You are on page 1of 5

6 August 2014

Mr. Dan Mulligan


221B Baker Street, Rockwell Center
Makati

Dear Mr. Mulligan:

This particular legal opinion seeks to answer your question as to who has the
better legal right regarding the custody of Ms. Gretta Greens daughter Violet - Gretta
her mother, or Grettas parents.

As per Philippine laws regarding children and custody, you and your future spouse Ms.
Green has the better right for Violets custody.

The Facts

According to our discussion, the following are the relevant facts concerning the
issue being tackled in this instant case:

Sometime last February 2013, you met Gretta Green and had a relationship with
her leading you to propose to her last January 2014. Currently, wedding preparations
are in motion.

On the night of your engagement, Ms. Green informed you of her 5-year old
daughter, Violet, whom she gave birth to during her previous relationship with a certain
Dave Kohl in 2009.

Violet is currently residing with Ms. Greens parents in the province since her
break up with Mr. Kohl last 2012. Ms. Green sees her once a month and Mr. Kohl gives
her support every Christmas since 2012 amounting to 500,000.00.

You have expressed your willingness to adopt and raise the child under your
custody, however Ms. Greens parents insist that Violet are to stay with them because of
Ms. Greens irresponsible behavior, as youve quoted.

You also have mentioned your current economic status, being a producer in a
reputable music label, owning a house with four bedrooms and in a good part of town,
close to a school, church and hospital.

Per our discussion, youve alleged Daves disinterest in the issue at hand
concerning Violets custody.

Analysis of Applicable Laws and Jurisprudence


1
Article 363 of the New Civil Code of the Philippines is the flagship law that carries
the burden of the main issue at hand Violets custody. It provides that:
Article 363. In all questions on the care, custody, education and
property of children, the latters welfare shall be paramount. No mother
shall be separated from her child under seven years of age, unless the
court finds compelling reasons for such measure.

The same rule has been taken up in the Family Code 1. The Child and Youth
Welfare Code2 also mentions the same specifically for separated parents and for
children under 5 years old.

Under both Civil and the Family Code, Violet, being 5 years of age, should be under her
mothers custody. However, the last sentence of the law gives an exception: compelling
reasons for the opposite.

The nature of Ms. Greens job, a musician, casts a doubt as to whether or not
she is a suitable custodian for Violet. According to the Code Commission concerning
Article 363, as cited in the case of Pablo-Gualberto v. Gualberto, the Commission stated
the legislative intent of the said Article:

The general rule is recommended in order to avoid a tragedy where a mother has seen
her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for
compelling reasons for the good of the child: those cases must indeed be rare, if
the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery,
the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation. 3 (Emphasis supplied)

According to the Commission, for the exception to apply, the case must be rare.
Single musicians raising a child in the city is definitely not a rare case and is not
enough justification for separating Violet from her own mother.

Also, the Court already held that the use of shall in Article 363 of the Civil Code and the
observations made by the Code Commission underscore the mandatory character of
the word4, which means that unless such compelling reasons are proven, strict
application of the law should be followed.

The Supreme Court further expounded this topic in its Rule on Custody of
Minors, stating in its Section 14 the factors in determining custody which the courts

1 The Family Code of the Philippines [Family Code], Executive Order No. 209, art. 213 (1988).
2 The Child and Youth Welfare Code, Presidential Decree No. 603, art.17 (1975).
3 Pablo-Gualberto vs. Gualberto V, 461 SCRA 450(2005) (citing Report of the Code Commission, pg.12).
4 Id. at 473 (citing Lacson vs. San-Jose Lacson, 24 SCRA 837,848 (1968)).

2
should consider. A couple of which is [t]he nature and frequency of contact with both
parents and [t]he most suitable physical, emotional, spiritual, psychological and
educational environment for the holistic development and growth of the minor. 5

Since Violet had been staying with her grandparents, Ms. Green was only able to visit
her once a month, consequently detrimental to her relationship with her own mother as
she would grow distant with her.

Also, as cities are more developed than provinces, Violet would be able to attain a
holistic development and growth as she would have access to relatively more
advanced schools in the city. Since you would be adopting her and you have claimed
that your house is near to a school, church, and a hospital, living with you and your
future spouse is a more suitable environment for a growing child.

Aside from the inherent right of the parents, especially the mother, to their child,
grandparents are also mandated by law not to interfere with the exercise of parental
authority by the parents.6 The parents of Ms. Green cannot order their daughter to let
Violet stay with them and also has the responsibility of letting Violet go with her mother.
Any allegations as to the irresponsible behavior of Ms. Green must be proven by her
parents, and that it must be sufficiently compelling as to the standards mentioned
above.
EL INCOMBIT PROBOTION QUI DECIT NON QUI NEGAT (he who asserts, not he who
denies, must prove).

Conclusion

As established above, it has been held both by law and by jurisprudence that the
right of custody for Violet belongs to Ms. Gretta Green and Ms. Greens parents has no
right to assert their authority over Ms. Green and Violet.

The ensuing battle for custody of the minor children is not only a thorny issue but also a
highly sensitive and heartrending affair. 7

Ms. Green and her daughter must not be unduly separated from each other as the
reasons given by Greens parents are insufficient as per legal standard. I believe that
this stand will prevail in court as the Philippine laws stated the doctrine clear in black
and white. To rule otherwise would be going against numerous laws and jurisprudence,
both held in municipal and international 8 setting.

Recommendation

5 Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors [Rule on Custody of
Minors], A.M. No. 03-04-04-SC, 14 (2003).
6 Child and Youth Welfare Code, art. 18.
7 Madrian vs. Madrian, 527 SCRA 487, 489 (2007).
8 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series,
vol. 1577, p. 3, available at: http://www.refworld.org/docid/3ae6b38f0.html (last accessed 26 September 2015).

3
My recommendation would be in both legal and practical aspect. Since you and
Ms. Green is not yet married, it would be better for Ms. Green to take actions
concerning the issue at hand personally since you still do not have enough legal
standing over cases concerning Violets custody. It would be best if you and Ms. Green
be on the same page regarding this matter, so I would suggest that you inform her.

Suits within the family are highly discouraged by Philippine Laws. Article 151 of the
Family Code9 states that:

Article 151. No suit between members of the same family shall


prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such
efforts were in fact made, the case must be dismissed.

It is natural for any parent to be protective of their children or in this case, grandchildren
as well. So in order to reach a compromise, as mandated by law before any suit be filed
against members of the same family, I would suggest that you make yourself known
before Ms. Greens parents. This is to establish trust between Greens parents and
yourself.

It would be also good for you to show them personally your house, or where the
conjugal home would be for them to have confidence that their daughter and
granddaughter is in good hands. After doing such efforts in reconciling both parties, and
the grandparents are still reluctant into giving Ms. Green the custody of her own child,
then legal actions may be pushed.

If there are no other legal impediments concerning this issue, then I would also suggest
that you push through with the wedding first and then after file for the legal adoption of
your illegitimate child, giving you better legal standing in court. According to Philippine
law, in case one spouse adopts an illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses. 10

Being the husband of Ms. Gretta Green, both of you would now be able to pursue
charges against Ms. Greens parents without having to prove earnest efforts toward a
compromise. As held in Gayon v. Gayon11, the enumeration12 of the family relations
found in Article 150 of the Family Code should be strictly construed. Non-family

9 Family Code, art. 151.


10 An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children and for Other Purposes
[Domestic Adoption Act of 1998], Republic Act Number 8552, art.3, 7.
11MELENCIO S. STA. MARIA, Persons and Family Relations Law 619 (6 th ed.2015) (citing Gayon v. Gayon, 36 SCRA
104 (1970)).
12 Art. 50. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.

4
members may sue anyone from the other spouses family without having to observe the
earnest effort rule.

But before you pursue charges against Ms. Greens parents, I would advise that
you first inform your future in-laws about the repercussions of their actions and what the
law says about such. Although you are not required by law to seek compromise, the
family still is the foundation of society. You would not want to hastily mar the relationship
of Ms. Green to her parents, and Violet to her grandparents with whom she lived with for
two years. It is always better to keep the harmony in a family intact as this would
provide the optimum holistic environment, not just for Violet, but for your future children
with Ms. Green as well.

It is difficult to imagine a sadder and more tragic spectacle than a litigation between
members of the family. It is necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and passion in the family. It is
known that a lawsuit between close relatives generates deeper bitterness than
strangers.13

I hope I have answered your questions well. If you have further questions, please feel
free to contact me or any of my associates. Thank you for your time and God bless.

Sincerely yours,

___________________
Josiah David F. Quising
Legal Counsel

13 STA. MARIA, supra note 11, at 619-620 (citing Report of the Code Commission, page 18)