Buenaventura VS.

CA
G.R. Nos. 127358 and G.R. Nos. 127449
March 31, 2005

Facts: Noel Buenaventura filed a position for the declaration of nullity of marriage on
the ground that both he and his wife were psychologically incapacitated.
The RTC in its decision, declared the marriage entered into between petitioner and
respondent null and violation ordered the liquidation of the assets of the conjugal
partnership property; ordered petitioner a regular support in favor of his son in the
amount of 15,000 monthly, subject to modification as the necessity arises, and
awarded the care and custody of the minor to his mother.
Petitioner appealed before the CA. While the appeal was pending, the CA, upon
respondents motion issued a resolution increasing the support pendants like to P20,
000.
The CA dismissal petitioner appeal for lack of merit and affirmed in to the RTC
decision. Petitioner motion for reconsideration was denied, hence this petition.

Issue: Whether or not co-ownership is applicable to valid marriage.

Held: Since the present case does not involve the annulment of a bigamous marriage,
the provisions of article 50 in relation to articles 41, 42 and 43 of the Family Code,
providing for the dissolution of the absolute community or conjugal partnership of
gains, as the case maybe, do not apply. Rather the general rule applies, which is in
case a marriage is declared void ab initio, the property regime applicable to be
liquidated, partitioned and distributed is that of equal co-ownership.
Since the properties ordered to be distributed by the court a quo were found, both by
the RTC and the CA, to have been acquired during the union of the parties, the same
would be covered by the co-ownership. No fruits of a separate property of one of the
parties appear to have been included or involved in said distribution.

Dela Cruz vs Gracia

G.R. No. 177728, July 31, 2009

FACTS: Jenie was denied the registration of her child's birth because the document
attached to the Affidavit to use the Surname of the Father (AUSF) entitled
"Autobiography," did not include the signature of the deceased father, and because
he was born out of wedlock and the father unfortunately died prior to his birth and
has no more capacity to acknowledge his paternity to the child.
Jenie and the child promptly filed a complaint for injunction/registration of name
against Gracia. The trial court held that even if Dominique, the father, was the author
of the unsigned handwritten Autobiography, the same does not contain any express
recognition of paternity.

ISSUE: Whether or not the unsigned handwritten instrument of the deceased father
of minor Christian can be considered as a recognition of paternity.

RULING: Yes.
Article 176 of the Family Code, as amended by RA 9255, permits an illegitimate child
to use the surname of his/her father if the latter had previously recognized him/her
as his offspring through an admission made in a pubic of private handwritten
instrument.

Article 176, as amended, does not explicitly state that there must be a signature by the
putative father in the private handwritten instrument.
The following rules respecting the requirement of affixing the signature of the
acknowledging parent in any private handwritten instrument wherein an admission
of filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence

submitted to prove filiation, there should be strict compliance with the requirement
that the same must be signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant

and competent evidence, it suffices that the claim of filiation therein be shown to have
been made and handwritten by the acknowledging parent as it is merely
corroborative of such other evidence.
Categories: Persons and Family Relations

Ngo Te Vs Yu-Te
G.R. No. 161793

Facts: This is a petition for review on certiorari under Rule 45 of the Rules of Court
assailing the August 5, 2003 Decision of the Court of Appeals (CA) in CAG. R. CV
No. 71867. The petition further assails the January 19, 2004 Resolution denying the
motion for the reconsideration of the challenged decision.
Sometimes in January 1996 Petitioner Edward Kenneth Ngo Te first met respondent
Rowena Ong Gutierrez YuTe in a gathering organized by the Filipino Chinese
association in their college. Sharing similar angst towards their families, the two
understood one another and developed a certain degree of closeness towards each
other. In March 1996, or around three months after their first meeting, Rowena asked
Edward that they elope. At first, he refused, bickering that he was young and jobless.
Her persistence, however, made him relent. Thus, they left Manila and sailed to Cebu
that month he, providing their travel money and she, purchases the boat ticket.
However, Edwards P80,000.00 lasted for only a month. Their pension house
accommodation and daily sustenance fast depleted it. And they could not find a job.
In April 1996, they decided to go back to Manila. Rowena proceeded to her uncles
house and Edward to his parents home. As his family was abroad, and Rowena kept
on telephoning him, threatening him that she would commit suicide, Edward agreed
to stay with Rowena at her uncles place. On April 23, 1996, Rowenas uncle brought
the two to a court to get married. He was then 25 years old, and she, 20. Rowena
suggested that he should get his inheritance so that they could live on their own.
Edward talked to his father he told that he will disinherited and insisted that Edward
must go home. In June 1996, Edward was able to talk to Rowena. Unmoved by his
persistence that they should live with his parents, she said that it was better for them
to live separate lives. They then parted ways.
After almost four years, or on January 18, 2000, Edward filed a petition before the
Regional Trial Court (RTC) of Quezon City, Branch 106, for the annulment of his
marriage to Rowena on the basis of the latters psychological incapacity. The trial
court, on July 30, 2001, rendered its Decision declaring the marriage of the parties
null and void on the ground that both parties were psychologically incapacitated to
comply with the essential marital obligations.

Issue: Whether or not the contracted marriage is void on the ground that both parties
were psychologically incapacitated

Held: The Psychological test result and evaluation result were both petitioner and
respondent are dubbed to be emotionally immature and recklessly impulsive upon
swearing to their marital vows as each of them was motivated by different notions
on marriage. Although there is no requirement that the person to be declared
psychologically incapacitated be personally examined by a physician, if the totality
of evidence presented is enough to sustain a finding of psychological
incapacity. Verily, the evidence must show a link, medical or the like, between the
acts that manifest psychological incapacity and the psychological disorder itself.
The petition for review on certiorari is GRANTED. The August 5, 2003 Decision and
the January 19, 2004 Resolution of the Court of Appeals in CAG. R. CV No. 71867 are
REVERSED and SET ASIDE, and the Decision, dated July 30, 2001, REINSTATED.

Thornton v. Thornton,

FACTS: Petitioner was an American, respondent was a Filipino. They were married
and had one daughter. After 3 years, the woman grew restless and bored as a plain
housewife and wanted to return to her old job as GRO in a nightclub. One day, the
woman left the family home together with their daughter and told her servants that
she was going to Basilan. The husband filed a petition for habeas corpus in the
designated Family Court in Makati City but was dismissed because the child was in
Basilan. When he went to Basilan, he didnt find them and the barangay office issued
a certification that respondent was no longer residing there. Petitioner filed another
petition for habeas corpus in CA which could issue a writ of habeas corpus
enforceable in the entire country. The petition was denied by CA on the ground that
it did not have jurisdiction over the case since RA 8369 (Family Courts Act of 1997)
gave family courts exclusive jurisdiction over petitions for habeas corpus, it
impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of CA) and B.P 129
(The judiciary Reorganization Act of 1980.)

ISSUE: W/N CA has jurisdiction to issue writs of habeas corpus in cases involving
custody of minors in light of the provision in RA 8369 giving family courts exclusive
jurisdiction over such petitions.

HELD: Petition granted. CA should take cognizance of the case because nothing in
RA 8369 revoked its jurisdiction to issue writs of habeas corpus involving custody of
minors. The reasoning of CA cant be affirmed because it will result to iniquitous,
leaving petitioners without legal course in obtaining custody. The minor could be
transferred from one place to another and habeas corpus case will be left without
legal remedy since family courts take cognizance only cases within their jurisdiction.
Literal interpretation would render it meaningless, lead to absurdity, injustice, and
contradiction. The literal interpretation of exclusive will result in grave injustice
and negate the policy to protect the rights and promote welfare of children.

Mossesgeld vs CA

Case Doctrines: Illegitimate children shall use the surname of the mother , and this
is rule regardless of whether or not the father admits paternity.
Mandamus does not lie to compel the performance of an act prohibited by law

Facts: In 1989, Marissa Mossesgeld (single), gave birth to a baby boy. The father, one
Eleazar Calasan (married), signed the birth certificate of the child as the informant,
indicating therein the childs name as Jonathan Mossesgeld Calasan. Both Eleazar
and Marissa accomplished the dorsal side of the certificate of live birth stating that
the information contained therein were true and correct. In addition, Eleazar
executed an affidavit admitting paternity of the child.

The person in charge at the hospital refused to place Calasan as the childs surname
in the certificate of live birth; hence, Eleazar himself submitted the certificate to the
office of the local civil registrar of Mandaluyong, for registration. The local civil
registrar denied the registration on the basis of Circular No. 4, dated October 11, 1988,
of the Civil Registrar General, providing that under Article 176 of the Family Code of
the Philippines, illegitimate children born on or after August 3, 1988, shall use the
surname of their mother.

Eleazar filed with the Regional Trial Court of Pasig a petition for mandamus to
compel the Local Civil Registrar of Mandaluyong to register the certificate of live
birth of his alleged illegitimate son using his surname. The RTC denied the petition.
Eleazar filed a motion for reconsideration. Later, he filed a motion for leave to amend
petition and to admit amended petition, substituting the childs mother Marissa A.
Mossesgeld as the petitioner. The MR was denied. The CA affirmed the decision.

Issue: Does mandamus lie to compel the Local Civil Registrar to register a certificate
of live birth of an illegitimate child using the alleged fathers surname where the
latter admitted paternity?

Held: No. Article 176 of the Family Code of the Philippines provides that
illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code.

This is the rule regardless of whether or not the father admits paternity.
Consequently, the Local Civil Registrar correctly refused to register the certificate of
live birth of petitioners illegitimate child using the surname of the alleged father,
even with the latters consent. Of course, the putative father, though a much
married man, may legally adopt his own illegitimate child. In case of adoption, the
child shall be considered a legitimate child of the adopter, entitled to use his
surname.
Mandamus will not lie to compel the local civil registrar to register the certificate of
live birth of an illegitimate child using the fathers surname, even with the consent of
the latter. Mandamus does not lie to compel the performance of an act prohibited by
law.

Republic vs. Toledano

Facts:On February 21, 1990, Spouses Alvin Clouse, a natural-born US Citizen and
Evelyn Clouse, a former Filipino who became a naturalized US citizen, filed a
petition to adopt Solomon Alcala, a minor who is Evelyn's youngest brother. The
trial court granted the petition.Republic, through the Office of the Solicitor General
appealed contending that the lower court erred in granting the petition for the
spouses are not qualified to adopt under Philippine Law.

Issue:Whether or not Spouses Clouse are qualified to adopt

Held:Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known
as "The Family Code of the Philippines", private respondents spouses Clouse are
clearly barred from adopting Solomon Joseph Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the
persons who are not qualified to adopt, viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his
or her spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in
accordance with the rules on inter-country adoption as may be provided by
law.

There can be no question that private respondent Alvin A. Clouse is not qualified to
adopt Solomon Joseph Alcala under any of the exceptional cases in the aforequoted
provision. In the first place, he is not a former Filipino citizen but anatural
born citizen of the United States of America. In the second place, Solomon Joseph
Alcala is neither his relative by consanguinity nor the legitimate child of his spouse.
In the third place, when private respondents spouses Clouse jointly filed the petition
to adopt Solomon Joseph Alcala on February 21, 1990, private respondent Evelyn A.
Clouse was no longer a Filipino citizen. She lost her Filipinocitizenship when she
was naturalized as a citizen of the United States in 1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify
pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a
former Filipinocitizen. She sought to adopt her younger brother. Unfortunately, the
petition for adoption cannot be granted in her favor alone without violating Article
185 which mandates a joint adoption by the husband and wife. It reads:

Article 185. Husband and wife must jointly adopt, except in the following
cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must
be read along together with Article 184.

Under the Family Code, joint adoption by husband and wife is mandatory. This is in
consonance with the concept of joint parental authority over the child, which is the
ideal situation. As the child to be adopted is elevated to the level of a legitimatechild,
it is but natural to require the spouses to adopt jointly. The rule also insuresharmony
between the spouses.

Note:

The alien husband can now adopt under Sec. 7 (b) of R.A. No. 8552 (Domestic
Adoption Act of 1998). The Supreme Court has held in several cases that when
husband and wife are required to adopt jointly, each one of them must be qualified
to adopt in his or her own right. However, the American husband must comply with
the requirements of the law including the residency requirement of 3 years.
Otherwise, the adoption will not be allowed. (Desiderio P. Jurado, Civil
LawReviewer, 2006 ed., p. 232)

Republic Act No. 9255 February 24 2004

AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF

THEIR FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF
EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE "FAMILY CODE
OF THE PHILIPPINES"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family
Code of the Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in conformity
with this Code. However, illegitimate children may use the surname of their father if
their filiation has been expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public document or private
handwritten instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during his lifetime.
The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child."

SECTION 2. Repealing Clause. All laws, presidential decrees, executive orders,

proclamations, rules and regulations, which are inconsistent with the provisions of
this Act are hereby repealed or modified accordingly.

SECTION 3. Effectivity Clause. This Act shall take effect fifteen (15) days from its
publication in the Official Gazette or in two (2) newspapers of general circulation.

JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P.

MIGUEL and LORETA P. MIGUEL, respondents.

An illegitimate child is under the sole parental authority of the mother. In the
exercise of that authority, she is entitled to keep the child in her company. The Court
will not deprive her of custody, absent any imperative cause showing her unfitness
to exercise such authority and care.

The Case
The Petition for Review[1] before the Court seeks to reverse and set aside the
August 28, 2002 Decision[2] and the December 11, 2002 Resolution[3] of the Court of
Appeals in CA-GR SP No. 69400.[4] The dispositive portion of the assailed Decision
reads as follows:

WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall

have custody over the child Michael Kevin Pineda until he reaches ten (10) years of
age. Once the said child is beyond ten (10) years of age, the Court allows him to
choose which parent he prefers to live with pursuant to Section 6, Rule 99 of the 1997
Rules of Civil Procedure, as amended. The petitioner, Joey D. Briones, shall help
support the child, shall have visitorial rights at least once a week, and may take the
child out upon the written consent of the mother.

Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to
be without merit, the same is DENIED.[5]
The challenged Resolution denied reconsideration.

The Facts
The CA summarized the antecedents of the case in this wise:

On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against
respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody
of his minor child Michael Kevin Pineda.
On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P.
Miguel, the mother of the minor, as one of the respondents.

A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the
respondents to produce before this Court the living body of the minor Michael Kevin
Pineda on March 21, 2002 at 2:00 oclock in the afternoon.

The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son
with respondent Loreta P. Miguel. He was born in Japan on September 17, 1996 as
evidenced by his Birth Certificate. The respondent Loreta P. Miguel is now married
to a Japanese national and is presently residing in Japan.

The petitioner further alleges that on November 4, 1998 he caused the minor child to
be brought to the Philippines so that he could take care of him and send him to
school. In the school year 2000-2001, the petitioner enrolled him at the nursery school
of Blessed Angels L.A. School, Inc. in Caloocan City, where he finished the nursery
course.

According to the petitioner, his parents, who are both retired and receiving monthly
pensions, assisted him in taking care of the child.

On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the
house of the petitioner in Caloocan City on the pretext that they were visiting the
minor child and requested that they be allowed to bring the said child for recreation
at the SM Department store. They promised him that they will bring him back in the
afternoon, to which the petitioner agreed. However, the respondents did not bring
him back as promised by them.

The petitioner went several times to respondent Maricel P. Miguel at Tanza,

Tuguegarao City but he was informed that the child is with the latters mother at
Batal Heights, Santiago City. When he went there, respondent Francisca P. Miguel
told him that Michael Kevin Pineda is with her daughter at Tuguegarao City.

He sought the assistance of the police and the Department of Social Welfare to locate
his son and to bring him back to him, but all his efforts were futile.

Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial
Court of Caloocan City which was docketed as SPC No. 2711. However, the said case
was withdrawn ex-parte.

The petitioner prays that the custody of his son Michael Kevin Pineda be given to
him as his biological father and [as] he has demonstrated his capability to support
and educate him.

On May 6, 2002, the respondents filed their Comment, in compliance with the May 2,
2002 Resolution of this Court.

In their Comment, the respondent Loreta P. Miguel denies the allegation of the
petitioner that he was the one who brought their child to the Philippines and stated
that she was the one who brought him here pursuant to their agreement.
Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents
Maricel P. Miguel and Francisca P. Miguel were the ones who took the child from the
petitioner or the latters parents. She averred that she was the one who took Michael
Kevin Pineda from the petitioner when she returned to the Philippines and that the
latter readily agreed and consented.

Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner
was deported from Japan under the assumed name of Renato Juanzon when he was
found to have violated or committed an infraction of the laws of Japan. She further
stated that since the time the petitioner arrived in the Philippines, he has not been
gainfully employed. The custody of the child, according to respondent Loreta P.
Miguel was entrusted to petitioners parents while they were both working in Japan.
She added that even before the custody of the child was given to the petitioners
parents, she has already been living separately from the petitioner in Japan because
the latter was allegedly maintaining an illicit affair with another woman until his
deportation.

She likewise stated in her Comment that her marriage to a Japanese national is for
the purpose of availing of the privileges of staying temporarily in Japan to pursue
her work so she could be able to send money regularly to her son in the Philippines.
She further stated that she has no intention of staying permanently in Japan as she
has been returning to the Philippines every six (6) months or as often as she could.

Respondent Loreta P. Miguel prays that the custody of her minor child be given to
her and invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the
Civil Code of the Philippines.

Ruling of the Court of Appeals

Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the
custody of Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel.
While acknowledging that petitioner truly loved and cared for his son and
considering the trouble and expense he had spent in instituting the legal action for
custody, it nevertheless found no compelling reason to separate the minor from his
mother. Petitioner, however, was granted visitorial rights.
Hence, this Petition.[6]
Issue
In his Memorandum, petitioner formulated the ultimate issue as follows: x
x x [w]hether or not [he], as the natural father, may be denied the custody and
parental care of his own child in the absence of the mother who is away.[7]

The Courts Ruling

The Petition has no merit. However, the assailed Decision should be modified in
regard to its erroneous application of Section 6 of Rule 99 of the Rules of Court.
Sole Issue
Who Should Have Custody of the Child?
 Petitioner concedes that Respondent Loreta has preferential right over their
minor child. He insists, however, that custody should be awarded to him whenever
she leaves for Japan and during the period that she stays there. In other words, he
wants joint custody over the minor, such that the mother would have custody when
she is in the country. But when she is abroad, he -- as the biological father -- should
have custody.
According to petitioner, Loreta is not always in the country. When she is abroad,
she cannot take care of their child. The undeniable fact, he adds, is that she lives most
of the time in Japan, as evidenced by her Special Power of Attorney dated May 28,
2001,[8] granting to her sister temporary custody over the minor.
At present, however, the child is already with his mother in Japan, where he is
studying,[9] thus rendering petitioners argument moot. While the Petition for Habeas
Corpus was pending before the CA, petitioner filed on July 30, 2002, an Urgent
Motion for a Hold Departure Order,[10] alleging therein that respondents were
preparing the travel papers of the minor so the child could join his mother and her
Japanese husband. The CA denied the Motion for lack of merit.[11]
Having been born outside a valid marriage, the minor is deemed an illegitimate
child of petitioner and Respondent Loreta. Article 176 of the Family Code of the
Philippines[12] explicitly provides that illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall be entitled to support
in conformity with this Code. This is the rule regardless of whether the father admits
paternity.[13]
Previously, under the provisions of the Civil Code, illegitimate children were
generally classified into two groups: (1) natural, whether actual or by legal fiction;
and (2) spurious, whether incestuous, adulterous or illicit.[14] A natural child is one
born outside a lawful wedlock of parents who, at the time of conception of the child,
were not disqualified by any impediment to marry each other.[15] On the other hand,
a spurious child is one born of parents who, at the time of conception, were
disqualified to marry each other on account of certain legal impediments.[16]
Parental authority over recognized natural children who were under the age of
majority was vested in the father or the mother recognizing them.[17] If both
acknowledge the child, authority was to be exercised by the one to whom it was
awarded by the courts; if it was awarded to both, the rule as to legitimate children
applied. In other words, in the latter case, parental authority resided jointly in the
father and the mother.[18]
The fine distinctions among the various types of illegitimate children have been
eliminated in the Family Code.[19] Now, there are only two classes of children --
legitimate (and those who, like the legally adopted, have the rights of legitimate
children) and illegitimate. All children conceived and born outside a valid marriage
are illegitimate, unless the law itself gives them legitimate status.[20]
Article 54 of the Code provides these exceptions: Children conceived or born
before the judgment of annulment or absolute nullity of the marriage under Article
36 has become final and executory shall be considered legitimate. Children conceived
or born of the subsequent marriage under Article 53 shall likewise be legitimate.
Under Article 176 of the Family Code, all illegitimate children are generally
placed under one category, without any distinction
between natural and spurious.[21]The concept of natural child is important only for
purposes of legitimation.[22] Without the subsequent marriage, a natural child
remains an illegitimate child.
Obviously, Michael is a natural (illegitimate, under the Family Code) child, as
there is nothing in the records showing that his parents were suffering from a legal
impediment to marry at the time of his birth. Both acknowledge that Michael is their
son. As earlier explained and pursuant to Article 176, parental authority over him
resides in his mother, Respondent Loreta, notwithstanding his fathers recognition of
him.
David v. Court of Appeals[23] held that the recognition of an illegitimate child by
the father could be a ground for ordering the latter to give support to, but not
custody of, the child. The law explicitly confers to the mother sole parental authority
over an illegitimate child; it follows that only if she defaults can the father assume
custody and authority over the minor. Of course, the putative father may adopt his
own illegitimate child;[24] in such a case, the child shall be considered a legitimate
child of the adoptive parent.[25]
There is thus no question that Respondent Loreta, being the mother of and
having sole parental authority over the minor, is entitled to have custody of
him.[26]She has the right to keep him in her company.[27] She cannot be deprived of
that right,[28] and she may not even renounce or transfer it except in the cases
authorized by law.[29]
Not to be ignored in Article 213 of the Family Code is the caveat that, generally,
no child under seven years of age shall be separated from the mother, except when
the court finds cause to order otherwise.
Only the most compelling of reasons, such as the mothers unfitness to exercise
sole parental authority, shall justify her deprivation of parental authority and the
award of custody to someone else.[30] In the past, the following grounds have been
considered ample justification to deprive a mother of custody and parental authority:
neglect or abandonment,[31] unemployment, immorality,[32] habitual drunkenness,
drug addiction, maltreatment of the child, insanity, and affliction with a
communicable disease.
Bearing in mind the welfare and the best interest of the minor as the controlling
factor,[33] we hold that the CA did not err in awarding care, custody, and control of
the child to Respondent Loreta. There is no showing at all that she is unfit to take
charge of him.
We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v.
Court of Appeals,[34] the Court sustained the visitorial right of an illegitimate father
over his children in view of the constitutionally protected inherent and natural right of
parents over their children.[35] Even when the parents are estranged and their
affection for each other is lost, their attachment to and feeling for their offspring
remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent
any real, grave or imminent threat to the well-being of the child.
However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court.
This provision contemplates a situation in which the parents of the minor are
married to each other, but are separated either by virtue of a decree of legal
separation or because they are living separately de facto. In the present case, it has
been established that petitioner and Respondent Loreta were never married. Hence,
that portion of the CA Decision allowing the child to choose which parent to live
with is deleted, but without disregarding the obligation of petitioner to support the
child.
WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED with the MODIFICATION that the disposition allowing the
child, upon reaching ten (10) years of age, to choose which parent to live with
is DELETED for lack of legal basis. Costs against petitioner.
SO ORDERED.

IRENE REYES
vs.
COURT OF APPEALS

This is a petition for certiorari to review the of the Court of Appeals Special Division
of Five dated October 7, 1974 in CA-G.R. No. L-44964-R, reversing the decision of the
Court of First Instance of Batangas Branch I, dated December 26, 1969 in Civil Case
No. 1144 dismissing the action for reconveyance.

On January 29, 1967, private respondents as plaintiffs a complaint in the Court of

First Instance of Batangas praying that the defendant Irene Reyes, alias Irene Ramero
or Irene Delgado, be ordered to execute a deed of reconveyance in favor of plaintiffs
Placida Delgado, Domingo Delgado, and Paula Delgado over four parcels of land
located in Tayabas, Quezon, and one parcel of land located in Pagbilao, Quezon, and
another deed of reconveyance in favor of plaintiff Maximina Delgado over three
parcels of land located in Alitagtag, Batangas.

It was alleged in the complaint that the defendants thru abuse of confidence, fraud,
deceit, misrepresentation and other falsifications succeed in registering in the offices
of the Register of Deeds of Quezon and Batangas a document of self-adjudication
(Exhibit "24"), wherein defendant Irene Delgado alleged that she was the sole child of
the deceased Francisco Delgado and entitled to inherit the parcels of lands described
in the complaint; that as a result thereof Transfer Certificate of Title Nos. 9913, 10348,
14937, T-11747 and 13489 were cancelled and new Transfer Certificates of Title were
issued in the name of Irene Delgado; that defendant Irene Delgado is not the
illegitimate daughter of Francisco Delgado, who died without issue, but is the
legitimate daughter of Genoveva Ramero and Justino Reyes; that plaintiffs Placida
Delgado, Domingo Delgado and Paula Delgado, sisters and brother of the deceased
Francisco Delgado are the heirs entitled to inherit from Francisco Delgado; and that
Paula, Placido and Domingo Delgado defrayed the expenses of the last illness and
the funeral expenses of Francisco Delgado and for the purpose they borrowed the
sum of P 7,000.00 from their niece, plaintiff Maximina Delgado, and to pay Maximina
Delgado they conveyed to her the three parcels of land described in subparagraphs (f)
to (g) of paragraph 9 of the complaint. They also alleged that the defendant spouses
Irene and Moises Villanueva borrowed from plaintiffs common fund the sum of
P23,000.00 which they used in the purchase of a parcel of land (pp. 1-14, Record on
Appeal; p. 63, rec.).

On or about March 2, 1967, defendant Irene Delgado, one of the petitioners herein,
filed an answer to the complaint and set up the affirmative defense that she is the
illegitimate daughter of the defendant Genoveva Ramero and the deceased Francisco
Delgado; that for several years preceding the birth of Irene Delgado, her mother
Genoveva Ramero had separated from her lawful husband Justino Reyes and never
reconciled since then; and that Irene was born during the cohabitation of Francisco
Delgado and Genoveva Ramero as common law husband and wife, and since her
birth, lived with Francisco Delgado and Genoveva Ramero, who reared and treated
her as their child, maintaining her and sending her through college. Defendants also
denied having contracted a debt of P 23,000.00 from plaintiffs, or that plaintiffs spent
for the last illness and funeral of Francisco Delgado. Irene Delgado likewise set up a
counterclaim, alleging that, as the illegitimate daughter of Francisco Delgado, she has
the right to represent her father to the inheritance left by her grandmother (pp. 15-43,
Record on Appeal; p. 63, rec.).

On March 16, 1967, the plaintiffs thru counsel filed an answer to the counterclaim
denying that the defendant Irene Delgado was the illegitimate child of Francisco
Delgado, and hence has no right to claim from the estate of Francisco's mother,
Benigna Castillo, and that the properties claimed by the defendant Irene Delgado no
longer formed part of the estate of Benigna Castillo as she had previously disposed
of them during her lifetime (pp. 43-46, Record on Appeal; p. 63, rec.).

On August 15, 1967, a pre-trial in Civil Case No. 1144 was conducted.

On March 25, 1969, the plaintiffs filed a motion to admit an amended answer to the
counterclaim posed by defendant, wherein the plaintiffs alleged that the
counterclaim of the defendant, in so far as it would have the effect of being an
indirect action for acknowledgment, has already prescribed (pp. 50-55, Record on
Appeal; p. 63, rec.).

On April 14, 1969, the lower court admitted the amended answer to the counterclaim
over the objections of the defendant (pp. 56-61, Record on Appeal; p. 63, rec.).

After trial on the merits, the Court rendered its decision on December 26, 1969
dismissing the action for reconveyance and declaring defendant Irene Delgado the
lawful owner of the eight parcels of land. The counterclaim of Irene Delgado was
dismissed for insufficiency of evidence.

Both parties appealed to the Court of Appeals (now IAC), the plaintiffs with respect
to their complaint and the defendants with respect to their counterclaim.

The then Court of Appeals sitting as a Special Division of Five rendered its decision
on October 7, 1974, the dispositive portion of which reads as follows:
Wherefore, the decision of the court a quo is hereby reversed. The deed of
self-adjudication executed by Irene Delgado is hereby declared null and void and set
aside. The transfer certificates of title issued in the name of Irene Delgado in lieu of
Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 are hereby
cancelled, and T.C.T. 9913, 10348, 14937, T-11747 and 13489 are reinstated in the
name of Francisco Delgado. Likewise, the extrajudicial declaration executed by Irene
Delgado adjudicating to herself the 3 parcels of land located in Alitagtag, Batangas,
with Tax Declaration Nos. 8625, 8626 and 8627 are declared null and void. No costs
(pp. 58-59, rec.).

The then Court of Appeals in arriving at this decision found that, although Irene
Delgado was the spurious daughter of Francisco Delgado, she nevertheless cannot
inherit from the estate of the deceased Francisco Delgado because she was not
recognized either voluntarily or by court action (pp. 52-53, rec.).

The titles to the questioned lot however cannot be executed in favor of the plaintiffs;
because in so doing it will be in effect a recognition by the court that the plaintiffs are
the only heirs of Francisco Delgado to the prejudice of other possible heirs or
creditors of the deceased.

As to alleged loan contracted by Irene from the plaintiffs, the then Court of Appeals
affirmed the lower court's decision that it was without merit, because if it were true,
the plaintiffs could have demanded a receipt for such a big amount.

The counterclaim of Irene that she has the share to the inheritance of Benigna Castillo,
Francisco Delgado's mother, and her alleged share in the expenses for the sickness
and funeral of Francisco Delgado which was advanced by the plaintiffs, need not be
ruled upon because of the findings that Irene is not an heir of Francisco Delgado (pp.
57-58, rec.).

On December 2, 1974, defendants, petitioners herein, filed a petition to review the

decision of the Court of Appeals (pp. 2237, rec.).

On January 2, 1975, the plaintiffs, respondents herein, submitted their comment on

the petition for review filed by the petitioner (pp. 67-71, rec.).

On January 15, 1975, the petition for review filed by petitioners was denied in a
resolution by the First Division of the Supreme Court for lack of merit (p. 75, rec.).

On February 18, 1975, petitioners filed a motion for reconsideration (pp. 86-113, rec.).

On April 5, 1975, respondents filed their comments on the motion for reconsideration
filed by petitioners (pp. 130-134, rec.).

On April 23, 1975, petitioners filed their reply to respondents' comment (pp. 118-125,
rec.).
On May 23, 1975, the Supreme Court reconsidered its resolution denying petitioners'
motion for reconsideration (p. 142, rec.).

In their petition, petitioners sought to reverse the decision of the Court of Appeals
raising the following arguments:

1. There are strong and cogent reasons why this Honorable Court must return to and
even enhance the doctrine in Zuzuarregui vs. Zuzuarregui, considering serious flaws
in the reasoning of the currently prevailing doctrine, so that as arguendo and pro hac
vice that Irene was not duly recognized or acknowledged as illegitimate child, she is
nevertheless entitled to successional rights as sole heir of the late Francisco Delgado,
considering that her filiation as illegitimate daughter of Francisco Delgado is
undisputed and beyond question (p. 12, Petitioner's Brief; p. 164, rec.).

2. Upon the other hand, this time assuming arguendo and pro hac vice that under the
Civil Code recognition of an 'other illegitimate' is a pre-requisite to enjoyment of
rights, Irene Delgado was legally acknowledged by her father Francisco Delgado,
specially by his consent or advice to her marriage with Moises Villanueva contrary to
the erroneous conclusions of the Court of Appeals (P. 39, Petitioner's Brief, p. 164,
rec.).

The petition is without merit.

The doctrine that for an illegitimate child other than natural to inherit must be first
recognized voluntarily or by court action is well settled in Our jurisprudence.
(Bercilles vs. GSIS, 128 SCRA 53 [1984]; Divinagracia vs. Rovira, 72 SCRA 307 [1976];
Clemea vs. Clemea, 24 SCRA 720 [1968]; Noble vs. Noble, 18 SCRA 1104 [1966];
Republic vs. Workmen's Compensation Commission, 13 SCRA 272 [1969]; Paulino vs.
Paulino, 3 SCRA 730 [1961]; Barles vs. Ponce Enrile, 109 Phil. 522 [1960]).

There is no reason to overturn this doctrine and revert to what was enunciated in the
case of Zuzuarregui vs. Zuzuarregui (103 Phil. 346 [1958]); as suggested by herein
petitioners in their first assignment of errors.

It is the contention of the petitioners that the silence of the Civil Code as to the
recognition of illegitimate children other than natural, in contrast to natural children
who are expressly required to be recognized in order to inherit, only meant that
illegitimate children need not be recognized in order to inherit from his or her
alleged parent (p. 13, Petitioner's Brief; p. 164, rec.). Petitioners also raised the
argument that under Article 287 of the New Civil Code which reads: "Illegitimate
children other than natural in accordance with Article 269 and other than natural
children by legal fiction are entitled to support and such successional rights as are
granted in this, code." The term "other illegitimate children" refers not only to those
who are not natural or merely adulterous or incestuous but also includes natural
children who were not acknowledged or recognized (p. 18, Petitioner's Brief; p. 164,
rec.). In other words, unrecognized natural children can inherit not the share of a
natural child but the share of a spurious child so long as his filiation shall be duly
proved. So, in effect, illegitimate children need only to prove his filiation to inherit
and such does not place him in a more advantageous position than natural children,
as they are placed in the same situation.

WE do not find these arguments persuasive.

Though the Civil Code is silent with respect to spurious children as to their
recognition, this Court, in applying the rules of recognition, applicable to natural
children, to said spurious children, declared in Clemea vs. Clemea, supra, that:

The considerations of fairness and justice that underlie the time limit fixed in Article
285 of the Civil Code for actions seeking compulsory acknowledgment of natural
children are fully applicable, if not more, to actions to investigate and declare the
paternity of illegitimate children that are not natural. The motive that led the
codifiers to restrict the period for bringing action for compulsory recognition of
natural children were stated by this Court in Serrano vs. Aragon, 22 Phil. 18, to be as
follows:

... the writers of the code no doubt had in mind that there would arise instances
where certain illegitimate children, on account of the strong temptation due to the
large estates left by deceased persons, would attempt to establish that they were
natural children of such persons in order to get part of the property, and furthermore,
they considered that it is nothing but just and right that alleged parents should have
a personal opportunity to be heard. It was for these reasons and others equally as
well founded that Article 137 was enacted (p. 724).

There are two (2) general classifications of illegitimate children or those who are
conceived and born out of wedlock. They may be either natural (actually or by fiction)
or spurious (the incestuous, adulterous or illicit). Natural children are defined as
those born outside of wedlock of parents, who at the time of conception of the former,
were not disqualified by any impediment to marry each other (Article 269, New Civil
Code). On the other hand, spurious children are those born of parents, who at the
time of their conception, are disqualified to marry each other on account of certain
impediment. Because of this basic distinction between these children, it is not legally
possible to classify unrecognized natural children under the class of spurious
children. Besides, commentators construe the phrase "illegitimate children other than
natural" as excluding from the grants of rights under Article 287 of the New Civil
Code those children who are natural child proper by birth and who have not secured
voluntary or compulsory recognition (p. 276, An Outline of Civil Law, J.B.L. Reyes
and R.C. Puno, Vol. 1). They fag within the scope of the definition of natural children
enumerated in Article 269, New Civil Code (p. 142, Civil Law Reviewer, D. Jurado,
1982 ed.). Lastly, to follow petitioners' contention win not be in accordance with the
consistent pronouncements of this Court. It is an elementary and basic principle
under the old and new Civil Code, that an unrecognized natural child has no rights
whatsoever against his parent or his estate. His rights spring not from the filiation
itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat,
21 SCRA 1479 [1967]; Mise vs. Rodriguez, 95 Phil. 396 [1954]; Magallanes vs. CA, 95
Phil. 797 [1954]; Candles vs. Ugarte, 91 Phil. 6 [1952]; Malonda vs. Malonda, 81 Phil.
149 [1948]; Buenaventura vs. Urbano, 5 Phil. 1 [1905]).

As to the second assignment of error raised by petitioners, We find that there was no
sufficient legal recognition of petitioner Irene Delgado by Francisco Delgado.

It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner
was Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This
was certified to by the treasurer of the municipality of Alitagtag Batangas (Exhibits
"L" and "L-1 "). Another certified copy of another birth certificate issued by the
municipal treasurer and local civil registrar of the municipality of Alitagtag (Exhibit
"20") stated therein that the name of the child is Irene Ramero, and the name of the
father is "Francisco" and the mother "Genoveva Ramero." Any of these records of
birth cannot be sufficient recognition under the law. The birth certificate, to be
sufficient recognition, must be signed by the father and mother jointly, or by the
mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753;
Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the
birth certificate, the placing of his name by the mother, or doctor or registrar, is
incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53
[1984]; Roces vs. Local Civil Registrar of Manila, 102 Phil. 1050 [1958]). Since any of
the certificates of birth presented were not signed by Francisco Delgado, it cannot be
taken as record of birth to prove recognition of Irene Delgado; nor can this birth
certificate be taken as a recognition in a public instrument. (Pareja vs. Pareja, 95 Phil.
167[1954]).

Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition

(Bercilles vs. GSIS, supra; People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman,
24 SCRA 434 [1968]; Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino,
8 Phil. 135 [1907]). In the case of Macadangdang vs. CA [100 SCRA 73 [1980]), this
Court said that while baptismal certificates may be considered public documents,
they are evidence only to prove the administration of the sacraments on the dates
therein specified, but not the veracity of the statements or declarations made therein
with respect to his kinsfolk.

Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor
the written consent given by Irene to the operation of her alleged father (Exhibit "4")
cannot be taken as an authentic writing. An authentic writing does not have to be a
public instrument; it is sufficient that it is genuine and not a forgery. It must
generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the
whole instrument is in the handwriting of the alleged parent and the facts mentioned
therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]).
Thus, Irene's secondary student permanent record and her written consent to the
operation of her father, not being signed nor written in the handwriting of Francisco
Delgado, cannot be taken as an authentic writing to prove her recognition by her
alleged father.
The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva,
wherein it was stated that Francisco Delgado gave his consent or advice for Irene
Delgado to marry, and that he was her father cannot be also taken as recognition in
an authentic document because it was not signed nor in the handwriting of Francisco
Delgado It cannot also be taken as recognition in a public instrument as held in the
case of Lim vs. CA, (65 SCRA 161, 164 [1975]) wherein the Court said.

According to Article 1216 of the Civil Code of 1889, Public documents 'are those
authenticated by a notary or by a competent public official, with the formalities
required by law.' Thus, 'there are two classes of public documents, those executed by
private individuals which must be authenticated by notaries, and those issued by
competent public officials by reason of their office.' "The public document pointed
out in Article 131 as one of the means by which recognition may be made belongs to
the first class.

The marriage contract presented by Felisa Lim does not satisfy the requirements of
solemnity prescribed by article 131 of the Civil Code of 1889. Such contract is not a
written act with the intervention of a notary; it is not an instrument executed in due
form before a notary and certified by him. The marriage contract is a mere
declaration by the contracting parties, in the presence of the person solemnizing the
marriage and of two witnesses of legal age, that they take each other as husband and
wife, signed by signature or mark by said contracting parties and the said witnesses,
and attested by the person solemnizing the marriage. The marriage contract does not
possess the requisites of a public document of recognition...

The family pictures (Exhibits "11" to "11-E") presented by Irene, showing Irene posing
with Francisco Delgado, cannot be a sufficient proof of recognition. In the case
of Bercilles vs. GSIS, supra, it was held that pictures do not constitute proof of filiation.

What Irene may have proved is that she had been in continuous possession of a
status of an illegitimate child who is not natural. But such fact alone without a valid
recognition in a record of birth, will statement before a court of record, or authentic
writing does not make Irene a recognized illegitimate child who is not natural. She
nevertheless possesses the right to compel judicial recognition and the action for this
must be brought within the proper prescriptive period (Clemea vs. Clemea, supra).
Article 285 of the New Civil Code provides "that the action for the. recognition of
natural children may be brought only during the lifetime of the presumed parents,
except when the father or mother dies during the minority of the child, the action
shall be brought within four years from the age of majority, or if after the death of
the father or of the mother a document should appear of which nothing had been
heard and in which either or both parents recognize the child, the action shag be
brought within four years from the finding of the document." Since Irene was
already of age (35 years old) when her alleged father died, and she had not presented
any discovered document wherein her presumed father recognized her, the action to
compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]).
WE affirm the findings of the then Court of Appeals that Irene Reyes alias Irene
Delgado is not an heir of the late Francisco Delgado.

WHEREFORE, THE DECISION OF THE THEN COURT OF APPEALS IS HEREBY

AFFIRMED IN TOTO, WITH COSTS AGAINST PETITIONERS.

MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and

ROSARIO C. SALIENTES, Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR.,
REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents

DECISION

QUISUMBING, J.:

The instant petition assails the Decision 1dated November 10, 2003 of the Court of
Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against
the orders of the Regional Trial Court in Special Proceedings No. 03-004. Likewise
assailed is the Court of Appeals Resolution 2dated March 19, 2004 denying
reconsideration.

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C.
Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived
with Marie Antonettes parents, petitioners Orlando B. Salientes and Rosario C.
Salientes. Due to in-laws problems, private respondent suggested to his wife that
they transfer to their own house, but Marie Antonette refused. So, he alone left the
house of the Salientes. Thereafter, he was prevented from seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the representative of his
son, filed a Petition for Habeas Corpus and Custody, 3 docketed as Special Proceedings
No. 03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003,
the trial court issued the following order:

Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents
Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes
are hereby directed to produce and bring before this Court the body of minor
Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 oclock in the
afternoon and to show cause why the said child should not be discharged from
restraint.

Let this Writ be served by the Sheriff or any authorized representative of this Court,
who is directed to immediately make a return.
SO ORDERED. 4

Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but
the same was dismissed on November 10, 2003. The appellate court affirmed the
February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did
not award the custody of the 2-year-old child to any one but was simply the standard
order issued for the production of restrained persons. The appellate court held that
the trial court was still about to conduct a full inquiry, in a summary proceeding, on
the cause of the minors detention and the matter of his custody. The Court of
Appeals ruled thus:

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED. 5

Petitioners moved for reconsideration, which was denied on March 19, 2004.

Hence, petitioners interposed this appeal by certiorari anchored on the following

grounds:

1. The Court of Appeals erred in not pronouncing the respondent judge gravely
abused his discretion, amounting to lack or in excess of jurisdiction in issuing an
order for the petitioner-mother to first show cause why her own three-year old child
in her custody should not be discharged from a so-called "restraint" despite no
evidence at all of restraint and no evidence of compelling reasons of maternal
unfitness to deprive the petitioner-mother of her minor son of tender years. The
assailed orders, resolutions and decisions of the lower court and the Court of
Appeals are clearly void;

2. The Court of Appeals erred in not pronouncing that the respondent judge gravely
abused his discretion in issuing a writ of habeas corpus which clearly is not
warranted considering that there is no unlawful restraint by the mother and
considering further that the law presumes the fitness of the mother, thereby negating
any notion of such mother illegally restraining or confining her very own son of
tender years. The petition is not even sufficient in substance to warrant the writ. The
assailed orders are clearly void.

3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case supports
rather than negates the position of the petitioners.

4. Contrary to the Court of Appeals decision, summary proceeding does violence to

the tender-years-rule
5. The Court of Appeals failed to consider that the private respondent failed to
present prima facie proof of any compelling reason of the unfitness of the
petitioner-mother;

6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS
REMEDY. 6

Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition
for certiorari against the trial courts orders dated January 23, 2003 and February 24,
2003?

Petitioners contend that the order is contrary to Article 213 7 of the Family Code,
which provides that no child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order otherwise. They maintain
that herein respondent Loran had the burden of showing any compelling reason but
failed to present even a prima facie proof thereof.

Petitioners posit that even assuming that there were compelling reasons, the proper
remedy for private respondent was simply an action for custody, but not habeas
corpus. Petitioners assert that habeas corpus is unavailable against the mother who,
under the law, has the right of custody of the minor. They insist there was no illegal
or involuntary restraint of the minor by his own mother. There was no need for the
mother to show cause and explain the custody of her very own child.

Private respondent counters that petitioners argument based on Article 213 of the
Family Code applies only to the second part of his petition regarding the custody of
his son. It does not address the first part, which pertains to his right as the father to
see his son. He asserts that the writ of habeas corpus is available against any person
who restrains the minors right to see his father and vice versa. He avers that the
instant petition is merely filed for delay, for had petitioners really intended to bring
the child before the court in accordance with the new rules on custody of minors,
they would have done so on the dates specified in the January 23, 2003 and the
February 24, 2003 orders of the trial court.

Private respondent maintains that, under the law, he and petitioner Marie Antonette
have shared custody and parental authority over their son. He alleges that at times
when petitioner Marie Antonette is out of the country as required of her job as an
international flight stewardess, he, the father, should have custody of their son and
not the maternal grandparents.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order
of the trial court did not grant custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and explain why they are
restraining his liberty. The assailed order was an interlocutory order precedent to the
trial courts full inquiry into the issue of custody, which was still pending before it.
Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not
appealable but the aggrieved party may file an appropriate special action under Rule
65. The aggrieved party must show that the court gravely abused its discretion in
issuing the interlocutory order. In the present case, it is incumbent upon petitioners
to show that the trial court gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a
person entitled thereto. 9Under Article 211 10 of the Family Code, respondent Loran
and petitioner Marie Antonette have joint parental authority over their son and
consequently joint custody. Further, although the couple is separated de facto, the
issue of custody has yet to be adjudicated by the court. In the absence of a judicial
grant of custody to one parent, both parents are still entitled to the custody of their
child. In the present case, private respondents cause of action is the deprivation of
his right to see his child as alleged in his petition. 11 Hence, the remedy of habeas
corpus is available to him.

In a petition for habeas corpus, the childs welfare is the supreme consideration. The
Child and Youth Welfare Code12 unequivocally provides that in all questions
regarding the care and custody, among others, of the child, his welfare shall be the
paramount consideration. 13

Again, it bears stressing that the order did not grant custody of the minor to any of
the parties but merely directed petitioners to produce the minor in court and explain
why private respondent is prevented from seeing his child. This is in line with the
directive in Section 9 14 of A.M. 03-04-04-SC 15 that within fifteen days after the filing
of the answer or the expiration of the period to file answer, the court shall issue an
order requiring the respondent (herein petitioners) to present the minor before the
court. This was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial adjudication of
custody and serves as a guideline for the proper award of custody by the court.
Petitioners can raise it as a counter argument for private respondents petition for
custody. But it is not a basis for preventing the father to see his own child. Nothing in
the said provision disallows a father from seeing or visiting his child under seven
years of age.

In sum, the trial court did not err in issuing the orders dated January 23, 2003 and
February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for
certiorari against the said orders of the trial court.

WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and
the Resolutiondated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680
are AFFIRMED. Costs against petitioners.

SO ORDERED.
DAISIE T. DAVID, petitioner,
vs.
COURT OF APPEALS, RAMON R. VILLAR, respondents.

Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar,

a businessman in Angeles City. Private respondent is a married man and the father
of four children, all grown-up. After a while, the relationship between petitioner and
private respondent developed into an intimate one, as a result of which a son,
Christopher J., was born on March 9, 1985 to them. Christopher J. was followed by
two more children, both girls, namely Christine, born on June 9, 1986, and Cathy
Mae on April 24, 1988.

The relationship became known to private respondent's wife when Daisie took
Christopher J, to Villar's house at Villa Teresa in Angeles City sometime in 1986 and
introduced him to Villar's legal wife.

After this, the children of Daisie were freely brought by Villar to his house as they
were eventually accepted by his legal family.

In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of
age, to go with his family to Boracay. Daisie agreed, but after the trip, Villar refused
to give back the child. Villar said he had enrolled Christopher J. at the Holy Family
Academy for the next school year.

On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J.

After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a
decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the

petitioner and against the respondent:

1. the rightful custody of the minor Christopher J. T. David is hereby given to the
natural mother, the herein petitioner Daisie T. David;

2. respondent is hereby ordered to give a temporary support of P3,000.00 a month to

the subject minor Christopher J. T. David, Christine David and Cathy Mae David to
take effect upon the finality of this decision; and

3. to pay the costs of this suit.

SO ORDERED.

On appeal, the Court of Appeals reversed, holding:

We agree with the respondent-appellant's view that this is not proper in a habeas
corpus case.
Law and jurisprudence wherein the question of custody of a minor child may be
decided in a habeas corpus case contemplate a situation where the parents are married
to each other but are separated. This is so because under the Family Code, the father
and mother have joint parental authority over their legitimate children and in case of
separation of the parents there is need to determine rightful custody of their children.
The same does not hold true in an adulterous relationship, as in the case at bar, the
child born out of such a relationship is under the parental authority of the mother by
express provision of the law. Hence, the question of custody and support should be
brought in a case singularly filed for the purpose. In point of fact, this is more
advisable in the case at bar because the trial court did not acquire jurisdiction over
the other minor children of the petitioner-appellee and respondent-appellant and,
therefore, cannot properly provide for their support.

Admittedly, respondent-appellant is financially well-off, he being a very rich

businessman; whereas, petitioner-appellee depends upon her sisters and parents for
support. In fact, he financially supported petitioner-appellee and her three minor
children. It is, therefore, for the best interest of Christopher J that he should
temporarily remain under the custody of respondent-appellant until the issue on
custody and support shall have been determined in a proper case.

WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW ONE
ENTERED dismissing the petition for habeas corpus in Special Proceeding No. 4489.

Daisie in turn filed this petition for review of the appellate court's decision.

Rule 102, 1 of the Rules of Court provides that "the writ of habeas corpus shall extend
to all cases of illegal confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto."

It is indeed true, as the Court of Appeals observed, that the determination of the
right to the custody of minor children is relevant in cases where the parents, who are
married to each other, are for some reason separated from each other. It does not
follow, however, that it cannot arise in any other situation. For example, in the case
of Salvaa v. Gaela,1 it was held that the writ of habeas corpus is the proper remedy to
enable parents to regain the custody of a minor daughter even though the latter be in
the custody of a third person of her free will because the parents were compelling
her to marry a man against her will.

In the case at bar, Christopher J. is an illegitimate child since at the time of his
conception, his father, private respondent Ramon R. Villar, was married to another
woman other than the child's mother. As such, pursuant to Art. 176 of the Family
Code, Christopher J. is under the parental authority of his mother, the herein
petitioner, who, as a consequence of such authority, is entitled to have custody of
him.2 Since, admittedly, petitioner has been deprived of her rightful custody of her
child by private respondent, she is entitled to issuance of the writ of habeas corpus.
Indeed, Rule 1021 1 makes no distinction between the case of a mother who is
separated from her husband and is entitled to the custody of her child and that of a
mother of an illegitimate child who, by law, is vested with sole parental authority,
but is deprived of her rightful custody of her child.

The fact that private respondent has recognized the minor child may be a ground for
ordering him to give support to the latter, but not for giving him custody of the child.
Under Art. 213 of the Family Code, "no child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise."3

Nor is the fact that private respondent is well-off a reason for depriving petitioner of
the custody of her children, especially considering that she has been able to rear and
support them on her own since they were born. Petitioner is a market vendor earning
from P2,000 to P3,000 per month in 1993 when the RTC decision was rendered. She
augments her income by working as secretary at the Computer System Specialist, Inc.
earning a monthly income of P4,500.00. She has an arrangement with her employer
so that she can personally attend to her children. She works up to 8:00 o'clock in the
evening to make up for time lost during the day. That she receives help from her
parents and sister for the support of the three children is not a point against her.
Cooperation, compassion, love and concern for every member of the family are
characteristics of the close family ties that bind the Filipino family and have made it
what it is.

Daisie and her children may not be enjoying a life of affluence that private
respondent promises if the child lives with him. It is enough, however, that
petitioner is earning a decent living and is able to support her children according to
her means.

The Regional Trial Court ordered private respondent to give temporary support to
petitioner in the amount of P3,000.00 a month, pending the filing of an action for
support, after finding that private respondent did not give any support to his three
children by Daisie, except the meager amount of P500.00 a week which he stopped
giving them on June 23, 1992. He is a rich man who professes love for his children. In
fact he filed a motion for the execution of the decision of the Court of Appeals,
alleging that he had observed his son "to be physically weak and pale because of
malnutrition and deprivation of the luxury and amenities he was accustomed to
when in the former custody of the respondent." He prayed that he be given the
custody of the child so that he can provide him with the "proper care and education."

Although the question of support is proper in a proceeding for that purpose, the
grant of support in this case is justified by the fact that private respondent has
expressed willingness to support the minor child. The order for payment of
allowance need not be conditioned on the grant to him of custody of the child. Under
Art. 204 of the Family Code, a person obliged to give support can fulfill his
obligation either by paying the allowance fixed by the court or by receiving and
maintaining in the family dwelling the person who is entitled to support unless, in
the latter case, there is "a moral or legal obstacle thereto."

In the case at bar, as has already been pointed out, Christopher J., being less than
seven years of age at least at the time the case was decided by the RTC, cannot be
taken from the mother's custody. Even now that the child is over seven years of age,
the mother's custody over him will have to be upheld because the child categorically
expressed preference to live with his mother. Under Art. 213 of the Family Code,
courts must respect the "choice of the child over seven years of age, unless the parent
chosen is unfit" and here it has not been shown that the mother is in any way unfit to
have custody of her child. Indeed, if private respondent loves his child, he should not
condition the grant of support for him on the award of his custody to him (private
respondent).

WHEREFORE, the decision of the Court of Appeals is REVERSED and private

respondent is ORDERED to deliver the minor Christopher J. T. David to the custody
of his mother, the herein petitioner, and to give him temporary support in the
amount of P3,000.00, pending the fixing of the amount of support in an appropriate
action.

SO ORDERED.