Lazatin v.

Campos
G.R. No. L-43955-56
30 July 1979
J. Teehankee
Ortiz
petitioners RENATO LAZATIN alias RENATO STA. CLARA, petitioner,
respondents HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON
and IRMA L. VELOSO, respondents.
summary Renato Lazatin filed a motion to intervene in the probate of the will of the late Margarita de Asis. He
alleges that he was an adopted child of Mariano Lazatin and Margarita de Asis. The Supreme Court
ruled in favor of the respondents. The petitioner failed to present judicial records of such adoption. The
absence of proof of such order of adoption by the court cannot be substituted by parole evidence that
a child has lived with a person, not his parent, and has been treated as a child to establish such
adoption.

facts of the case

Respondents filed a petition to probate the will of the late Margarita de Asis. Petitioner Renato Lazatin alias Renato Sta.
Clara filed a motion to intervene in the estate of Margarita de Asis as an adopted child, on the basis of an affidavit executed
by Benjamin Lazatin, brother of the deceased Dr. Mariano M. Lazatin, the petitioner was an "illegitimate son" of Dr. Lazatin
and was later adopted by him. This affidavit was later modified on August 19, 1975 to state that petitioner was adopted by
both Mariano M. Lazatin and his wife Margarita de Asis.
Petitioner presented no decree of adoption in his, favor. He attempted to prove that he had recognized the deceased
spouses as his parents; he had been supported by them until their death. The petitioner also alleged that he and his wife
resides in Mercy Hospital at Taft Avenue, Manila, owned by the deceased spouses. Photographs were also intended to be
presented by petitioner, e.g., photograph of Irma Veloso where she addressed herself as sister of petitioner; photograph of
deceased Margarita de Asis and petitioner when he was a boy; document showing that petitioners real name is "Renato
Lazatin."
The trial court ruled that the Petitioner has failed to establish that he was an adopted child of the deceased spouses. All
the evidence submitted by the petitioner do not prove or have no tendency to prove the existence of any judicial proceeding
where the adoption of the parties above named were taken up by any court. Neither do the evidence tend to establish the
presence of any record of a proceeding in court where the adoption was held.
issue
WON the petitioner is an adopted child of the deceased spouses [NO]
ratio
Adoption 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. Only an adoption made through the court, or in pursuance with the
procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction . To establish the relation, the
statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption
is never presumed, but must be affirmatively proved by the person claiming its existence.
Petitioner's evidence does not lead us to any proof of judicial adoption. It does not show or tend to show that at one time
or another a specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late spouses an order
approving his adoption as a child of the latter. No judicial records of such adoption or copies thereof are presented or
attempted to be presented. Petitioner merely proceeds from a nebulous assumption that he was judicially adopted between
the years 1928 and 1932. There are no witnesses cited to that adoption proceeding or to the adoption decree. If there was
really such adoption, petitioner could have conveniently secured a copy of the newspaper publication of the adoption as
required under the Rules of Court or a certification of the publishing house to that effect.
The absence of proof of such order of adoption by the court, as provided by the statute, cannot be substituted by
parole evidence that a child has lived with a person, not his parent, and has been treated as a child to establish
such adoption. Nor does the fact that the deceased spouses fed, clothed, educated, recognized and referred to one like
petitioner as an adopted child, recognized and referred to one like petitioner as an adopted child, necessarily establish
adoption of the child. The thrust of petitioner's evidence is rather to establish his status as an admitted illegitimate child, not
an adopted child which status of an admitted illegitimate child was the very basis of his petitioner for intervention in the
estate proceedings of the late Dr. Lazatin, as above stated.
Secondary evidence is nonetheless admissible where the records of adoption proceedings were actually lost or destroyed.
But, prior to the introduction of such secondary evidence, the proponent must establish the former existence of the
instrument. This was not done in this case.
ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's petition below "to declare as
established in this proceeding the fact of [his] adoption" are hereby affirmed. The temporary restraining order issued on June
16, 1976 and amended on July 21, 1976 is ordered lifted, effective immediately. Without costs. SO ORDERED.

G.R. No. 79955

petitioners
respondent

Cervantes v. Fajardo
January 27, 1989
Padilla
Ramos
IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES, NELSON L. CERVANTES and ZENAIDA CARREON CERVANTES
GINA CARREON FAJARDO and CONRADO FAJARDO

s
summary

Respondents are common-law husband and wife. When wife got pregnant, they decided to offer
the child to her sister and her husband for adoption (petitioners). Eventually, a petition for adoption
was filed by the petitioners and was granted. However, one day, petitioners received a letter from
respondents demanding P150k, otherwise, they would get back their child. Petitioners refused, so the
respondent wife took the child from her yaya and brought her to her house. Petitioner files a petition
for a writ of Habeas Corpus.
SC said that given the circumstances, the petitioners were entitled to the custody of the child.
Given that the respondents were living in a common-law relationship and that the husband is legally
married to another woman, living with them will not accord the minor that desirable atmosphere
where she can grow and develop into an upright and moral-minded person. Besides, respondent wife
had also previously given birth to another child by another married man who eventually left her and
vanished. Court said for a minor to grow up with a sister whose "father" is not her true father, could
also affect the moral outlook and values of said minor. On the other hand, petitioners who are legally
married appear to be morally, physically, financially, and socially capable of supporting the minor and
giving her a future better. Besides, they have already been granted a decree of adoption.

facts of the case

This involves a petition for a writ of Habeas Corpus was filed with the SC over the person of the minor Angelie Anne
Cervantes.
The minor was born to (respondents) Conrado Fajardo and Gina Carreon, who are common-law husband and wife.
Respondents offered the child for adoption to Gina Carreon's sister and brother-in-law, (petitioners) Zenaida CarreonCervantes and and husband Nelson Cervantes, who took care and custody of the child when she was barely 2 weeks old. An
Affidavit of Consent to the adoption of the child by herein petitioners, was also executed by respondent Gina Carreon.
A petition for adoption was filed by petitioners over the child before the RTC Rizal which granted their petition. However,
sometime in March or April 1987, the adoptive parents received a letter from the respondents demanding to be paid the
amount of P150,000, otherwise, they would get back their child. Petitioners refused to accede to the demand.
On 11 September 1987, while petitioners were out at work, the respondent Gina Carreon took the child from her "yaya" at
the petitioners' residence in Angono, Rizal, on the pretext that she was instructed to do so by her mother and brought the
child to her house in Paranaque.
During trial, the social worker who conducted the case study on the adoption and submitted a report saying that he had
interviewed respondent Gina Carreon in connection with the contemplated adoption of the child and that during the interview,
said respondent manifested to the social worker her desire to have the child adopted by the petitioners.
issue
WON the adoptive parents are entitled to the custody of the child (YES)
ratio
In all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The
provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds
compelling reasons to rule otherwise. In all controversies regarding the custody of minors, the foremost consideration is the
moral, physical and social welfare of the child concerned, taking into account the resources and moral as well as social
standing of the contending parents.
As applied: Respondent Conrado Fajardo is legally married to a woman other than respondent Gina Carreon, and his
relationship with the latter is a common-law husband and wife relationship. His open cohabitation with co-respondent Gina
Carreon will not accord the minor that desirable atmosphere where she can grow and develop into an upright and moralminded person. Besides, respondent Gina Carreon had previously given birth to another child by another married man with
whom she lived for almost three (3) years but who eventually left her and vanished. For a minor to grow up with a sister
whose "father" is not her true father, could also affect the moral outlook and values of said minor.
Upon the other hand, petitioners who are legally married appear to be morally, physically, financially, and socially
capable of supporting the minor and giving her a future better than what the natural mother, who is not only jobless but also
maintains an illicit relation with a married man, can most likely give her.
Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A decree
of adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted child, except
where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental authority over the
adopted shall be exercised jointly by both spouses.

G.R. No. 103695

petitioners
respondent

Republic v. CA
March 15, 1996
Mendoza
Republic of the Philippines
Court of Appeals, Jaime Caranto and Zenaida Caranto

Recto

s
summary

Spouses Caranto filed a petition for adoption of Midael with prayer for correction of the minors
first name Midael to Michael. Lower court acquired jurisdiction over the petition for adoption and
therefore the decision granting the adoption was valid. However, the decision of the lower court
ordering to change the name is void. The local civil registrar is required to be made a party to the
proceeding and although there was notice for adoption, there was no notice for the petition to change
the name.

facts of the case

Spouses Jaime and Zenaia Caranto filed a petition for the adoption of Midael C. Mazon with prayer for correction of the
minors first name Midael to Michael, then 15 years old who had been living with Jaime since he was 7. When the spouses
married in 1986, Michael lived with them.
The Solicitor General opposed the petition insofar as it sought to correct the name of the child. Since it was only a clerical
error, it could not be granted because the petition was for adoption, not correction of entry.
During trial, Zenaida, Florentina Mazon (natural mother) and the minor testified. Carlina Perez, social worker of DSWD
endorsed the adoption.
RTC dismissed the opposition of the Solicitor General on ground that Rule 108 (Cancellation or Correction of Entries in the
Civil Registry) applies only to the correction of entries concerning the civil status of persons.
Solicitor General appealed to the CA reiterating his contention that the correction of names cannot be effected in the
same proceeding for adoption. He argued that RTC did not acquire jurisdiction because in the notice published in the
newspaper the name given was Michael instead of Midael. The Solicitor General invokes the ruling in Cruz v Republic
where the petition for adoption and the notice published in the newspaper gave the baptismal name of the child ("Rosanna E.
Cruz") instead of her name in the record of birth ("Rosanna E. Bucoy"). It was held that this was a "substantial defect in the
petition and the published order of hearing."
CA affirmed RTC.
issue
1. Whether or not the RTC acquired jurisdiction over the petition for adoption. YES
2. Whether or not RTC can order the local civil registrar to change the name Midael to Micahel. NO.
ratio
1. Whether or not the RTC acquired jurisdiction over the petition for adoption. YES
This case is different from Cruz v Republic because here it involves an obvious clerical error in the name of the child
sought to be adopted. In this case the correction involves merely the substitution of the letters "ch" for the letter "d," so that
what appears as "Midael" as given name would read "Michael."
Changing the name of the child from "Midael C. Mazon" to "Michael C. Mazon" cannot possibly cause any confusion,
because both names "can be read and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig)." The purpose
of the publication requirement is to give notice so that those who have any objection to the adoption can make their objection
known. That purpose has been served by publication of notice in this case.
2.

Whether or not RTC can order the local civil registrar to change the name Midael to Micahel. NO.

The prayer for correction of name is void. The trial court was in error in holding that Rule 108 applies only to correction of
errors concerning civil status of persons. Rule 108, Section 2 states:
Section 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil
register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separation; (e) judgments of annulments
of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments
of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation (n) voluntary emancipation of a minor; and (o) changes of name.
Section 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all
persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.
Section 4. Notice and publication. Upon filing of the petition, the court shall, by an order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the
province.
This case falls under letter "(o)," referring to "changes of name." The local civil registrar is required to be made a party to
the proceeding. He is an indispensable party. As he was not impleaded, the decision granting the correction of entry is void.
There was also no notice of petition for correction of entry published as required in Rule 108 Section 4.
While there was notice given by publication in this case, it was notice of the petition for adoption made in compliance
with Rule 99, 4. In that notice only the prayer for adoption of the minor was stated. Nothing was mentioned that in addition
the correction of his name in the civil registry was also being sought. The local civil registrar was thus deprived of notice and,
consequently, of the opportunity to be heard.

Republic v. CA & Bobiles

G.R. No. 92326
Jan. 24, 1992
Regalado
Reynes
petitioners Republic of the Philippines
respondents Court of Appeals, Zenaida C. Bobiles
summary Zenaida filed a petition to adopt Jason Condat on Feb. 2, 1988 (before the effectivity of the Family
Code). The RTC granted the petition in favor of Zenaida and her husband Dioscoro. Pending appeal
before the CA, the Family Code (which provides that spouses should adopt jointly) took effect.
The Court ruled that the Family Code should be applied retroactively, since Zenaidas right to file the
petition for adoption alone had already vested upon her filing of the same during the effectivity of the
Child and Youth Welfare Code. The Court also affirmed the decree in favor of both Zenaida and
Dioscoro as the latter was effectively a co-petitioner by annexing his Affidavit of Consent. Furthermore,
the Court primarily considered the best interests and welfare of the child.

facts of the case

1. [Feb. 2, 1988] ZENAIDA filed a petition to adopt Jason Condat, then six (6) years old and had lived with
ZENAIDAs family since Jason was four (4) months old. The governing law then was the Child and Youth Welfare
Code (CYWC).
2. [Mar. 20, 1988] The RTC rendered judgment granting ZENAIDAs petition, declaring Jason as the lawfully adopted
child of the spouses Dioscoro and ZENAIDA Bobiles.
3. The Republic appealed to the CA. While the case was pending before the CA, the Family Code (FC) took effect
on Aug. 3, 1988.
4. [Feb. 20, 1990] The CA affirmed the RTC decision.
a. The Republic contends that the petition for adoption should be dismissed outright as the same was filed
solely by Zenaida without joining her husband.
b. It also contends that even if the Family Code is applied, the decree of adoption should be granted in
favor of Zenaida only.
Issues/held/ratio
W/N the Family Code should be applied retroactively to the present petition for adoption YES, it should.

[Non-joinder is not a ground for dismissal of an action or special proceeding. The objection of the Republic has also
been raised for the first time on appeal. However, the court still clarifies the Republics misgivings in its assignment
of errors.]

Under the CYWC, a petition may be filed by either of the spouses or by both of them. Under the FC, joint adoption by
husband and wife is mandatory.

Art. 246 of the FC provides for its retroactive application, provided the same does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws.
o
A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will
of the holder. It includes not only legal or equitable title to the enforcement of a demand, but also an
exemption from new obligations created after the right has vested.

Upon Zenaidas filing without joining her husband, her right to file the petition alone and to have the same proceed to
final adjudication was already vested and cannot be prejudiced or impaired by subsequent enactment of a law.
o
The RTC acquired jurisdiction over her petition in accordance with the statute in force at the time of the
commencement of the action.
W/N the decree of adoption should be granted in favor of ZENAIDA only NO, it should be in favor of ZENAIDA
and Dioscoro Bobiles.

Although Dioscoro was not named as a petitioner in the petition for adoption, his Affidavit of Consent annexed to the
petition and expressly made and integral part thereof, shows that Dioscoro himself actually joined his wife in
adopting Jason.

Dioscoros Affidavit and his subsequent confirmatory testimony in open court are sufficient to make him a copetitioner.

In determining whether or not to set aside a decree of adoption, the interests and welfare of the child are of primary
and paramount consideration.
o
The present case should be approached with the inclination to uphold such acts if it is found that there was
substantial compliance with the statute.

The rights conferred by the decree of adoption will be for the best interests of the child, Jason.
o
His adoption was with the consent of his natural parents.
o
A DSWD representative unqualifiedly recommended the approval of the petition.
o
The RTC dispensed with the trial custody especially since Jason had been living with the adopting parents
since infancy.
Petition DENIED.

SANTOS v. ARANZANSO
G.R. No. L-23828
February 28, 1966
BENGZON, J.P., J.
petitioners
Paulina Santos and Aurora Santos
respondent
Gregoria Aranzanso and Demetria Ventura

Villarroya

s
summary

Paulina and Aurora Santos are the adopted children of Simplicio and Juliana Santos. Juliana died
intestate. Simplicio asked to be appointed administrator of her estate. Private respondents (first
cousins of deceased) opposed on the ground that Simplicio and Julianas marriage was void for being
bigamous, and that the adoption decree in favor of Paulina and Aurora was void since it lacked the
consent of their natural parents. SC held that there was evidence of abandonment on the part of the
natural parents, and as such their consent is no longer needed. The consent of their guardian ad litem
was sufficient.

facts of the case

A petition for adoption of Paulina Santos and Aurora Santos was filed by Simplicio Santos and Juliana Reyes in the CFI of
Manila. Paulina Santos was then 17 years old and Aurora Santos, 8 years old.
The petition alleged that the whereabouts of the minors' nearest of kin, particularly their parents, were unknown; that
since the outbreak of the war said minors have been abandoned by their respective parents; and that for years, since their
infancy, said children have continuously been in petitioners' care and custody.
A guardian ad litem Crisanto de Mesa, was thereafter appointed for the minors. Said guardian ad litem gave his written
consent to the adoption. Paulina Santos, being over 14 of age, likewise gave her written consent thereto.
The CFI granted the petition for adoption.
Juliana died intestate and when her estate was being settled, her husband asked to be appointed administrator of the
estate. Private respondents (both first cousins of deceased; Demetria likewise claimed she was the birth mother of Paulina)
opposed the request. They based their opposition on the claim that the marriage of Simplicio to Juliana was void because it
was bigamous and that the adoption of Paulina and Aurora was likewise void for want of written consent of their parents.
The CFI held that an adoption decree cannot be attacked collaterally and that a separate action must be instituted. The
CA reversed and ruled that the adoption was void ab initio for lack of parental consent.
issue
Whether or not the consent of Paulina and Auroras natural parents is required. NO, the consent of their natural
parents is not required when they are found to have abandoned their children. The consent of the guardian ad
litem is sufficient.
Whether or not private respondents could assail in the settlement proceedings the adoption decree in favor of Paulina
and Aurora Santos. NO.
ratio
CONSENT OF NATURAL PARENTS NOT NEEDED WHEN THERE IS ABANDONMENT
Under our law on the matter, consent by the parents to the adoption is not an absolute requisite. If the natural parents
have abandoned their children, consent to the adoption by the guardian ad litem suffices (Rule 100, Old Rules of Court).
Abandonment imports any conduct on the part of the parent which evinces a settled purpose to forgo all parental duties
and relinquish all parental claims to the child. It means neglect or refusal to perform the natural and legal obligations of care
and support which parents owe to their children.
It is stated in the decision of the adoption court, that: From the evidence presented at the hearing it appears that the
petitioners have been married for the past 27 years and have no children of their own. They desire to adopt the minors
Paulina Santos and Aurora Santos, both of whom are and for years have been living under their care and custody; that the
former, since she was barely three months old has already been taken care of by them up to the present time, and the latter
has been cared for since she was only fifteen days old. Paulina Santos is now seventeen years old. . . . Both parents of the
minors have long been unheard from and in spite of diligent efforts of the petitioners to locate them, they could not be found .
The consent to the adoption has been given by the guardian ad litem appointed by the Court.
It can thus readily be seen that although the CFI judgment approving the adoption does not use the word "abandoned,"
its findings sufficiently contain a set of facts and circumstances which truly constitutes a finding of abandonment.
ADOPTION DECREE CANNOT BE COLLATERALLY ATTACKED
An adoption order implies the finding of the necessary facts and the burden of proof is on the party attacking it. While a
judicial determination of some particular fact, such as the abandonment of his next of kin to the adoption, may be essential to
the exercise of jurisdiction to enter the order of adoption, this does not make it essential to the jurisdictional validity of the
decree. The determination must stand until reversed on appeal, and hence cannot be collaterally attacked.
If this were not the rule, the status of adopted children would always be uncertain, since the evidence might not be the
same at all investigations, and might be regarded with different effect by different tribunals, and the adoption might be held
by one court to have been valid, while another court would hold it to have been of no avail.

10

Duncan v CFI
G.R. No. L-30576
petitioners
respondent

Feb. 10, 1976

Esguerra, J.
Robin Francis Radley Duncan and Maria Lucy Christensen
CFI Rizal Branch X presided over by Judge Herminio C. Mariano

s
summary

Petitioners wanted to adopt a child who was given to them by Atty. Velasquez, who in turn
received the child from the mother who refused to be identified. Court disallowed adoption petition on
the ground that consent should be given. Held: Atty. Velasquez is like the guardian of the child whose
mother has abandoned it. Her consent is sufficient.

11

facts of the case

Sps. Duncan filed a petition for the adoption of minor Colin Berry Christensen Duncan. Colin, then only 3 days old was
given to petitioners for them to adopt by Atty. Corazon de Leon Velasquez, who received the infant from the child's unwed
mother who told the former never to reveal her identity because she wanted to get married and did not want to destroy her
future. The mother, who never provided for the maintenance and support of her child, instructed Atty. Corazon de Leon
Velasquez to look for a suitable couple who will adopt the child. Said couple happened to be herein petitioners who later on
had the child baptized, with their names appearing in the records of said baptism as the parents of said child.
In the petition for adoption filed by petitioners, Atty. Velasquez, as the de facto guardian or loco parentis of the child
subject of the adoption petition, gave the written consent in compliance with the consent requirement provided for in Art. 340
of the Civil Code which states that:
The written consent of the following to adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The parents, guardian or person in charge of the person to be adopted.
Learning from the testimony of Atty. Velasquez that the natural mother of the child sought to be adopted was still alive,
the court then pressed her to reveal the identity of said mother, however she refused to do so on the ground that there
existed an attorney and client relationship between them, and that she had been instructed by her client not to reveal the
latter's identity.
Hence, the CFI dismissed the petition for adoption on the ground that the consent given for the same was improper and
falls short of the express requirement of the law.
issue
WON Atty. Corazon de Leon Velasquez, is the proper person required by law to give consent? YES
ratio
Besides the abovementioned Art. 340 of the Civil Code, there also exists another rule regarding consent to adoption
found in Rule 99, Sec. 3 of the Rules of Court, which states that
There shall be filed with the petition a written consent to the adoption by each of its known living parents who is not
an insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian,
or guardian ad litem of the child
The father's consent here is out of the question as the child is illegitimate and unrecognized, while the natural and
unwedded mother, who from the time she gave her child to Atty. Velasquez up to the time of the adoption proceedings, has
not bothered to inquire into the condition of the child, much less to contribute to the livelihood, maintenance and care of the
same, is the antithesis of that described in the law.
It can indubitably established based on the facts that said mother had completely and absolutely abandoned her child;
thus, her consent to the adoption proceedings is not needed and not the one being required by law.
Meanwhile, there clearly appears only one person who could be considered as the guardian exercising patria potestas
over such abandoned child, since there was no guardian ad litem appointed by the court and the child is not in the custody of
an orphan asylum, children's home or any benevolent society. This person is no other than Atty. Corazon de Leon Velasquez
who could, with reason, be called the guardian of said infant. Hence, the consent given by her to the adoption proceedings is
sufficient for the same to be deemed in compliance with the Civil Code and Rules of Court provisions on consent to adoption.
This decision is in greater consonance with just and humane considerations than the CFIs harsh and cruel interpretation of
the law.

12

Cang v. CA
G.R. No. 105308
petitioners
respondent

September 25, 1998

Romero
Ramos
HERBERT CANG
COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO

s
summary

H and W. They got legal separation after W found he was cheating. H left for the US, he married an
American, became a US citizen himself, then got divorced. While in the US, he learned that his children
with W was being adopted so he went back to the Philippines to oppose this. He alleges he did not give
his consent.
SC held that the written consent of the natural parent is indispensable for the validity of the
decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child or that such parent is insane or hopelessly intemperate. The
court may acquire jurisdiction over the case even without the written consent of the parents or one of
the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from
compliance therewith. However, in cases where the father opposes the adoption primarily because his
consent thereto was not sought, the matter of whether he had abandoned his child becomes a proper
issue for determination. The issue of abandonment by the oppositor natural parent is a preliminary
issue that an adoption court must first confront. Only upon failure of the oppositor natural father to
prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be
considered on its merits.
In this case, H was not remiss in his natural and legal obligations of love, care and support for his
children. He maintained regular communication with his wife and children through letters and
telephone. Even sent packages and money to his children.

13

facts of the case

Petitioner Herbert Cang and Anna Marie Clavano were married and begot three children. During the early years of their
marriage, the Cang couples relationship was undisturbed. Not long thereafter, however, Anna Marie learned of her husbands
alleged extramarital affair with a family friend.
Anna Marie filed a petition for legal separation with alimony pendente lite with the then Juvenile and Domestic Relations
Court of Cebu which rendered a decision approving the joint manifestation of the Cang spouses providing that they agreed to
live separately and apart or from bed and board.
Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District
Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of the three minor children
to Anna Marie. He thereafter married an American woman and became an American citizen himself. Eventually, they had a
divorce. He never married again.
Meanwhile, private respondents Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and sister-inlaw of Anna Marie, filed a SpecPro for the adoption of the three minor Cang children before the RTC of Cebu. The petition
bears the signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of
consent, alleging her husband did not comply with his legal obligation to support their children.
Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and filed an opposition
alleging that he could allow anybody to strip him of his parental authority over his beloved children.
RTC granted decree of adoption. CA affirmed.
issue
WON a minor children can be legally adopted without the written consent of a natural parent on the ground that the latter
has abandoned them? (YES, but must prove abandonment. In this case, no sufficient proof.)
ratio
When private respondents filed the petition for adoption on September 25, 1987, the applicable law was the Child and
Youth Welfare Code, as amended by Executive Order No. 91. During the pendency of the petition for adoption or on August 3,
1988, the Family Code which amended the Child and Youth Welfare Code took effect. Article 256 of the Family Code provides
for its retroactivity insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or
other laws. As amended by the Family Code, the statutory provision on consent for adoption provides that the written consent
of the natural parent to the adoption has remained a requisite for its validity. Notably, such requirement is also embodied in
Rule 99 of the ROC.
From the provisions of law, the written consent of the natural parent is indispensable for the validity of the decree of
adoption. Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child or
that such parent is insane or hopelessly intemperate. The court may acquire jurisdiction over the case even without the
written consent of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant
exemption from compliance therewith.
In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption.
Petitioners consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of
the minors for adoption by the natural father.
However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the
matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment by the
oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon failure of the oppositor
natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be
considered on its merits.
This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that
should have elicited a different conclusion on the issue of whether petitioner has so abandoned his children, thereby making
his consent to the adoption unnecessary. n the instant case, records disclose that petitioners conduct did not manifest a
settled purpose to forego all parental duties and relinquish all parental claims over his children as to constitute abandonment.
Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment. While admittedly,
petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of
love, care and support for his children. He maintained regular communication with his wife and children through letters and
telephone. He used to send packages by mail and catered to their whims. Aside from these letters, petitioner also presented
certifications of banks in the U.S.A. showing that even prior to the filing of the petition for adoption, he had deposited
amounts for the benefit of his children.
These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over
these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between petitioner and

14

his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his children and the fact that, as
regards the bank deposits, these were withdrawable by him alone.
ALSO: In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to
travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption appears
to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her children.
The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity,
deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213 of the Family Code
states: . . . in case of legal separation of parents, parental authority shall be exercised by the parent designated by the court.
In awarding custody, 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.
It should be noted, however, that the law only confers on the innocent spouse the exercise of parental authority. Having
custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The
innocent spouse shall have the right to the childs services and earnings, and the right to direct his activities and make
decisions regarding his care and control, education, health and religion.

15

Bobanovic v. Montes
G.R. No. 71370
7 July 1986
J. Alampay
Apo
petitioners Slobodan Bobanovic and Dianne Elizabeth Cunninham Bobanovic
respondents Hon. Sylvia P. Montes, in her capacity as Minister of Social Services and Development
summary The Australian spouses Bobanovic filed a petition for the adoption of Filipino minor child Adam
Christopher. The Makati RTC thus ordered the Ministry of Social Services & Development to conduct a
case study of the child, his natural parents, and the adopting parents. However, the MDSS failed to do
this, so the RTC ordered its Court Social Worker to make the case study. The Court Social Worker
rendered a report recommending favorable action on the petition; on this basis, the RTC granted the
petition for adoption, which attained finality.
When the spouses tried to leave the PH with their newly adopted son, however, the MDSS Minister
Montes refused to issue a travel clearance to Adam Christopher, on the ground that she could not be
assured of the childs well-being and the parents fitness, since the MDSS had been denied the
opportunity to conduct a case study. The Court disagreed, finding that there had been proper
service and publication in a newspaper of general circulation. Neither does the MDSS
allege any error in the Social Workers report to justify its refusal to issue the clearance, aside
from its insistence that it should have been allowed to conduct the case study. The spouses are thus
entitled to the writ of mandamus.

16

facts of the case

In November 1984, petitioner spouses Bobanovic filed a petition before the Makati RTC to adopt the minor Adam
Christopher Sales. Slobodan and Dianne Bobanovic were both Australian citizens residing permanently in Melbourne,
Australia, and temporarily in Bel-Air, Makati.
Upon the filing of the petition, the Makati RTC issued an order setting the case for hearing. The order also directed that
first, it be published in a newspaper of general circulation once a week for three consecutive weeks, and second, that a copy
thereof be served upon the Ministry of Social Services and Development, such that it can conduct a social case
study of Adam Christopher as well as his natural and adopting parents, and submit a report and recommendation on
the matter at least a week before the date of the hearing. The RTC also directed the MSSD to intervene in the childs behalf if
it finds that the petition should be denied.
At the initial hearing, however, the MSSD failed to comply with the order: no case study was conducted
regarding Adam Christopher and his natural and adopting parents; neither did the Ministry submit any report
or recommendation or at all intervene in the case.
Due to the MSSDs inaction, a social worker assigned to the Makati RTC conducted the requisite case study, resulting in a
report recommending favorable action on the petition for adoption.
Consequently, in January 1985, judgment was rendered granting the adoption of Adam Christopher. The RTC
found, based on the evidence presented, that petitioners have been certified to be of good moral character, without any
derogatory records in the Philippines as well as in their country. They are both physically and mentally fit to adopt, and, as
Australian citizens, are allowed by the laws of their country to adopt a Filipino child. Petitioners have cared for and love the
child as their own, and are aware of the responsibilities attached to the petition. In total, they were found to be physically,
emotionally, and financially capable to rear the child.
Since no appeal was brought, a certificate of finality of the order granting the adoption was issued.
With Adam Christopher now in tow, petitioners applied for a travel clearance with the MSSD in order that they may travel
to Australia with their adopted son. However, respondent Minister declined to issue the travel clearance, on the
ground that prior to the initial hearing of the adoption case, she was allegedly not furnished with a copy of the
petition for adoption nor with the court order requiring the MSSD to make a case study. She claims that the MSSD
was denied the opportunity to conduct the case study as required by law, and thus, she had no basis to determine whether
petitioners met the eligibility criteria set forth in the Australian Procedures Relating to Placement of Children from Other
Countries for Adoption. Since she was not assured that the adopted Filipino child would be in good hands, she
concluded that mandamus would not lie to compel her to issue the travel clearance requested.
Despite this, the spouses Bobanovic filed a petition for mandamus, praying that respondent be directed to issue the
travel clearance to their son Adam Christopher. In response, respondent Minister appears to insist that the MSSD is
the only agency authorized under the law to conduct the case study, and no adoption case can be properly
acted upon by the courts if no referral to the MSSD is made of the case for study, report, and recommendation.
issue
Whether the MSSD had validly refused to issue a travel clearance to the spouses Bobanovic, on the ground that it had been
unable to conduct a case study during the adoption proceedings. NO. There had been proper service and publication
of the order, precluding the MSSDs argument that it had been deprived of the right to intervene. Neither does
the MSSD allege that the Court Social Workers report was erroneous, incorrect, or faulty in any way. In any
case, it would have been more expeditious to just verify the Social Workers report.
ratio
(1) The order had been duly served upon MSSD and published in a newspaper of general circulation, precluding the
respondent Ministers claim that the MSSD had been deprived of its right to intervene.
The MSSD offers only its own certification that it did not receive a copy of the petition and the order. But the Makati RTC
had clearly passed upon the Ministers claim in its decision, stating: The records show that the MSSD was served a
copy of the petition which was published in the Filipino Times for 3 consecutive weeks, through the Court
Social Worker, who is authorized to receive and act for MSSD xxx. Hence, MSSDs certification does not suffice to
disturb the lower courts factual findings.
(2) The MSSD does not allege that the Court Social Workers report was erroneous, incorrect, or faulty in any
way.
The MSSD did not appeal the order granting the adoption. Moreover, in all its pleadings, the MSSD has not once
insinuated that the Social Workers report was in any way erroneous, incorrect or faulty. Respondent seems only to stubbornly
insist and maintain that the prerogative to make a case study pertains exclusively to the MSSD. Neither has it shown any
specific fact or circumstance warranting the denial of the travel clearance. Absent any proof that prejudice would be caused
to the Adam Christopher if he joins his adoptive parents, the MSSD should be faulted for declining to issue the travel
clearance.
(3) The MSSD should have just verified the correctness of the case study prepared and submitted by the Court
Social Worker. This could have been done in a matter of days, instead of causing petitioners to resort to judicial relief.
In closing, the Court reminded the respondent of its ruling in Malkinsons v. Agrava, where it stated:
xxx [A]doption statutes, being humane and salutary, hold the interest and welfare of the child to be of
paramount consideration...are designed to provide homes, parental care and education for unfortunate,

17

needy or orphaned children and give them the protection of society and family in the person of the adopter
against well as to allow childless couples or persons to experience the joys of parenthood and give them
legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every
reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives
of the law.
Hence, courts should extend the widest latitude of sympathy and assistance in matters related to the adoption of children
or to acts designed to provide homes, love, care, and education for unfortunate children.
The writ of mandamus is hereby granted, and the respondent Minister is directed to issue the requisite
travel clearance to Adam Christopher Bobanovic.

18

IN RE ADOPTION OF EDWIN VILLA

G.R. No. L-22523
29 Sep 1967
Angeles, J.
petitioners
LUIS E. SANTOS JR., AND EDIPOLA V. SANTOS
respondent
REPUBLIC OF THE PHILPPINES

Gan

s
summary

Petitioner-spouses wish to adopt the minor Edwin Villa. The petitioner-wife happens to be the
legitimate sister of Edwin. The lower court denied the adoption ruling that said adoption will result in
an incongruous situation or a dual relationship between the parties.
The SC held that such adoption is not prohibited by law. To say that adoption should not be
allowed when the adopted and the adopted are related to each other, except in these cases
enumerated in NCC 338, is to preclude adoption among relatives no matter how far removed or in
whatever degree that relationship might be, which in our opinion is not the policy of the law. The
interest and welfare of the child to be adopted should be of paramount consideration. Adoption
statutes, being humane and salutary, and designed to provide homes, care and education for
unfortunate children should be construed so as to encourage the adoption of such children by person
who can properly rear and educate them.

facts of the case

The petitioner-spouses filed before the court praying
that the minor Edwin Villa, 4 years old, be declared
their son by adoption.
-

Petitioners are both 32 years old, Filipinos residing in

the City of Manila. Married in 1957 and have
maintained a conjugal home of their own; no child of
their own blood; not convicted of a crime involving
moral turpitude. Luis is lawyer and Edipola is a nurse.

Edwin Villa is a child of Francisco Villa and Florencia

Mendoza who are the common parents of the
petitioner-wife Edipola Villa Santos and the minor. (in
other words, Edwin and Edipola are siblings)

Edwin was a sickly child since birth. Due to his

impairing health, his parents entrusted him to the
petitioners who reared and brought him up for the
years thereafter, and as a result, there developed
between the petitioners and the child, a deep hand
profound love for each other.

Trial Court: dismissed the petition.

The adoption will result in an incongruous

situation where the minor Edwin Villa, a
legitimate brother of the petitioner-wife, will
also be her son.

(6) Any person who has been convicted of a crime

involving moral turpitude, when the penalty imposed was six
months' imprisonment or more.
Article 338. The following may be adopted:
(1) The natural child, by the natural father or mother;
(2) Other illegitimate children, by the father or mother;
(3) A step-child, by the step-father or step-mother.
Article 339. The following cannot be adopted:
(1) A married person, without the written consent of the
other spouse;
(2) An alien with whose government the Republic of the
Philippines has broken diplomatic relations;
(3) A person who has already been adopted.
-

NCC 335 enumerates those persons who may not

adopt, and it has been shown that petitioners are not
among those prohibited from adopting.

NCC 339 names those who cannot be adopted, and

the minor child whose adoption is under
consideration, is not one of those excluded by the
law.

NCC 338, on the other hand, allows the adoption of a

natural child by the natural father or mother, of other
illegitimate children by their father or mother, and of
a step-child by the step-father or step-mother. This
last article is, of course, necessary to remove all
doubts that adoption is not prohibited even in these
cases where there already exist a relationship of
parent and child between them by nature.

To say that adoption should not be allowed when the

adopted and the adopted are related to each other,
except in these cases enumerated in NCC 338, is to
preclude adoption among relatives no matter how far
removed or in whatever degree that relationship
might be, which in our opinion is not the policy of the
law.

issue
Whether an elder sister may adopt a younger brother.
YES.
Ratio
-

There is no provision of law that prohibits relatives by

blood or by affinity from adopting one another.

Article 335. The following cannot adopt:

(1)
Those
who
have
legitimate,
legitimated,
acknowledged natural children, or natural children by legal
fiction;
(2) The guardian, with respect to the ward, before the
final approval of his accounts;
(3) A married person, without the consent of the other
spouse;
(4) Non-resident aliens;
(5) Resident aliens with whose government the Republic
of the Philippines has broken diplomatic relations;

With respect to the objection that the adoption in

this case will result in a dual relationship between the
parties, that the adopted brother will be also the son
of the adopting elder sister
This fact alone should not prevent the adoption. One
is by nature, while the other is by fiction of law.

19

The relationship established by adoption is limited to

the adopting parents and does not extend to their
other relatives, except as expressly provided by law.

Thus, the adopted child cannot be

considered as a relative of the ascendants
and collaterals of the adopting parents, nor
of the legitimate children which they may
have after the adoption except that the law

imposes certain impediments to marriage

by reason of adoption.
-

Similar dual relationship also result under our law on

marriage when persons who are already related, by
blood or by affinity, marry each other. But as long as
the relationship is not within the degrees prohibited
by
the
law,
such
marriage
are
allowed,
notwithstanding the resulting dual relationship.

20

IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES
G.R. No. 79955
petitioners
respondents
summary

January 27, 1989

Padilla, J.
Gonzales
NELSON L. CERVANTES and ZENAIDA CARREON CERVANTES, petitioners
GINA CARREON FAJARDO and CONRADO FAJARDO, respondents
Angelie Cervantes (then Angelie Fajardo) is the child of the respondents (Conrado and Gina). They gave
her up for adoption to Ginas sister and brother in law (Cervantes spouses). RTC granted the petition for
adoption filed by the Cervantes spouses and decreed, inter alia, the termination of the parental authority of
her natural parents. Sometime later, the Cervantes spouses received demands from the respondents to pay
150k otherwise; they would get back their child. The Cervantes spouses did not heed the demand. As a
result, while the spouses were at work, Gina took Angelie from her yaya and brought the child to Paranaque.
She refused to return the child unless paid by the Cervantes spouses (at first, she gave as excuse her lack of
desire in the first place to give up the child for adoption + non-explanation of the Affidavit of consent to the
adoption she earlier signed). The Cervantes Spouses filed a petition for Writ of Habeas Corpus.
SC: The minor has been legally adopted by petitioners with the full knowledge and consent of
respondents. A decree of adoption has the effect, among others, of dissolving the authority vested in natural
parents over the adopted child, except where the adopting parent is the spouse of the natural parent of the
adopted, in which case, parental authority over the adopted shall be exercised jointly by both spouses. The
adopting parents have the right to the care and custody of the adopted child and exercise parental authority
and responsibility over him.

21

facts of the case

Angelie Ann Cervantes was born on 14 February 1987 to Conrado Fajardo and Gina Carreon (Respondents), who are
common-law husband and wife.

Respondents offered the child for adoption to Gina Carreon's sister and brother-in-law, (petitioners) Zenaida CarreonCervantes and Nelson Cervantes, spouses, who took care and custody of the child when she was barely two (2) weeks old.
o
An Affidavit of Consent to the adoption of the child by herein petitioners, was also executed by Gina Carreon on 29
April 1987.

Petition for adoption was filed by the Cervantes spouses over the child (then known as Angelie Anne Fajardo) before the RTC
Rizal.

RTC granted the petition.

o
RTC ordered that the child be "freed from parental authority of her natural parents as well as from legal obligation
and maintenance to them and that from now on shall be, for all legal intents and purposes, known as Angelie Anne
Cervantes, a child of herein petitioners and capable of inheriting their estate ."

Sometime in March or April 1987, the adoptive parents, Cervantes spouses, received a letter from the respondents
demanding to be paid the amount of P150,000.00, otherwise, they would get back their child. The Cervantes spouses
refused to accede to the demand.

On 11 September 1987, while the Cervantes spouses were out at work, Gina Carreon took the child from her "yaya" at the
Cervantes residence in Angono, Rizal, on the pretext that she was instructed to do so by her mother. Gina Carreon brought
the child to her house in Paraaque.

Petitioners demanded the return of the child, but Gina Carreon refused, saying that she had no desire to give up her child for
adoption and that the affidavit of consent to the adoption she had executed was not fully explained to her. She sent word
that she will, however, return the child to the petitioners if she were paid the amount of P150,000.00.

The Cervantes filed a petition for a writ of Habeas Corpus with this Court over the person of the minor Angelie Anne
Cervantes.

In a resolution, dated 5 October 1987, SC resolved to issue the writ returnable to the Executive Judge, Regional Trial Court of
Pasig. Said Judge was directed to hear the case and submit his report and recommendation to the Court.

On 3 December 1987, said Executive Judge, Regional Trial Court of Pasig submitted to the Court his report and
recommendation, also dated 3 December 1987.

Felisa Tansingco, the social worker who had conducted the case study on the adoption and submitted a report thereon to RTC
of Rizal in the adoption case, testified before the Executive Judge, RTC Pasig in connection with the present petition. She
declared that she had interviewed respondent Gina Carreon on 24 June 1987 in connection with the contemplated adoption
of the child. During the interview, Gina manifested to the social worker her desire to have the child adopted by the
petitioners.
Issue Who between the respondents and petitioners can have lawful custody over the person of Angelie CervantesPetitioners.
ratio

In all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The provision
that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds compelling
reasons to rule otherwise. In all controversies regarding the custody of minors, the foremost consideration is the moral,
physical and social welfare of the child concerned, taking into account the resources and moral as well as social standing of
the contending parents.

It is undisputed that respondent Conrado Fajardo is legally married to a woman other than respondent Gina Carreon, and his
relationship with the latter is a common-law husband and wife relationship. His open cohabitation with Gina Carreon will not
accord the minor that desirable atmosphere where she can grow and develop into an upright and moral-minded person.

Besides, respondent Gina Carreon had previously given birth to another child by another married man with whom she lived
for almost three (3) years but who eventually left her and vanished. For a minor (like Angelie Anne C. Cervantes) to grow up
with a sister whose "father" is not her true father, could also affect the moral outlook and values of said minor.

Upon the other hand, petitioners who are legally married appear to be morally, physically, financially, and socially capable of
supporting the minor and giving her a future better than what the natural mother (Gina Carreon), who is not only jobless but
also maintains an illicit relation with a married man, can most likely give her.

Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A decree of
adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted child, except
where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental authority over the
adopted shall be exercised jointly by both spouses. The adopting parents have the right to the care and custody of the
adopted child and exercise parental authority and responsibility over him.
Held

The custody and care of the minor Angelie Anne Cervantes are hereby granted to petitioners to whom they properly belong,
and respondents are ordered (if they still have not) to deliver said minor to the petitioners immediately upon notice hereof This
resolution is immediately executory.

22

Sanchez v. Zulueta
G.R. No. L-45616
May 16, 1939
C.J. Avancena
Ortiz (for Leynes)
petitioners FELICIANO SANCHEZ, Petitioner-Appellant
respondents FRANCISCO ZULUETA, Judge of First Instance of Cavite,
JOSEFA DIEGO and MARIANO SANCHEZ, assisted by his mother,
JOSEFA DIEGO, as guardian ad litem, respondents-appellees.
summary Josefa filed a complaint for support against Feliciano. She asked the court to grant Josefa and her son,
Mario, support pendente lite. Trial court granted Josefas request, without acceding to the petition of
Feliciano to adduce evidence. CA affirmed the trial court. SC held that the petitioner should have
presented evidence. Adultery is a valid defense against support. As to the child, it is also a defense
that he is the fruit of such adulterous relations. It is not necessary to go fully into the merits of the
case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem
sufficient to enable it to justly resolve the application, in view of the merely provisional character of
the resolution to be entered.

23

facts of the case

Josefa and Feliciano were married and had one child, Mario. Josefa filed a complaint for support against the husband, alleging
that the latter refused and still refuses to support Josefa and Mario. She also alleged that Feliciano abandoned them and now
refuses to live with them.
Josefa asked the court to order the defendant to give support pendente lite worth PhP 50/month
Defense of Feliciano: Josefa abandoned the conjugal home, without his knowledge or consent, because she committed
adultery with one Macario Sanchez. Feliciano alleges that Mario was the fruit of this adulterous relationship.
CFI: granted the request for support, without acceding to the petition of Feliciano to adduce evidence
CA: affirmed the CFI ruling
issue
WON CA committed an error when it did not allow Feliciano to present evidence [YES]
ratio
The CA erred in not allowing the defendant to present his evidence for the purpose of determining whether it is sufficient
prima facie to overcome the application. Adultery on the part of the wife is a valid defense against an action for support
according to Quintana v. Lerma. As to the child, it is also a defense that he is the fruit of such adulterous relations. This
defense should be established, and not merely alleged. It is not necessary to go fully into the merits of the case, it
being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly
resolve the application, in view of the merely provisional character of the resolution to be entered.
If the defendant has a valid defense which calls for proof, and he asks for an opportunity to present evidence, it is error to
deny him this opportunity.
The decision rendered by the Court Appeals is reversed, and it is ordered that the petitioner be given an opportunity to
present evidence in support of his defense against the application for support pendente lite, to the extent which the court
determine, without special pronouncement as to the costs. So ordered.

24

Reyes v. Ines-Luciano
G.R. No. L-48219
28 Feb 1979
petitioners
Manuel Reyes
respondent
Hon. Leonor Ines-Luciano

Fernandez

Trance

s
summary

Wife filed an action for legal separation because husband attempted to kill her. Judge granted
support pendente lite. Husband opposed, saying that wife is not entitled because she is an adulteress.
SC held that allegation of adultery will not affect the right to support pendente lite, as the fact of
adultery must be supported by evidence. He still has an opportunity to defeat the action by presenting
evidence when the case is tried on the merits. Since the wife asked for support to be taken from the
conjugal property, it is doubtful that the fact of adultery will defeat her right to support pendente lite.

25

facts of the case

Celia Ilustre-Reyes, filed in the Juvenile and Domestic Relations Court of Quezon City a complaint dated June 3, 1976
against her husband, Manuel J. C. Reyes, for legal separation on the ground that the defendant had attempted to kill plaintiff.
It is alleged that on March 10, 1976, the petitioner attacked his wife, pummeled her with fist blows that floored her, held
her head and with intent to kill, bumped it several times against the cement floor and when she ran upstairs to her father for
protection, the petitioner pushed her at the stairway of thirteen (13) flights and she fell sliding to the ground floor and
defendant gave her a strong swing at her abdomen which floored her half unconscious and were it not for wife's father,
petitioner would have succeeded in killing her.
Wife asked for support pendente lite for her and her three children. The defendant, petitioner herein, opposed the
application for support pendente lite on the ground that his wife had committed adultery with her physician.
The application for support pendente lite was set for hearing and submitted for resolution on the basis of the pleadings
and the documents attached thereto by the parties.
The respondent Judge issued an order dated March 15, 1977 granting plaintiff's prayer for alimony pendente lite in the
amount of P5,000.00 a month commencing from June 1976.
When petitioner filed an MR the judge reduced the amount from 5k to 4k.
Reyes filed a petition for certiorari in the Court of Appeals asking that the order granting support pendente lite be set
aside. CA found no grave abuse of discretion on the part of Judge Ines-Luciano.
issue
Whether wife is entitled to support pendente lite despite the allegation of adultery. YES.
ratio
It is true that the adultery of the wife is a defense in an action for support however, the alleged adultery of wife must be
established by competent evidence. The allegation that the wife has committed adultery will not bar her from the right
receive support pendente lite. Adultery is a good defense and if properly proved and sustained will defeat the action.
Petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife when the action for legal
separation is heard on the merits before the Juvenile and Domestic Relations Court of Quezon City.
However, the "private respondent was not asking support to be taken from petitioner's personal funds or wherewithal, but
from the conjugal property. It is, therefore, doubtful whether adultery will affect her right to alimony pendente lite.
The amount of support pendente lite was reduced to P4,000.00 inasmuch as the children are in the custody of the
petitioner and are being supported by him.
The respondent judge acted with due deliberation before fixing the amount of support pendente lite in the amount of
P4,000.00 a month.
In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the
case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to
justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered.

26

Lerma v. CA
G.R. No. L-33352
petitioners
respondent

December 20, 1974

C.J. Makalintal
Ortiz
TEODORO E. LERMA, petitioner,
THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents.

s
summary

Wife filed for legal separation and requested for support pendente lite. The defense of the
husband was that she is not entitled to support pendente lite because he had already filed a case for
adultery against the wife. The CFI granted the request for support pendente lite. CA upheld the CFI
citing Article 292 of the Civil Code. The SC reversed the CA and said that the wife had no right to
support pendente lite, whether from the separate property of the husband or the conjugal property,
because she is not an innocent spouse, having been already convicted of adultery with the CFI. The
right to separate support or maintenance, even from the conjugal partnership property, presupposes
the existence of a justifiable cause for the spouse claiming such right to live separately.

27

facts of the case

Petitioner Lerma (H) and respondent Diaz (W) were married on May 19, 1951.
Respondent wife filed a complaint against her husband for legal separation with the CFI of Rizal.

With an urgent petition for support pendente lite for her and their youngest son Gregory

Grounds: Concubinage and attempt against her life

Defense of husband regarding the claim for support: Husband already filed a case against the wife for adultery
CFI granted the application for support pendente lite. CA affirmed the order of the CFI
issue
WON adultery is a good defense against the wifes claim for support pendente lite [YES]
ratio
The Supreme Court in the case of Quintana v. Lerma that adultery is a good defense. This ruling was reiterated in
subsequent cases.
The Court of Appeals, in upholding the lower court, relied on Article 292 1 of the Civil Code. It held that while adultery may
be a defense in an action for personal support, that is, support of the wife by the husband from his own funds, it is not a
defense when the support is to be taken from the conjugal partnership property.
The SC does not agree that the distinction of source of funds is material in this case.

Article 292 is not in itself the source of the legal right to receive support. It merely states that the support, not
only of the spouses but also of the children, shall be taken from the conjugal property during the pendency of the
legal separation proceeding. It does not preclude the loss of such right in certain cases

Article 292 contemplates the pendency of a court action. For if the action is shown to be groundless the mere
filing thereof will not necessarily set Article 292 in operation. The probable failure of the wife's suit for legal
separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the CFI.
Thus, she cannot claim support pendent lite. Otherwise, all that an erring spouse has to do to circumvent such
defense would be to file a suit for legal separation no matter how groundless.
The right to separate support or maintenance, even from the conjugal partnership property, presupposes
the existence of a justifiable cause for the spouse claiming such right to live separately. A petition in bad faith
cannot be considered as basis for the granting of separate support. Under Article 303 of the same Code, the obligation to give
support shall cease "when the recipient, be he a forced heir or not, has committed some act which gives rise to
disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for
legal separation." The loss of the substantive right to support in such a situation is incompatible with any claim for support
pendente lite.

1 ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property.
After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation,
the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order.

28

Canonizado v. Benitez
G.R. No. 72746
May 7, 1987
Cruz
Ramos
petitioners BERNARDA S. CANONIZADO
respondents HON. REGINA ORDOEZ BENITEZ, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH XLVII, MANILA
and ATTY . CESAR R. CANONIZADO
summary H and W eventually separated where W got judgment (in 1968) in her favor in CA saying H should
support her. There were several compromises made re the amount of support. However, H still failed
to give the support to her and to their children. In 1976, W finally filed a motion for the issuance of a
writ of execution for the judgment of support (support in arrears and current support). H claims it was
already barred by prescription (cant be obtained thru motion since already more than 5 years)
SC held (1 arrears) notwithstanding the lapse of the five-year period provided for in Rule 39, Section
6 of the ROC, she can still enforce the support in arrears by a motion for a writ of execution,
because a judgment for support does not become dormant and the five-year period for executing it by
motion does not apply thereto. Furthermore, since the obligation is a continuing one, the court never
loses jurisdiction to enforce the same.
(2 current) However, respondent can rightfully file a motion to oppose the payment of current
support or to terminate the demandability of the same for the time being, since he alleges and it
appears undisputed that herein petitioner became a member of the bar sometime in 1967 and has
long been an employee of the Central Bank of the PH, even before she became a lawyer. When any of
the above circumstances occurs, the support stops since the recipient no longer needs it for
subsistence. A judgment for support is never final in the sense that not only can its amount be subject
to increase or decrease but its demandability may also be suspended or re-enforced when appropriate
circumstances exist.

29

facts of the case

FIRST CASE

On September 27, 1968, the Court of Appeals rendered a decision which mandated the husband Cesar to give
support to his wife at P100 per month. The decision became final and executory on January 21, 1969.

On July 11, 1973, the petitioner and the respondent entered into an agreement 2 for the support of the wife and
their child.

On February 16, 1976, the petitioner filed a motion for execution and contempt of court, praying that a writ of
execution be issued for P17,200.00 in her favor and P16,150.00 in favor of Christina. On July 14, 1976, the lower
court ordered the issuance of a writ of execution for the collection of the amounts of P16,150 and P17,200 and
for the calling of the case for respondent to show cause why he should not be found in contempt of court for
failure to pay the arrears in support.

On July 22, 1976, a writ of execution was issued. Enforcement of this writ, however, was not pressed by the
petitioner because on August 3, 1976, she and the respondent entered into an agreement accommodating
private respondents shortcomings.

On April 14, 1977, petitioner filed a motion for an alias writ of execution based on the original writ issued on July
22, 1976.
o
the respondent judge denied the motion for issuance of an alias writ of execution on the ground that "the
decision of the Court of Appeals dated September 27, 1968 became final and executory on January 21,
1969, or 7 years and 5 months had elapsed prior to the filing of plaintiffs motion for issuance of writ of
execution on July 1, 1976; that, that being the case, the judgment may no longer be executed by Motion
(Sec. 6, Rule 39 of the Rules of Court); and that Christina, having attained the age of majority on October
6, 1967 and who does not appear to be suffering from any incapacity, may take the necessary action
herself to collect the indebtedness of her father to her." Petitioner filed MR but was denied.

On November 21, 1978, the petitioner filed a petition for mandamus with preliminary mandatory injunction
praying that an alias writ of execution be issued based on the writ of execution issued on July 22, 1976.
SECOND CASE (CURRENT SUPPORT)

Meanwhile, on January 12, 1982, the petitioner filed with the respondent court a motion to require the
respondent to pay current support beginning February, 1978 based on the decisions of September 27, 1968 and
January 21, 1969.
o
Respondent filed an opposition to said motion on the ground that his obligation to support has
terminated. Subsequently, the respondent filed a motion to terminate support.

On July 5, 1982, the petitioner filed another petition for mandamus with preliminary mandatory injunction
praying that the respondent judge be ordered to act on petitioners motion for current support and further, to be
enjoined from hearing the motion for termination of support.
issue
WON the respondent judge can be compelled by mandamus
1. to issue an alias writ of execution for the payment of arrearages in support (YES)
2. to act on the petitioners motion for payment of current support
ratio
1.

It is essential to the issuance of the writ of mandamus that the plaintiff should have a clear right to the thing
demanded and it must be the imperative duty of the defendant to perform the act required.
In the case at bar, although petitioner obtained the favorable judgment on January 21, 1969, she can still enforce the
same by a motion for a writ of execution, notwithstanding the lapse of the five-year period provided for in Rule 39,
Section 6 of the ROC because a judgment for support does not become dormant and the five-year period for
executing it by motion does not apply thereto. Furthermore, since the obligation is a continuing one, the court never
loses jurisdiction to enforce the same.
While the records show that a series of compromise agreements were entered into by and between petitioner and
respondent, the latter inspite of his solemn accord never made any effort to update his payment of arrears in support
of the petitioner which have long been overdue. He only complied with the payment of current support up to June,

2 " xxxx2.The total arrears in support payable to Mrs. Bernarda Canonizado as of December, 1972 is determined at P17,200.00. A moratorium of payment will be observed on
this amount.
"3.
On or before July 31, 1973, Mr. Canonizado will deposit the amount of P700 covering support from January to July, 1973. Henceforth, current support of P100 will
be deposited within the first ten (10) days of every month punctually.
"4.
At any time that Mr. Canonizado will receive a sizeable income, payment on the arrears in support of P17,200.00 will be made partially or in full, depending on the
income received.
"5.
At any time that Mr. Canonizado should fail to remit current support for four (4) consecutive months then the total arrears in support will be immediately due and
demandable.
"6.
Mr. Canonizado also agrees that upon receipt of an income, he will liquidate the unpaid support due their daughter Christina, the same to be given to Bernarda
Canonizado."

30

1977. A judicial compromise may be enforced by a writ of execution. If a party fails or refuses to abide by the
compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original
demand.
2.

"Art. 303.
The obligation to give support shall also cease:
xx
(3)
When the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his
fortune in such a way that he no longer needs the allowance for his subsistence;"
When any of the above circumstances occurs, the support stops since the recipient no longer needs it for
subsistence. It does not mean, however, that the obligation to give or the right to ask for support also ceases
permanently because the lack of a need for it may only be temporary. In other words, the above circumstances do
not affect the right to support between spouses but only the action to make it demandable, such right being born
from the law and created as such by the marriage tie. It subsists throughout the period that the marriage subsists.
In the instant petition the respondent can rightfully file a motion to oppose the payment of current support or to
terminate the demandability of the same for the time being, since he alleges and it appears undisputed that herein
petitioner became a member of the bar sometime in 1967 and has long been in the employ of the Central Bank of
the Philippines, even before she became a lawyer. It is not necessary to file a separate action for a suspension of
current support. The matter of determining whether or not petitioner is entitled to support up to the present is
subject to the presentation of evidence both by the petitioner and the respondent and is for the lower court to
decide. The respondent judge, therefore, cannot be compelled by mandamus to order respondent to pay current
support when the latter alleges that a ground exists for the suspension of such obligation. A judgment for support is
never final in the sense that not only can its amount be subject to increase or decrease but its demandability may
also be suspended or re-enforced when appropriate circumstances exist.

31

Canonizado v. Benitez
G.R. No. 72746
May 7, 1987
Cruz
Ramos
petitioners
BERNARDA S. CANONIZADO
respondent
HON. REGINA ORDOEZ BENITEZ, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH XLVII,
MANILA and ATTY . CESAR R. CANONIZADO
summary
H and W eventually separated where W got judgment (in 1968) in her favor in CA saying H should
support her. There were several compromises made re the amount of support. However, H still failed
to give the support to her and to their children. In 1976, W finally filed a motion for the issuance of a
writ of execution for the judgment of support (support in arrears and current support). H claims it was
already barred by prescription (cant be obtained thru motion since already more than 5 years)
SC held (1 arrears) notwithstanding the lapse of the five-year period provided for in Rule 39,
Section 6 of the ROC, she can still enforce the support in arrears by a motion for a writ of execution,
because a judgment for support does not become dormant and the five-year period for executing it by
motion does not apply thereto. Furthermore, since the obligation is a continuing one, the court never
loses jurisdiction to enforce the same.
(2 current) However, respondent can rightfully file a motion to oppose the payment of current
support or to terminate the demandability of the same for the time being, since he alleges and it
appears undisputed that herein petitioner became a member of the bar sometime in 1967 and has
long been an employee of the Central Bank of the PH, even before she became a lawyer. When any of
the above circumstances occurs, the support stops since the recipient no longer needs it for
subsistence. A judgment for support is never final in the sense that not only can its amount be subject
to increase or decrease but its demandability may also be suspended or re-enforced when appropriate
circumstances exist.

32

facts of the case

FIRST CASE

On September 27, 1968, the Court of Appeals rendered a decision which mandated the husband Cesar to give
support to his wife at P100 per month. The decision became final and executory on January 21, 1969.

On July 11, 1973, the petitioner and the respondent entered into an agreement 3 for the support of the wife and
their child.

On February 16, 1976, the petitioner filed a motion for execution and contempt of court, praying that a writ of
execution be issued for P17,200.00 in her favor and P16,150.00 in favor of Christina. On July 14, 1976, the lower
court ordered the issuance of a writ of execution for the collection of the amounts of P16,150 and P17,200 and
for the calling of the case for respondent to show cause why he should not be found in contempt of court for
failure to pay the arrears in support.

On July 22, 1976, a writ of execution was issued. Enforcement of this writ, however, was not pressed by the
petitioner because on August 3, 1976, she and the respondent entered into an agreement accommodating
private respondents shortcomings.

On April 14, 1977, petitioner filed a motion for an alias writ of execution based on the original writ issued on July
22, 1976.
o
the respondent judge denied the motion for issuance of an alias writ of execution on the ground that "the
decision of the Court of Appeals dated September 27, 1968 became final and executory on January 21,
1969, or 7 years and 5 months had elapsed prior to the filing of plaintiffs motion for issuance of writ of
execution on July 1, 1976; that, that being the case, the judgment may no longer be executed by Motion
(Sec. 6, Rule 39 of the Rules of Court); and that Christina, having attained the age of majority on October
6, 1967 and who does not appear to be suffering from any incapacity, may take the necessary action
herself to collect the indebtedness of her father to her." Petitioner filed MR but was denied.

On November 21, 1978, the petitioner filed a petition for mandamus with preliminary mandatory injunction
praying that an alias writ of execution be issued based on the writ of execution issued on July 22, 1976.
SECOND CASE (CURRENT SUPPORT)

Meanwhile, on January 12, 1982, the petitioner filed with the respondent court a motion to require the
respondent to pay current support beginning February, 1978 based on the decisions of September 27, 1968 and
January 21, 1969.
o
Respondent filed an opposition to said motion on the ground that his obligation to support has
terminated. Subsequently, the respondent filed a motion to terminate support.

On July 5, 1982, the petitioner filed another petition for mandamus with preliminary mandatory injunction
praying that the respondent judge be ordered to act on petitioners motion for current support and further, to be
enjoined from hearing the motion for termination of support.
issue
WON the respondent judge can be compelled by mandamus
3. to issue an alias writ of execution for the payment of arrearages in support (YES)
4. to act on the petitioners motion for payment of current support
ratio
3. It is essential to the issuance of the writ of mandamus that the plaintiff should have a clear right to the thing
demanded and it must be the imperative duty of the defendant to perform the act required.
In the case at bar, although petitioner obtained the favorable judgment on January 21, 1969, she can still enforce the
same by a motion for a writ of execution, notwithstanding the lapse of the five-year period provided for in Rule 39, Section 6
of the ROC because a judgment for support does not become dormant and the five-year period for executing it by motion
does not apply thereto. Furthermore, since the obligation is a continuing one, the court never loses jurisdiction to enforce the
same.
While the records show that a series of compromise agreements were entered into by and between petitioner and
respondent, the latter inspite of his solemn accord never made any effort to update his payment of arrears in support of the
petitioner which have long been overdue. He only complied with the payment of current support up to June, 1977. A judicial
3 " xxxx2.The total arrears in support payable to Mrs. Bernarda Canonizado as of December, 1972 is determined at P17,200.00. A moratorium of payment will be observed on
this amount.
"3.
On or before July 31, 1973, Mr. Canonizado will deposit the amount of P700 covering support from January to July, 1973. Henceforth, current support of P100 will
be deposited within the first ten (10) days of every month punctually.
"4.
At any time that Mr. Canonizado will receive a sizeable income, payment on the arrears in support of P17,200.00 will be made partially or in full, depending on the
income received.
"5.
At any time that Mr. Canonizado should fail to remit current support for four (4) consecutive months then the total arrears in support will be immediately due and
demandable.
"6.
Mr. Canonizado also agrees that upon receipt of an income, he will liquidate the unpaid support due their daughter Christina, the same to be given to Bernarda
Canonizado."

33

compromise may be enforced by a writ of execution. If a party fails or refuses to abide by the compromise, the other party
may either enforce the compromise or regard it as rescinded and insist upon his original demand.
4. "Art. 303.
The obligation to give support shall also cease:
xx
(3) When the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his fortune
in such a way that he no longer needs the allowance for his subsistence;"
When any of the above circumstances occurs, the support stops since the recipient no longer needs it for subsistence. It
does not mean, however, that the obligation to give or the right to ask for support also ceases permanently because the lack
of a need for it may only be temporary. In other words, the above circumstances do not affect the right to support between
spouses but only the action to make it demandable, such right being born from the law and created as such by the marriage
tie. It subsists throughout the period that the marriage subsists.
In the instant petition the respondent can rightfully file a motion to oppose the payment of current support or to
terminate the demandability of the same for the time being, since he alleges and it appears undisputed that herein petitioner
became a member of the bar sometime in 1967 and has long been in the employ of the Central Bank of the Philippines, even
before she became a lawyer. It is not necessary to file a separate action for a suspension of current support. The matter of
determining whether or not petitioner is entitled to support up to the present is subject to the presentation of evidence both
by the petitioner and the respondent and is for the lower court to decide. The respondent judge, therefore, cannot be
compelled by mandamus to order respondent to pay current support when the latter alleges that a ground exists for the
suspension of such obligation. A judgment for support is never final in the sense that not only can its amount be subject to
increase or decrease but its demandability may also be suspended or re-enforced when appropriate circumstances exist.

34

Hontiveros v. IAC
G.R. No. L-64982
October 23, 1984
Makasiar
Recto
petitioners
Alejandro Hontiveros Jr
respondent
Intermediate Appellate Court 3rd Special Cases Division, Hon. Wilfredo Cainglet in his capacity as
Presiding Judge and Brenda Hernando
summary
Brenda filed a petition for habeas corpus. Alejandro filed a petition for custody. Art. 363 of the CC
provides: 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. Brenda is entitled to custody.

35

facts of the case

Alejandro Hontiveros Jr. and Brenda Hernando are father and mother of an acknowledged natural child Margaux
Hontiveros born on Nov. 27, 1981.
From Nov 1981 to June 1982, the child has been under the care and custody of the mother. The father used to take the
child out every Saturday. On June 21, 1982, Alejandro passed by the house of Brenda to take the child to their house for a visit
with the agreement to return her by nightfall. However, the child was never returned.
To recover custody, Brenda filed a petition for habeas corpus in the CFI Rizal. Alejandro filed a petition for custody with
CFI Rizal. Brenda filed a motion to dismiss the petition for custody on the ground of litis pendency but was denied. However,
Alejandro abandoned the petition for custody, which was then dismissed.
The parties agreed that the child shall be under the custody of Alejandro for 7 days every other week with the obligation
of taking said minor child from the residence of Brenda every other Friday, at 9:00 A.M., and return on or before the next
Friday morning at 9:00 A.M.
Alejandro filed an urgent ex parte petition for issuance of a writ of preliminary injunction with the RTC to prevent Brenda
from bringing the child outside of the PH to the USA. Counsel for Brenda moved for withdrawal of the petition for habeas
corpus on the ground that it has been moot and academic upon the production of the body of Margaux which was granted.
issue
1. Whether or not Alejandro was deprived of due process because the Judge dismissed his urgent ex parte petition for
preliminary injunction without hearing. NO.
2. Whether or not Alejandro is entitled to the custody of the minor child Margaux. NO
ratio
1. Whether or not Alejandro was deprived of due process because the Judge dismissed his urgent ex parte petition for
preliminary injunction without hearing. NO.
Rule 17.1 ROC provides for the dismissal of an action by order of the court at the instance of the plaintiff (herein Brenda
the private respondent) upon such terms and conditions as the court deems proper. Considering 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 RTC
Pasig, the dismissal of the petition for writ of habeas corpus is warranted.
The dismissal of the habeas corpus case was rendered moot and academic with the issuance of the order of the court on
the agreement of the parties.
The respondent Judge merely exercised his sound discretion in allowing the withdrawal of the case. There was no abuse
of discretion. The judge knew of the existence of the petition for custody case because Alejandro himself admitted. All that
Alejandro must do is file the petition for preliminary injunction with CFI of Rizal where the petition for custody case is
assigned. The issue as to whether he can be granted a preliminary injunction could have been properly ventilated in that
court. Unfortunately, he chose to appeal by way of certiorari. What more, he did not pursue the action for custody and
abandoned the case.
2.

Whether or not Alejandro is entitled to the custody of the minor child Margaux. NO

Art. 363 of the CC provides: 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 Art. 363 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.
PD 603 (Child and Youth Welfare Code) provides: Article 17 xxx 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
While Alejandro would have us believe that Brenda is unfit to take care of the child, it is too late because under Rule 45
ROC, only questions of law may be raised in the SC.

36

Unson III v. Navarro

G.R. No. 52242
Nov. 18, 1980
Barredo
Reynes
petitioners Miguel Unson III
respondents Hon. Pedro Navarro, Edita Araneta
summary Unson and Aranetas agreement for separation of properties and to live separately was judicially
approved. Later, the judge ordered that custody over their minor child be granted to Araneta. The SC
reversed this order, ruling that custody over Teresa, considering the attending circumstances,
rightfully rests with Unson; and that Araneta has only visitorial rights. The SC noted that even its
decisions on custody of minors are always open to adjustment as the circumstances demand.

37

facts of the case

5. UNSON and ARANETA were married on Apr. 19, 1971. Out of their marriage was born TERESA on Dec. 1, 1971.
a. On July 13, 1974, the spouses executed an agreement for the separation of their properties and to live
separately.
b. There was no mention in the agreement about the custody of the child because the spouses would have
their own private arrangement in that respect.
6. Judge Navarro approved the agreement in a decision rendered Aug. 23, 1974.
7. On Dec. 28, 1979, Judge Navarro issued an order directing UNSON to produce TERESA and return her to the
custody of ARANETA. The order also obliged UNSON to continue his support of TERESA.
8. UNSON went to the SC on certiorari, alleging that the order was issued without a hearing and reception of
testimony in violation of Rule 99 of the Rules of Court. UNSON also affirms:
a. He tightened his custody over TERESA when he learned that Agustin Reyes (with whom ARANETA had
been cohabiting) had been confined twice for manic depression, that ARANETA delivered two children
fathered by Reyes.
b. The following also militate against custody in favor of ARANETA: (i) Reyes is TERESAs
godfather/baptismal sponsor; (ii) Reyes and ARANETA have left the Roman Catholic Church and have
embraced the protestant sect (where Reyes was a seminarian).
9. ARANETA counters that she had never spoken ill of nor turned TERESA against her father UNSON. She also stated
that she and UNSON always had a cordial and amicable relationship. She admits that her present cicumstances
at first impression might seem socially if not morally unacceptable, but in reality this is not so; TERESA has been
reared and brought up in an atmosphere of chirstian love, affection, and honesty.
Issues/held/ratio
W/N ARANETA was rightfully awarded custody over TERESA NO, she was not. ARANETA is granted no more
than visitorial rights.

All controversies regarding the custody of minors, the sole 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
parents.

It is in the best interest of TERESA to be freed from the obviously unwholesome and immoral influencebrought
about by the situation ARANETA has (admittedly) placed herself inmight create in the moral and social outlook of
TERESA.

No respectable father who is properly concerned with the moral well-being of his child, especially a girl, can be
expected to have a different attitude than UNSONs.

It must be noted that even decisions of the SC on the custody of minor children are always open to adjustment as the
circumstances may demand.
W/N the matter of custody should be subject of a separate proceeding under Rule 99 NO, it need not be
instituted in a separate proceeding.

Considering that in the decision on separation of properties mention is made of support for TERESA, to avoid
multiplicity, the matter of custody may be brought before the CFI by petition or as an incident to any other
proceeding.
Petition GRANTED.

38

EXCONDE v. PUNO
G.R. No. L-10134
June 29, 1957
petitioners
Sabina Exconde
respondent
Delfin Capuno and Dante Capuno

BAUTISTA ANGELO, J.

Villarroya

s
summary

This is a civil action for damages against minor Dante and his father Delfin. Dante was previously
convicted of double homicide through reckless imprudence. His teachers in Balintawak Elementary
School instructed him to attend a parade and on the way to the event, he took hold of the jeepneys
wheel which turned turtle. Two of his passengers died. His father did not know about the parade until
after the accident. The SC held that the father should be held liable, jointly and severally, with his son
for damages arising from the latters negligence. This is a necessary consequence of the fathers
parental authority over his son, which may only be rebutted by a finding that he exercised the
diligence of a good father of a family, which was not proven. Further, the teachers cannot be held
liable because the Spanish Civil Code limits the liability to teachers of arts and trades and not to mere
academic educational institutions.
JBL Reyes dissent: No distinction should be made between teachers of arts and trades and
academic educational institutions. The words arts and trades only qualifies heads of
establishments and not teachers. Once the father placed his child under the effective authority of
the teacher, it is the latter who should be held liable for torts committed by the child. The father
should therefore be absolved of liability.

39

facts of the case

15-year-old Dante Capuno was a member of the Boy Scouts Organization and a student of the Balintawak Elementary
School. In 1949, he attended a parade in honor of Dr. Jose Rizal upon the instruction of the city school's supervisor. From the
school Dante, with other students, boarded a jeep and when the same started to run, he took hold of the wheel and drove it
while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its passengers, Amado
Ticzon and Isidoro Caperia, died as a consequence.
Delfin Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that his son was going to
attend a parade. He only came to know about it after the accident.
Dante was found guilty of double homicide through reckless imprudence by the lower court. Sabina Exconde, mother of
Isidoro, instituted this present civil action for damages against Dante and his father Delfin.
Delfin set up the defense that if any one should be held liable for the death of Isidoro, it is the minor Dante alone because
at the time of the accident, the former was not under the control, supervision and custody, of the latter.
issue
Whether or not Delfin Capuno can be held civilly liable, jointly and severally with his son Dante, for damages.
YES. This is a necessary consequence of his parental authority. He can only be relieved of liability if he
proves he exercised the diligence of a good father of a family, which he failed to do.
ratio
Article 1903 of the Spanish Civil Code:
ART. 1903. The obligation imposed by the next preceding articles is enforceable not only for personal acts and omissions,
but also for those of persons for whom another is responsible.
The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor children
who live with them.
xxx
xxx
xxx
Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while
they are under their custody.
HEAD OF SCHOOL/CITY SCHOOL SUPERVISOR NOT LIABLE
Under the law above quoted, "teachers or directors of arts and trades are liable for any damages caused by their pupils or
apprentices while they are under their custody," but this provision only applies to an institution of arts and trades
and not to any academic educational institution.
Here Dante was then a student of the Balintawak Elementary School and as part of his extra-curricular activity, he
attended the parade upon instruction of the city school's supervisor. In the circumstances, it is clear that neither the head of
that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was not then a
student of an institute of arts and trades as provided by law.
DELFIN IS LIABLE FOR THE NEGLIGENCE OF HIS SON
The civil liability which the law imposes upon the father, and, in case of his death or incapacity, the mother, for any
damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of
the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping
them in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives
them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code).
The only way by which they can relieve themselves of this liability is if they prove that they exercised all
the diligence of a good father of a family to prevent the damage (Article 1903, last paragraph, Spanish Civil Code).
This defendants failed to prove.
dissenting opinion
REYES, J.B.L., J.
In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of
the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments."
I can see no sound reason for limiting Art. 1903 to teachers of arts and trades and not to academic ones. What
substantial difference is there between them in so far as concerns the proper supervision and vigilance over their pupils? It
cannot be seriously contended that an academic teacher is exempt from the duty of watching do not commit a tort to the
detriment of third persons, so long as they are in a position to exercise authority and supervision over the pupil.
Where the parent places the child under the effective authority of the teacher, the latter, and not the
parent, should be the one answerable for the torts committed while under his custody, for the very reason that
the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the
teacher while the child is under instruction. And if there is no authority, there can be no responsibility.
In this case, there is no question that Dante was instructed to attend the Rizal parade. His father could not properly
refuse to allow the child to attend, in defiance of the school authorities. The father had every reason to assume that in
ordering a minor to attend a parade with other children, the school authorities would provide adequate
supervision over them. If a teacher or scout master was present, then he should be the one responsible for allowing the
minor to drive the jeep without being qualified to do so. On the other hand, if no teacher or master was at hand to watch over
the pupils, the school authorities are the ones answerable for that negligence, and not the father.