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Catindig filed a petition to adopt his minor illegitimate child Stephanie Astorga Garcia. He averred that Stephanie was born on June 26, 1994; that Stephanie had been using her mother’s middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie’s middle name be changedto Garcia, her mother’s surname, and that her surname “Garcia” be changed to “Catindig” his surname. The RTC granted the petition for adoption, and ordered that pursuant to article 189 of the Family Code, the minor shall be known as Stephanie Nathy Catindig. Honorato filed a motion for classification and/or reconsideration praying that Stephanie be allowed to use the surname of her natural mother (Garcia) as her middle name. The lower court denied petitioner’s 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. Issue: Whether or not an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Held: One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adapter for all intents and purposes pursuant to Article 189 of the Family Code and Section 17 of Article V of RA 8557. Being a legitimate 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. This is consistent with the intention of the members of the Civil Code and Family Law Committees. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father.
Diwata Ramos Landingin vs. Republic, G.R. No. 164948 5OCT FACTS: Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition for the adoption of minors Elaine Dizon Ramos, Elma Dizon Ramos and Eugene Dizon Ramos who was born on. The minors are the natural children of Manuel Ramos, petitioner’s brother (deceased), and Amelia Ramos- who went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children . ISSUE: Whether or not the petition for adoption is invalid for lack of consent of the biological mother? HELD: No. The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.
Vancil vs. Belmes, 358 SCRA 707, GR No. 132223 5OCT
FACTS: Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December 22, 1986. During his lifetime, Reeder had two (2) children named Valerie and Vincent by his common-law wife, Helen G. Belmes. Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of Cebu City a guardianship proceedings over the persons and properties of minors Valerie and Vincent docketed as Special Proceedings No. 1618-CEB. At the time, Valerie was only 6 years old while Vincent was a 2-year old child. It is claimed in the petition that the minors are residents of Cebu City, Philippines and have an estate consisting of proceeds from their father’s death pension benefits with a probable value of P100,000.00. Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutive-weekly publications with the Sunstar Daily. On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr. On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition to the subject guardianship proceedings asseverating that she had already filed a similar petition for guardianship under Special Proceedings No. 2819 before the Regional Trial Court of Pagadian City. Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for the Removal of Guardian and Appointment of a New One, asserting that she is the natural mother in actual custody of and exercising parental authority over the subject minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently residing; that the petition was filed under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a resident of 140 Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized American citizen. On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes’ motion to remove and/or to disqualify Bonifacia as guardian of Valerie and Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and perform her duties as such guardian upon the posting of a bond of P50,000.00. The subsequent attempt for a reconsideration was likewise dismissed in an Order dated November 24, 1988. ISSUE: Who between the mother and grandmother of minor Vincent should be his guardian. HELD: YES, the natural mother of the minor, has the preferential right over that of petitioner to be hisguardian. Article 211 of the Family Code provides: “Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicialorder to the contrary.” Being the natural mother of the minor Vincent, she has the corresponding natural and legal right to be in her custody. Petitioner‘s claim to bethe guardian of said minor can only be realized by way of substitute parental authority pursuant to Article 214 of the Family Code, thus: Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. Petitioner, as the surviving grandparent, can exercise substitute parental authority only incase of death, absence or unsuitability of respondent. Considering that respondent is verymuch alive and has exercised continuously parental authority over Vincent, petitioner has to prove, in asserting her right to be the minor‘s guardian, respondent‘s unsuitability. Petitioner asserts this based on the allegation that Valerie was raped several times by the a live in partner. However this case pertains to Vincent and is thus not directly attestable to that fact. Moreover the status as U.S.resident, her old age and her conviction of libel in the country deem her unlikely to be able to execute the duties of a guardian (has not been in RP since 87‘). Moreover courts should not appoint persons as guardians who are not within the jurisdiction of our courts for they will find it difficult to protect the wards. Republic vs. Hernandez, GR No. 117209, February 9, 1996_digested Posted by Pius Morados on March 27, 2012 (Special Proceedings – Adoption: Change of Name) Facts: The RTC granted the petition for adoption of Kevin Earl Bartolome Moran and simultaneously granted the prayer therein for the change of the first name of said adoptee to Aaron Joseph, to complement the surname Munson y Andrade which he acquired consequent to his adoption.
Petitioner opposed the inclusion of the relief for change of name in the same petition for adoption objecting to the joinder of the petition for adoption and the petitions for the change of name in a single proceeding, arguing that these petition should be conducted and pursued as two separate proceedings. Petitioner argues that a petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different from and are not related to each other, being respectively governed by distinct sets of law and rules. Petitioner further contends that what the law allows is the change of the surname of the adoptee, as a matter of right, to conform with that of the adopter and as a natural consequence of the adoption thus granted. If what is sought is the change of the registered given or proper name, and since this would involve a substantial change of one’s legal name, a petition for change of name under Rule 103 should accordingly be instituted, with the substantive and adjective requisites therefor being conformably satisfied. Private respondents, on the contrary, admittedly filed the petition for adoption with a prayer for change of name predicated upon Section 5, Rule 2 which allows permissive joinder of causes of action in order to avoid multiplicity of suits and in line with the policy of discouraging protracted and vexatious litigations. It is argued that there is no prohibition in the Rules against the joinder of adoption and change of name being pleaded as two separate but related causes of action in a single petition. Issue: WON respondent judge erred in granting prayer for the change of the given or proper name if the adoptee in a petition for adoption. Held: No. Par (1), Art. 189 of the Family Code provides one of the legal effect of adoption: (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; The law allows the adoptee, as a matter of right and obligation, to bear the surname of the adopter, upon issuance of the decree of adoption. It is the change of the adoptee’s surname to follow that of the adopter which is the natural and necessary consequence of a grant of adoption and must specifically be contained in the order of the court, in fact, even if not prayed for by petitioner. However, the given or proper name, also known as the first or Christian name, of the adoptee must remain as it was originally registered in the civil register. The creation of an adoptive relationship does not confer upon the adopter a license to change the adoptee’s registered Christian or first name. The automatic change thereof, premised solely upon the adoption thus granted, is beyond the purview of a decree of adoption. Neither is it a mere incident in nor an adjunct of an adoption proceeding, such that a prayer therefor furtively inserted in a petition for adoption, as in this case, cannot properly be granted. The official name of a person whose birth is registered in the civil register is the name appearing therein. If a change in one’s name is desired, this can only be done by filing and strictly complying with the substantive and procedural requirements for a special proceeding for change of name under Rule 103 of the Rules of Court, wherein the sufficiency of the reasons or grounds therefor can be threshed out and accordingly determined. A petition for change of name being a proceeding in rem, strict compliance with all the requirements therefor is indispensable in order to vest the court with jurisdiction for its adjudication. It is an independent and discrete special proceeding, in and by itself, governed by its own set of rules. A fortiori, it cannot be granted by means of any other proceeding. To consider it as a mere incident or an offshoot of another special proceeding would be to denigrate its role and significance as the appropriate remedy available under our remedial law system.
DSWD v. BELEN 275 SCRA 645 (1997)DIANNA FACTS - Administrative complaint initiated by Corazon M.Layug, Social Welfare Officer IV of the DSWS FieldOffice in La Union.- Respondent Judge Antonio M. Belen is chargedwith rendering an erroneous decree of adoptionin violation of Article 33 of Presidential DecreeNo. 603 and the corresponding SC Circular No. 12.Respondent Elma P. Vedaña, Social WelfareOfficer II, Office of the Clerk of Court, Regional Trial Court of Lingayen, Pangasinan is chargedwith disregarding the provisions of the sameCircular No. 12.1 . S p o u s e s D e s i d e r i o S o r i a n o a n d A u r o r a Bernardo-
Soriano, both naturalized Americancitizens, filed a verified petition for adoption of their niece, the minor Zhedell Bernardo Ibea.2. Judge Belen granted the petition after findingthat petitioner spouses were highly qualified toadopt the child as their own.3 . B e l e n b a s e d h i s d e c r e e p r i m a r i l y o n t h e “findings and recommendation of the DSWD thatthe adopting parents on the one hand and thea d o p t e e o n t h e o t h e r h a n d h a v e a l r e a d y developed love and emotional attachment andparenting rules have been demonstrated to theminor.”4. On these considerations, respondent judgedecided and proceeded to dispense with trialcustody. Judge says the DSWD findings and recommendations are contained in the “AdoptiveHome Study Report” and “Child Study Report”prepared by the local office of the DSWD throughrespondent Vedaña.5. However, when the minor Zhedell BernardoI b e a s o u g h t t o o b t a i n t h e r e q u i s i t e t r a v e l clearance from the DSWD in order to join heradoptive parents in the United States, it turnedout that the DSWD did not have any record in itsfiles regarding the adoption and that there wasnever any order from respondent judge for the D S W D t o c o n d u c t a “ H o m e a n d C h i l d S t u d y Report” in the case.6 . F U R T H E R , t h e r e w a s n o d i r e c t i v e f r o m respondent judge for the social welfare officer of the lower court to coordinate with the DSWD onthe matter of the required reports for said minor’sadoption.7. ARTICLE 33, PD 603 states: Petitions foradoption shall be grant ed only after the DSWDhas conducted and submitted a case study of theadoptee, the natural parents and the adoptive parents. Circular No. 12 directs Regional Trial Courtsh e a r i n g a d o p t i o n c a s e s : ( 1 ) t o N O T I F Y t h e Ministry of Social Services and Development, thruits local agency, of the filing of adoption cases orthe pendency thereof with respect to those casesalready filed; (2) to strictly COMPLY with ther e q u i r e m e n t i n A r t i c l e 3 3 o f t h e a f o r e s a i d decree… The Staff Assistant V (Social Worker) of the Regional Trial Courts, if any, shall coordinatew i t h t h e M i n i s t r y o f S o c i a l S e r v i c e s a n d Development representatives in the preparationand submittal of such case study.8 . I t w a s a l s o a l l e g e d b y t h e D S W D t h a t respondent Elma P. Vedaña had asked for anundisclosed amount of money from the adopting parents in order to expedite the adoption casewith the DSWD.9. Respondent judge, in compliance therewith,claimed that he directed respondent Vedaña to conduct the home and case study, and thereafters u b m i t t h e r e q u i r e d r e p o r t s t h e r e o n . B e l e n contends that, except only for direct coordinationwith the DSWD in the preparation of said reports,no approval from the DSWD is necessary for thehome and case study reports and it need not befurnished therewith.1 0 . T h e O C A r e c o m m e n d e d t h a t r e s p o n d e n t judge be administratively punished for violatingCircular No. 12 and Article 33 of PD 603.11. Vedaña meanwhile, pointed out that therenever was any directive from respondent judge for her to coordinate with the DSWD concerningthe adoption in question. She was only ordered toconduct the case study and submit her report thereon to the court at least one week before thei n i t i a l h e a r i n g o f t h e c a s e , a s w a s a l s o t h e practice in the other RTCs. ISSUE WON approval from the DSWD is necessary for the home and case study reports (and whether a judge may decide based on such report). HELD NO.- Belen definitely rendered the adoption decree inderogation of the provisions of Article 33 andC i r c u l a r N o . 1 2 a n d V e d a ñ a s h o u l d h a v e coordinated with the DSWD in connection witht h e p r e p a r a t i o n o f t h e h o m e a n d c a s e s t u d y reports. Ratio 1. Pursuant to Circular No. 12, the proper coursethat respondent judge should have taken was ton o t i f y t h e D S W D a t t h e o u t s e t a b o u t t h e commencement of the Special Proceeding so thatthe corresponding case study could have been accordingly conducted by said department.2. DSWD has the necessary competence, morethan that possessed by the court social welfare officer, to make the proper recommendation.3. Belen should never have merely presumed thatit was routinary for the social welfare officer tocoordinate with the DSWD regarding the adoptionproceedings. It was his duty to exercise cautiona n d t o s e e t o i t t h a t s u c h c o o r d i n a t i o n w a s observed in the adoption proceedings,
togetherwith all the other requirements of the law.4. Belen may well have wittingly or unwittingly placed in jeopardy the welfare and future of thechild whose adoption was under consideration.Adoption, after all, is in a large measure a legaldevice by which a better future may be accordedan unfortunate child.5 . A s f o r V e d a ñ a , s h e h a s c o m p r o m i s e d t h e prescribed process in the administration of justicei n p r o c e e d i n g s s u c h a s t h e o n e u n d e r consideration.6. Belen acted in good faith however inpresumably believing that it was standardprocedure for the Social Welfare Officer II of aRegional Trial Court to do so in coordination withthe DSWD. Also, there is no evidence whatsoeverthat respondent Vedaña sought to obtain anyamount from the adopting parents. In Re Petition for Adoption of Michelle Lim and Michael Jude Lim GR No. 168992-93, May 21, 2009 FACTS: Monina Lim, petitioner, who was an optometrist was married with Primo Lim but were childless. Minor children, were entrusted to them by Lucia, whose parents were unknown as shown by a certification of DSWD. The spouses registered the children making it appears as if they were the parents. Unfortunately, in 1998, Primo died. She then married an American Citizen, Angel Olario in December 2000. Petitioner decided to adopt the children by availing of the amnesty given under RA 8552 to individuals who simulated the birth of a child. In 2002, she filed separate petitions for adoption of Michelle and Michael before the trial court. Michelle was then 25 years old and already married and Michael was 18 years and seven months old. Michelle and her husband including Michael and Olario gave their consent to the adoption executed in an affidavit. ISSUE: WON petitioner who has remarried can singly adopt. HELD: Petition was denied. The time the petitions were filed, petitioner had already remarried. Husband and wife shall jointly adopt except in 3 instances which was not present in the case at bar. In case spouses jointly adopts, they shall jointly exercised parental authority. The use of the word “shall” signifies that joint adoption of husband and wife is mandatory. This is in consonance with the concept of joint parental authority since the child to be adopted is elevated to the level of a legitimate child, it is but natural to require spouses to adopt jointly. The affidavit of consent given by Olario will not suffice since there are certain requirements that he must comply as an American Citizen. He must meet the qualifications set forth in Sec7 of RA8552. The requirements on residency and certification of the alien’s qualification to adopt cannot likewise be waived pursuant to Sec 7. Parental authority is merely just one of the effects of legal adoption. It includes caring and rearing the children for civic consciousness and efficiency and development of their moral mental and physical character and well-being.
Tonog vs. Court of Appeals 376 SCRA 523, February 7, 2002 FACTS: 1. September 23, 1989, petitioner Dinah B. Tonoggave birth to Gardin Faith Belarde Tonog, herillegitimate daughter with private respondentEdgar V. Daguimol.2. A year after the birth of Gardin Faith, petitionerleft for the United States of America to work asa registered nurse3. Gardin Faith was left in the care of her father(private respondent herein) and paternalgrandparents.4. On January 10, 1992, private respondent fileda petition for guardianship over Gardin Faithand it was approved5. Petitioner opposed. on October 4, 1993, amotion to remand custody of Gardin Faith toher.6. The trial court granted the motion and the caseto determine custody of Gardin Faith is nowpending.7. The respondent filed a petition for review oncertiorari asserting that temporary custodyshould be awarded to him because the child has lived with him all her life and ―It wouldcertainly wreak havoc on the child‘s psychological make-up to give her to thecustody of private respondent, only to returnher to petitioner should the latter prevail in themain case. Subjecting the child to emotional
seesaw should be avoided‖ ISSUE: W.N. temporary custody should be granted tothe father. HELD: Yes.In custody disputes, it is axiomatic that theparamount criterion is the welfare and well-being of the child.Insofar as illegitimate children are concerned,Article 176 of the Family Code provides thatillegitimate children shall be under the parentalauthority of their mother. Likewise, Article 213of the Family Code provides th at ―*n+o child under seven years of age shall be separatedfrom the mother, unless the court findscompelling reasons to order otherwise. The exception allowed by the rule has to be for ―compelling reasons ‖ for the good of the child. If she has erred, as in cases of adultery,the penalty of imprisonment and the divorcedecree (relative divorce) will ordinarily besufficient punishment for her. Moreover, moraldereliction will not have any effect upon thebaby who is as yet unable to understand hersituation.This is not intended, however, to denigrate theimportant role fathers play in the upbringing oftheir children. While the bonds between amother and her small child are special innature, either parent, whether father or mother,is bound to suffer agony and pain if deprived ofcustody. One cannot say that his or hersuffering is greater than that of the otherparent. It is not so much the suffering, pride,and other feelings of either parent but thewelfare of the child which is the paramountconsideration.In the case at bar, we are being asked to ruleon the temporary custody of the minor, GardinFaith, since it appears that the proceedings forguardianship before the trial court have notbeen terminated, and no pronouncement hasbeen made as to who should have finalcustody of the minor. Bearing in mind that thewelfare of the said minor as the controllingfactor, we find that the appellate court did noterr in allowing her father (private respondentherein) to retain in the meantime parentalcustody over her. Meanwhile, the child shouldnot be wrenched from her familiarsurroundings, and thrust into a strangeenvironment away from the people and placesto which she had apparently formed anattachment.COMMENT: The court never expounded onwhat these compelling reasons are. The bestanswer I could find is stated in the nextparagraph saying that the SC cannot decide onquestions of fact. And the determination of w/nthe mother is a good mother is indeed aquestion of fact. But it still does not answer whycustody was granted to the father.Is the compelling reason the fact that hermother is in the states? Is it the fact that the child is already staying at the father‘s house and moving the child to and fro would causethe child distress? Are these reasonscompelling enough for the court to award temporary custody to the father? I don‘t know Are cases regarding temporary custody exceptions to Articles 176 and 213? I don‘t know.For reference, I also posted the full text of thecase.Whether a mother is a fit parent for her child isa question of fact to be properly entertained inthe special proceedings before the trial court. Itshould be recalled that in a petition for reviewon certiorari, we rule only on questions of law.We are not in the best position to assess the parties‘ respective merits vis-à-vis theiropposing claims for custody. Yet anothersound reason is that inasmuch as the age ofthe minor, Gardin Faith, has now exceeded thestatutory bar of seven years, a fortiori , herpreference and opinion must first be sought inthe choice of which parent should have thecustody over her person.A word of caution: our pronouncement hereshould not be interpreted to imply a preferencetoward the father (herein private respondent)relative to the final custody of the minor, GardinFaith. Nor should it be taken to mean as astatement
against petitioner‘s fitness to have final custody of her said minor daughter. Itshall be only understood that, for the presentand until finally adjudged, temporary custody ofthe subject minor should remain with her father WHEREFORE, The trial court is directed toimmediately proceed with hearing Sp. Proc.No. Q-92-11053 upon notice of this decision OBITER: Parental Authority and itsRenunciation Parental authority or patria potestas in RomanLaw is the juridical institution whereby parentsrightfully assume control and protection of theirunemancipated children to the extent required by the latter‘s needs. It is a mass of rights andobligations which the law grants to parents for the purpose of the children‘s physical preservation and development, as well as thecultivation of their intellect and the education oftheir heart and senses. As regards parental authority, ―there is no power, but a task; no complex of rights, but a sum of duties; nosovereignty but a sacred trust for the welfare of the minor.‖ GR: Parental authority and responsibility areinalienable and may not be transferred orrenounced except in cases authorized by law.The right attached to parental authority, beingpurely personal, the law allows a waiver ofparental authority only in cases of EXC:adoption, guardianship and surrender to a children‘s home or an orphan institution. When a parent entrusts the custody of a minorto another, such as a friend or godfather, evenin a document, what is given is merelytemporary custody and it does not constitute arenunciation of parental authority. Even if adefinite renunciation is manifest, the lawstill disallows the same. Sagala v CA (G.R. 116773) FACTS: On June 22, 1984, petitioner Maria Paz Cordero-Ouye and Reynaldo Eslao were married. After their marriage, the couple stayed with respondent Teresita Eslao, mother of the husband, at 1825, Road 14, Fabie Estate, Paco, Manila. Out of their marriage, two children were begotten, namely, Leslie Eslao and Angelica Eslao. Leslie was entrusted to the care and custody of petitioner’s mother while Angelica stayed with her parents at respondent’s house. Reynaldo Eslao died. Petitioner intended to bring Angelica with her to Pampanga but the respondent prevailed upon her to entrust the custody of Angelica to her, respondent reasoning out that her son just died and to assuage her grief therefor, she needed the company of the child to at least compensate for the loss of her late son. Subsequently, petitioner was introduced to Dr. James Manabu-Ouye, a Japanese-American. Their acquaintance blossomed into a marriage and the petitioner migrated to San Francisco, California, USA, to join her new husband. The petitioner returned to the Philippines to be reunited with her children and bring them to the United States. The petitioner then informed the respondent about her desire to take custody of Angelica and explained that her present husband, Dr. Ouye, expressed his willingness to adopt Leslie and Angelica and to provide for their support and education; Respondent resisted the idea by way of explaining that the child was entrusted to her when she was ten days old and accused the petitioner of having abandoned Angelica. The lower court rendered its decision ordering respondent to cause the immediate transfer of the custody of the Angelica to her natural mother. The Court of Appeals affirmed the lower court’s decision. ISSUE: Whether or not custody of the daughter should be given to the mother. RATIO:
Yes. The trial court’s disquisition, in consonance with the provision that the child’s welfare is always the paramount consideration in all questions concerning his care and custody is enough to convince the Court to decide in favor of private respondent. When private respondent entrusted the custody of her minor child to the petitioner, what she gave to the latter was merely temporary custody and it did not constitute abandonment or renunciation of parental authority. For the right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution which do not appear in the case at bar. Of considerable importance also, is the rule long accepted by the courts that “the right of parents to the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship. Perez vs. CA, GR No. 118870, March 29, 1996 Posted by Pius Morados on March 17, 2012 (Special Proceedings – Custody: A child under seven years shall not be separated from his mother) Facts: Respondent father, a doctor of medicine and petitioner mother, a registered nurse working in the US are married couples who are separated in fact with only one child. Petitioner filed a petition for habeas corpus asking respondent to surrender the custody of their son. The RTC issued an Order awarding custody of the one-year old child to his mother, citing the second paragraph of Article 213 of the Family Code. Upon appeal by the father, the Court of Appeals reversed the trial court’s order and awarded custody of the boy to him ruling that there were enough reasons to deny petitioner custody over the child even under seven years old. It held that granting custody to the boy’s father would be for the child’s best interest and welfare. Article 213, par 2, provides in case of separation of parents that no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Rule 99, Section 6 of the Revised Rules of Court also states that “No child under seven years of age shall be separated from the mother, unless the court finds there are compelling reasons therefore. Issue: WON custody of the child is to be given to the father. Held: No. The provisions of the law clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the word “shall” in Article 213 of the Family Code and Rule 99, Sec 6 of the Revised Rules of Court connotes a mandatory character. Couples who are separated in fact are covered within the term separation. The Family Code in reverting to the provision of the Civil Code that a child below seven years old shall not be separated from the mother (Article 363), has expressly repealed the earlier Article 17, par 3 of the Child and youth Welfare Code which reduced the child’s age to 5 years.
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