody suffers a future character change and becomes unfit, the
matter of custody can always be re-examined and adjusted (Unson III v.
Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and
the good of the child must be determined as of the time that either parent is chosen to
be the custodian. At the present time, both children are over 7 years of age and are thus
perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had tearful reunion in the trial
court, with the children crying, grabbing, and embracing her to prevent the father from
taking them away from her. We are more inclined to believe the father's contention that
the children ignored Teresita in court because such an emotional display as described by
Teresita in her pleadings could not have been missed by the trial court. Unlike the
Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally
observed the children and their mother in the courtroom. What the Judge found is
diametrically opposed to the contentions of respondent Teresita. The Judge had this to
say on the matter.
And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more
understanding, especially as her conduct and demeanor in the courtroom (during most
of the proceedings) or elsewhere (but in the presence of the undersigned presiding
judge) demonstrated her ebulent temper that tended to corroborate the alleged
violence of her physical punishment of the children (even if only for ordinary disciplinary
purposes) and emotional instability, typified by her failure (or refusal?) to show
deference and respect to the Court and the other parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence and impartiality of the expert
witnesses. Respondent court, in turn, states that the trial court should have considered
the fact that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two
expert witnesses. Actually, this was taken into account by the trial court which stated
that the allegations of bias and unfairness made by Teresita against the psychologist and
social worker were not substantiated.
The trial court stated that the professional integrity and competence of the expert
witnesses and the objectivity of the interviews were unshaken and unimpeached. We
might add that their testimony remain uncontroverted. We also note that the
examinations made by the experts were conducted in late 1991, well over a year before
the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the
examinations were at that time not intended to support petitioners' position in
litigation, because there was then not even an impending possibility of one. That they
were subsequently utilized in the case a quo when it did materialize does not change
the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the court must be construed to
have been presented not to sway the court in favor of any of the parties, but to assist
the court in the determination of the issue before it. The persons who effected such
examinations were presented in the capacity of expert witnesses testifying on matters
within their respective knowledge and expertise. On this matter, this Court had occasion
to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert examines certain contested
documents, at the request, not of a public officer or agency of the Government, but of a
private litigant, does not necessarily nullify the examination thus made. Its purpose,
presumably, to assist the court having jurisdiction over said litigation, in the
performance of its duty to settle correctly the issues relative to said documents. Even a
non-expert private individual may examine the same, if there are facts within his
knowledge which may help, the court in the determination of said issue. Such
examination, which may properly be undertaken by a non-expert private individual,
does not, certainly become null and void when the examiner is an expert and/or an
officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate
Appellate Court, et al. (185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert testimonies, they may place
whatever weight they choose upon such testimonies in accordance with the facts of the
case. The relative weight and sufficiency of expert testimony is peculiarly within the
province of the trial court to decide, considering the ability and character of the witness,
his actions upon the witness stand, the weight and process of the reasoning by which he
has supported his opinion, his possible bias in favor of the side for whom he testifies,
the fact that he is a paid witness, the relative opportunities for study and observation of
the matters about which he testifies, and any other matters which reserve to illuminate
his statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effect (20
Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose ruling
thereupon is not reviewable in the absence of an abuse of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the opportunity to assess the
witnesses' character and to observe their respective demeanor that the trial court opted
to rely on their testimony, and we believe that the trial court was correct in its action.
Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind
and her aunt were about to board a plane when they were off-loaded because there
was no required clearance. They were referred to her office, at which time Reginald was
also brought along and interviewed. One of the regular duties of Social Worker Lopez in
her job appears to be the interview of minors who leave for abroad with their parents or
other persons. The interview was for purposes of foreign travel by a 5-year old child and
had nothing to do with any pending litigation. On cross-examination, Social Worker
Lopez stated that her assessment of the minor's hatred for her mother was based on
the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez
would compromise her position, ethics, and the public trust reposed on a person of her
position in the course of doing her job by falsely testifying just to support the position of
any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and
an M.A. degree holder also in Psychology with her thesis graded "Excellent". She was a
candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may
have shouldered the cost of the interview but Ms. Macabulos services were secured
because Assumption College wanted an examination of the child for school purposes
and not because of any litigation. She may have been paid to examine the child and to
render a finding based on her examination, but she was not paid to fabricate such
findings in favor of the party who retained her services. In this instance it was not even
petitioner Reynaldo but the school authorities who initiated the same. It cannot be
presumed that a professional of her potential and stature would compromise her
professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a
subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on a love affair with one of the
Reynaldo's fellow NSC employees.
3. She is incapable of providing the children with necessities and conveniences
commensurate to their social standing because she does not even own any home in the
Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling reasons under
the law which would justify depriving her of custody over the children; worse, she
claims, these findings are non-existent and have not been proved by clear and
convincing evidence.
Public and private respondents give undue weight to the matter of a child under 7 years
of age not to be separated from the mother, without considering what the law itself
denominates as compelling reasons or relevant considerations to otherwise decree. In
the Unson III case, earlier mentioned, this Court stated that it found no difficulty in not
awarding custody to the mother, it being in the best interest of the child "to be freed
from the obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . .
might create in the moral and social outlook of [the child] who was in her formative and
most impressionable stage . . ."
Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age.
They understand the difference between right and wrong, ethical behavior and deviant
immorality. Their best interests would be better served in an environment characterized
by emotional stability and a certain degree of material sufficiency. There is nothing in
the records to show that Reynaldo is an "unfit" person under Article 213 of the Family
Code. In fact, he has been trying his best to give the children the kind of attention and
care which the mother is not in a position to extend.
The argument that the charges against the mother are false is not supported by the
records. The findings of the trial court are based on evidence.
Teresita does not deny that she was legally married to Roberto Lustado on December
17, 1984 in California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC
Decision). Less than a year later, she had already driven across the continental United
States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The
two were married on October 7, 1987. Of course, to dilute this disadvantage on her
part, this matter of her having contracted a bigamous marriage later with Reynaldo,
Teresita tried to picture Reynaldo as a rapist, alleging further that she told Reynaldo
about her marriage to Lustado on the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And
even if this story were given credence, it adds to and not subtracts from the conviction
of this Court about Teresita's values. Rape is an insidious crime against privacy.
Confiding to one's potential rapist about a prior marriage is not a very convincing
indication that the potential victim is averse to the act. The implication created is that
the act would be acceptable if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage only much later. In
fact, the rape incident itself is unlikely against a woman who had driven three days and
three nights from California, who went straight to the house of Reynaldo in Pittsburgh
and upon arriving went to bed and, who immediately thereafter started to live with him
in a relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various witnesses that
while married to Reynaldo, Teresita entered into an illicit relationship with Perdencio
Gonzales right there in the house of petitioner Reynaldo and respondent Teresita.
Perdencio had been assigned by the National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The
record shows that the daughter Rosalind suffered emotional disturbance caused by the
traumatic effect of seeing her mother hugging and kissing a boarder in their house. The
record also shows that it was Teresita who left the conjugal home and the children,
bound for California. When Perdencio Gonzales was reassigned to the Philippines,
Teresita followed him and was seen in his company in a Cebu hotel, staying in one room
and taking breakfast together. More significant is that letters and written messages
from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man to another does not
fall under "compelling reasons" is neither meritorious nor applicable in this case. Not
only are the children over seven years old and their clear choice is the father, but the
illicit or immoral activities of the mother had already caused emotional disturbances,
personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This
is not to mention her conviction for the crime of bigamy, which from the records SANDOVAL-GUTIERREZ, J.:
appears to have become final (pp. 210-222, Rollo).
May an illegitimate child, upon adoption by her natural father, use the surname of her
Respondent court's finding that the father could not very well perform the role of a sole natural mother as her middle name? This is the issue raised in the instant case.
parent and substitute mother because his job is in the United States while the children
will be left behind with their aunt in the Philippines is misplaced. The assignment of The facts are undisputed.
Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the
purchase of a steel mill component and various equipment needed by the National Steel
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt
Corporation in the Philippines. Once the purchases are completed, there is nothing to
his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among
keep him there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs
others, that Stephanie was born on June 26, 1994;2that her mother is Gemma Astorga
this Court of the completion of his assignment abroad and of his permanent return to
Garcia; that Stephanie has been using her mothers middle name and surname; and that
the Philippines (ff.
he is now a widower and qualified to be her adopting parent. He prayed that
p. 263, Rollo).
Stephanies middle name Astorga be changed to "Garcia," her mothers surname, and
that her surname "Garcia" be changed to "Catindig," his surname.
The law is more than satisfied by the judgment of the trial court. The children are now
both over seven years old. Their choice of the parent with whom they prefer to stay is
On March 23, 2001,3 the trial court rendered the assailed Decision granting the
clear from the record. From all indications, Reynaldo is a fit person, thus meeting the
adoption, thus:
two requirements found in the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no longer applies as the
children are over seven years. Assuming that the presumption should have persuasive "After a careful consideration of the evidence presented by the petitioner, and in the
value for children only one or two years beyond the age of seven years mentioned in the absence of any opposition to the petition, this Court finds that the petitioner possesses
statute, there are compelling reasons and relevant considerations not to grant custody all the qualifications and none of the disqualification provided for by law as an adoptive
to the mother. The children understand the unfortunate shortcomings of their mother parent, and that as such he is qualified to maintain, care for and educate the child to be
and have been affected in their emotional growth by her behavior. adopted; that the grant of this petition would redound to the best interest and welfare
of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the
petitioners care and custody of the child since her birth up to the present constitute
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is
more than enough compliance with the requirement of Article 35 of Presidential Decree
reversed and set aside, and the decision of Branch 96 of the Regional Trial Court of the
No. 603.
National Capital Judicial Region stationed in Quezon City and presided over by the
Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody of the
minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth,
special pronouncement is made as to costs. Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil purposes, shall henceforth
be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family
SO ORDERED.
Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Feliciano, Romero, Vitug and Francisco, JJ., concur.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar
concerned pursuant to Rule 99 of the Rules of Court.
G.R. No. 148311. March 31, 2005
Let copy of this Decision be furnished the National Statistics Office for record purposes.
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
SO ORDERED."4
HONORATO B. CATINDIG, petitioner.
On April 20, 2001, petitioner filed a motion for clarification and/or
DECISION reconsideration5 praying that Stephanie should be allowed to use the surname of her
natural mother (GARCIA) as her middle name.
On May 28, 2001,6 the trial court denied petitioners motion for reconsideration holding
that there is no law or jurisprudence allowing an adopted child to use the surname of
his biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use
the surname of her mother as her middle name when she is subsequently adopted by
her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as
a consequence of adoption because: (1) there is no law prohibiting an adopted child
from having a middle name in case there is only one adopting parent; (2) it is customary
for every Filipino to have as middle name the surname of the mother; (3) the middle
name or initial is a part of the name of a person; (4) adoption is for the benefit and best
interest of the adopted child, hence, her right to bear a proper name should not be
violated; (5) permitting Stephanie to use the middle name "Garcia" (her mothers
surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as
her middle name is not opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner
that Stephanie should be permitted to use, as her middle name, the surname of her
natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her natural
mother because under Article 189 of the Family Code, she remains to be an intestate
heir of the latter. Thus, to prevent any confusion and needless hardship in the future,
her relationship or proof of that relationship with her natural mother should be
maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her
natural mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the
surname of the mother. This custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that "the initial or surname of the
mother should immediately precede the surname of the father so that the second name,
if any, will be before the surname of the mother."7
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the designation by which he is
known and called in the community in which he lives and is best known. It is defined as
the word or combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing with him.8 It is both of
personal as well as public interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2)
the surname or family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The surname
or family name is that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law.9
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate
the use of surname10 of an individual whatever may be his status in life, i.e., whether he
may be legitimate or illegitimate, an adopted child, a married woman or a previously
married woman, or a widow, thus:
"Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be obliged
to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word Junior can be used only by a son. Grandsons and other direct
male descendants shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
x x x"
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law regulating the use of a middle
name. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255,
otherwise known as "An Act Allowing Illegitimate Children To Use The Surname Of Their
Father," is silent as to what middle name a child may use.
The middle name or the mothers surname is only considered in Article 375(1), quoted
above, in case there is identity of names and surnames between ascendants and
descendants, in which case, the middle name or the mothers surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may use. Article
365 of the Civil Code merely provides that "an adopted child shall bear the surname of
the adopter." Also, Article 189 of the Family Code, enumerating the legal effects of
adoption, is likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname
of the adopters;
x x x"
However, as correctly pointed out by the OSG, the members of the Civil Code and Family
Law Committees that drafted the Family Code recognized the Filipino custom of adding
the surname of the childs mother as his middle name. In the Minutes of the Joint
Meeting of the Civil Code and Family Law Committees, the members approved the
suggestion that the initial or surname of the mother should immediately precede the
surname of the father, thus
"Justice Caguioa commented that there is a difference between the use by the wife of
the surname and that of the child because the fathers surname indicates the family to
which he belongs, for which reason he would insist on the use of the fathers surname
by the child but that, if he wants to, the child may also use the surname of the
mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written? Justice Caguioa replied that it is up to him but that his
point is that it should be mandatory that the child uses the surname of the father and
permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article
364, which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person
himself precisely because of this misunderstanding. He then cited the following
example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is
Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is
Gutierrez and his mothers surname is David but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect that
it shall be mandatory on the child to use the surname of the father but he may use the
surname of the mother by way of an initial or a middle name. Prof. Balane stated that
they take note of this for inclusion in the Chapter on Use of Surnames since in the
proposed Article (10) they are just enumerating the rights of legitimate children so that
the details can be covered in the appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice
Caguioa that the surname of the father should always be last because there are so many
traditions like the American tradition where they like to use their second given name
and the Latin tradition, which is also followed by the Chinese wherein they even include
the Clan name.
 xxx
Justice Puno suggested that they agree in principle that in the Chapter on the Use of
Surnames, they should say that initial or surname of the mother should immediately
precede the surname of the father so that the second name, if any, will be before the
surname of the mother. Prof. Balane added that this is really the Filipino way. The
Committee approved the suggestion."12 (Emphasis supplied)
In the case of an adopted child, the law provides that "the adopted shall bear the
surname of the adopters."13 Again, it is silent whether he can use a middle name. What
it only expressly allows, as a matter of right and obligation, is for the adoptee to bear
the surname of the adopter, upon issuance of the decree of adoption.14
The Underlying Intent of Adoption Is In Favor of the Adopted Child
Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child.15 It is a juridical
act, a proceeding in rem which creates between two persons a relationship similar to
that which results from legitimate paternity and filiation.16 The modern trend is to
consider adoption not merely as an act to establish a relationship of paternity and
filiation, but also as an act which endows the child with a legitimate status.17 This was,
indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of
the Rights of the Child initiated by the United Nations, accepted the principle that
adoption is impressed with social and moral responsibility, and that its underlying
intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known
as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the
adopted.20
One of the effects of adoption is that the adopted is deemed to be a legitimate child of
the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and
Section 1722 Article V of RA 8552.23
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled
to all the rights provided by law to a legitimate child without discrimination of any
kind, including the right to bear the surname of her father and her mother, as
discussed above. This is consistent with the intention of the members of the Civil Code
and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the
initial or surname of the mother should immediately precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanies continued use of her mothers
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be
noted that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law
on adoption) provide that the adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural
mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house
built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner
provides for all their needs. Stephanie is closely attached to both her mother and father.
She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence,
to allow Stephanie to use her mothers surname as her middle name will not only
sustain her continued loving relationship with her mother but will also eliminate the
stigma of her illegitimacy.
Liberal Construction of Adoption Statutes In Favor Of Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be liberally
construed to carry out the beneficent purposes of adoption.25 The interests and welfare
of the adopted child are of primary and paramount consideration,26 hence, every
reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.27
Lastly, Art. 10 of the New Civil Code provides that:
"In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail."
This provision, according to the Code Commission, "is necessary so that it may tip the
scales in favor of right and justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which may apparently be
authorized by some way of interpreting the law."28
Hence, since there is no law prohibiting an illegitimate child adopted by her natural
father, like Stephanie, to use, as middle name her mothers surname, we find no reason
why she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the
sense that Stephanie should be allowed to use her mothers surname "GARCIA" as her
middle name.
Let the corresponding entry of her correct and complete name be entered in the decree
of adoption.
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.