FIRST DIVISION

[G.R. No. 144763. September 3, 2002]

REYMOND B. LAXAMANA, petitioner, vs. MA. LOURDES* D. LAXAMANA, respondent.

DECISION
YNARES-SANTIAGO, J.:

This is another sad tale of an estranged couples tug-of-war over the custody of their minor children. Petitioner Reymond B.
Laxamana and respondent Ma. Lourdes D. Laxamana met sometime in 1983. Petitioner, who came from a well-to-do family, was a
graduate of Bachelor of Laws, while respondent, a holder of a degree in banking and finance, worked in a bank.After a whirlwind courtship,
petitioner, 31 years old and respondent, 33, got married on June 6, 1984. [1] Respondent quit her job and became a full-time
housewife. Petitioner, on the other hand, operated buy and sell, fishpond, and restaurant businesses for a living. The union was blessed
with three children twin brothers Joseph and Vincent, born on March 15, 1985, and Michael, born on June 19, 1986. [2]
All went well until petitioner became a drug dependent. In October 1991, he was confined at the Estrellas Home Care Clinic in
Quezon City. He underwent psychotherapy and psychopharmacological treatment and was discharged on November 16, 1991. [3] Upon
petition of respondent, the Regional Trial Court of Quezon City, Branch 101, ordered petitioners confinement at the NARCOM-DRC for
treatment and rehabilitation.[4] Again, on October 30, 1996, the trial court granted petitioners voluntary confinement for treatment and
rehabilitation at the National Bureau of Investigation-TRC.[5]
On April 25, 1997, the court issued an order declaring petitioner already drug-free and directing him to report to a certain Dr. Casimiro
for out-patient counseling for 6 months to one (1) year.[6]
Despite several confinements, respondent claimed petitioner was not fully rehabilitated. His drug dependence worsened and it
became difficult for respondent and her children to live with him. Petitioner allegedly became violent and irritable. On some occasions, he
even physically assaulted respondent. Thus, on June 17, 1999, respondent and her 3 children abandoned petitioner and transferred to
the house of her relatives.
On August 31, 1999, petitioner filed with the Regional Trial Court of Quezon City, Branch 107, the instant petition for habeas
corpus praying for custody of his three children.[7]Respondent opposed the petition, citing the drug dependence of petitioner. [8]
Meanwhile, on September 24, 1999, respondent filed a petition for annulment of marriage with Branch 102 of the Regional Trial
Court of Quezon City.[9]
On September 27, 1999, petitioner filed in the habeas corpus case, a motion seeking visitation rights over his children. [10] On
December 7, 1999, after the parties reached an agreement, the court issued an order granting visitation rights to petitioner and directing
the parties to undergo psychiatric and psychological examination by a psychiatrist of their common choice. The parties further agreed to
submit the case for resolution after the trial courts receipt of the results of their psychiatric examination. The full text of said order reads:

The parties appeared with their respective lawyers. A conference was held in open Court and the parties agreed on the following:

Effective this Saturday and every Saturday thereafter until further order the petitioner shall fetch the children every Saturday and
Sunday at 9:00 oclock in the morning from the house of the sister of respondent, Mrs. Corazon Soriano and to be returned at 5:00
oclock in the afternoon of the same days.

That the parties agreed to submit themselves to Dr. Teresito Ocampo for psychiatric/psychological examination. Dr. Ocampo is hereby
advised to go over the records of this case to enable him to have a thorough background of the problem. He is hereby ordered to
submit his findings directly to this Court without furnishing the parties copies of his report. And after the receipt of that report, thereafter,
the case shall be deemed submitted for decision.[11]

On January 6, 2000, Dr. Ocampo submitted the results of his psychiatric evaluation on the parties and their children. Pertinent
portions thereof state:

SINGLY and COLLECTIVELY, the following information was obtained in the interview of the 3 children:

(1) THEY were affected psychologically by the drug-related behavior of their father:

a. they have a difficult time concentrating on their studies.

b. they are envious of their classmates whose families live in peace and harmony.

c. once, MICHAEL had to quit school temporarily.

(2) THEY witnessed their father when he was under the influence of shabu.
(3) THEY think their father had been angry at their paternal grandmother and this anger was displaced to their mother.

(4) THEY hope their father will completely and permanently recover from his drug habit; and their criteria of his full recovery include:

a. he will regain his easy-going attitude.

b. he wont be hot-headed anymore and would not drive their van recklessly.

c. he would not tell unverifiable stories anymore.

d. he would not poke a gun on his own head and ask the children who they love better, mom or dad.

(5) At one point one of the sons, became very emotional while he was narrating his story and he cried. I had to stop the interview.

(6) THEIR mother was fearful and terrified when their father quarreled with her.

(7) THEY hope their visits to their father will not interfere with their school and academic schedules.

xxxxxxxxx

(3) MARILOU is one of 4 siblings. She graduated from college with a degree in banking and finance. SHE was a carreer (sic) woman;
worked for a bank for ten years; subsequently quit her job to devote more time to her family.

(4) REYMOND is one of 5 siblings in a well-to-do family. His father was a physician. During his developmental years, he recalled how
his mother complained incessantly about how bad the father was; only to find later that the truth was opposite to the complaints of his
mother; that his father was nice, logical and understanding. He recalled how he unselfishly served his father --- he opened the door
when he arrived home; he got his portfolio; he brought the days newspaper; he removed his shoes; he brought his glass of beer or his
shot of whisky. In short, he served him like a servant. His father died of stroke in 1990.

REYMOND graduated from college with a degree in LAW in 1984; he did not pass the bar.

His work history is as follows:

a. 1985 to 1989 he operated fishponds.

b. 1976 to 1991 simultaneously, he operated restaurant.

c. 1991 he engaged in the trading of vegetable, cooking oil, and mangos.

d. HE handled the leasing of a family property to a fast food company.

The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES OF MARILOU showed a woman who showed
the psychological effects of the trauma she had in the past. She is slightly edgy and fidgety with any external noise. SHE answered all
my questions coherently. Her emotional state was stable throughout the interview. She is of average intelligence. She was oriented to
person, place and date. Her memory for recent and remote events was intact. She could process sets of figures and sets of similarities
and differences. Her content of thought was negative for delusions, hallucinations, paranoia, suicidal and homicidal ideation. She could
process abstract ideas and general information. Her attention span was adequate. There was no evidence of impaired judgment.

The Rorschach ink blot test gave responses such as man touching a woman, 2 people on a hi-five , 2 women chatting, beast, stuffed
animal, etc. Her past reflected on her psyche. There is no creative process.There were no bizarre ideas.

The ZUNG anxiety/depression test highlighted I get tired for no reason; I feel that I am useful and needed (re, son). There is moderate
depression. However, she could still make competent decisions.

The Social Adaptation Scale scored well in her capacity to adapt to her situation. There is no evidence of losing control.

The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES of REYMOND showed an individual who
presented himself in the best situation he could possibly be. He is cool, calm and collected. He answered all my questions
coherently. He is of average intelligence. He was oriented to person, place and date. His memory for recent and remote events was
intace (sic). His content of thought was negative for delusions, hallucinations, paranoia, suicidal and homicidal ideation. His attention
span was adequate. He could process abstract ideas, sets of figures, and general information.
The Rorschach ink blot test gave responses such as distorted chest , butterfly with scattered color, cat ran over by a car, nothing 2
people, monster etc. There is no central theme in his responses. There were no bizarre ideas.

The Zung anxiety/depression test: My mind is as clear as it used to be (most of the time). There was no evidence of brain
damage. There is no significant affective response that would affect his rationality.

The Social Adaptive Scale scored well in his capacity to adapt to his situation. He reached out well to others. He is in very good control
of his emotions.

BASED ON MY FINDINGS I MADE THE FOLLOWING COMMENTS AND CONCLUSIONS:

I. The CRITERIA for cure in drug addiction consist of:

1. 5-years and 10-years intervals of drug-free periods.

2. change for the better of the maladaptive behaviors of the addict consisting of telling lies, manipulative behavior,
melodramatic and hysterical actions.

3. constructive and reproductive outlets for the mental and physical energies of the addict.

4. behavior oriented towards spiritual values and other things.

II BASED on such scientific and observable criteria, I do not yet consider REYMOND LAXAMANA completely cured even
though his drug urine test at Medical City for shabu was negative. (Emphasis supplied)

III I DO NOT DETECT any evidence that the paternal visits of the sons would be harmful or they would be in any danger. The academic
schedules of the sons has be taken into account in determining the length and frequency of their visits.

x x x x x x x x x.[12]

On January 14, 2000, the trial court rendered the assailed decision awarding the custody of the three children to respondent and
giving visitation rights to petitioner. The dispositive portion thereof states:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. The children, Joseph, Michael and Vincent all surnamed Laxamana are hereby ordered to remain under the custody of the
respondent.

2. The visitation arrangement as per Order of December 7, 1999 is hereby incorporated and forms part of this Decision. The parties are
enjoined to comply with the terms stated therein.

3. The petitioner is hereby ordered to undergo urine drug screen for shabu for three times (3x) per month every ten (10) days, with the
Dangerous Drugs Board. The said Board is hereby ordered to submit the results of all tests immediately as directed to this Court.

4. The petitioner is hereby referred to undergo regular counseling at the Free-Clinic at the East Avenue Medical Center, Department of
Health Out Patient Psychiatry Department until further order. For this purpose, it is suggested that he should see Dr. Teresito P.
Ocampo to make arrangements for said counseling.

Let copies of this Decision be furnished the Dangerous Drugs Board and the Free-Clinic, Out Patient Psychiatry Department, East
Avenue Medical Center, Department of Health for their information and guidance.

SO ORDERED.[13]

Aggrieved, petitioner filed the instant petition for review on certiorari under Rule 45 of the Rules of Court, based on the following:
I

THE COURT A QUO HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT
RESOLVED THE ISSUE OF CUSTODY WITHOUT CONDUCTING A TRIAL TO DETERMINE FACTUAL ISSUES.

II
THE COURT A QUO HAS RESOLVED THE ISSUE OF CUSTODY IN A MANNER NOT IN ACCORD WITH LAW AND WITH THE
APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT WHEN IT RESOLVED THE ISSUE OF CUSTODY WITHOUT
CONSIDERING THE PARAMOUNT INTEREST AND WELFARE OF HEREIN PARTIES THREE (3) MINOR CHILDREN.

III

THE ASSAILED DECISION IS NULL AND VOID AS IT DOES NOT COMPLY WITH SECTION 14 ARTICLE VIII OF THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES.[14]

The core issue for resolution in the instant petition is whether or not the trial court considered the paramount interest and welfare of
the children in awarding their custody to respondent.
In controversies involving the care, custody and control of their minor children, the contending parents stand on equal footing before
the court who shall make the selection according to the best interest of the child. The child if over seven years of age may be permitted
to choose which parent he/she prefers to live with, but the court is not bound by such choice if the parent so chosen is unfit. In all cases,
the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the
respective resources as well as social and moral situations of the opposing parents. [15]
In Medina v. Makabali,[16] we stressed that this is as it should be, for in the continual evolution of legal institutions, the patria
potestas has been transformed from the jus vitae ac necis(right of life and death) of the Roman law, under which the offspring was virtually
a chattel of his parents, into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is
now supreme. There is no power, but a task; no complex rights of parents but a sum of duties; no sovereignty, but a sacred trust for the
welfare of the minor.
Mindful of the nature of the case at bar, the court a quo should have conducted a trial notwithstanding the agreement of the parties
to submit the case for resolution on the basis, inter alia, of the psychiatric report of Dr. Teresito. Thus, petitioner is not estopped from
questioning the absence of a trial considering that said psychiatric report, which was the courts primary basis in awarding custody to
respondent, is insufficient to justify the decision. The fundamental policy of the State to promote and protect the welfare of children shall
not be disregarded by mere technicality in resolving disputes which involve the family and the youth. [17] While petitioner may have a
history of drug dependence, the records are inadequate as to his moral, financial and social well-being. The results of the psychiatric
evaluation showing that he is not yet completely cured may render him unfit to take custody of the children, but there is no evidence to
show that respondent is unfit to provide the children with adequate support, education, as well as moral and intellectual training and
development. Moreover, the children in this case were 14 and 15 years old at the time of the promulgation of the decision, yet the court
did not ascertain their choice as to which parent they want to live with. In its September 8, 1999 order, the trial court merely stated
that: The children were asked as to whether they would like to be with petitioner but there are indications that they entertain fears in their
hearts and want to be sure that their father is no longer a drug dependent.[18] There is no showing that the court ascertained the categorical
choice of the children. These inadequacies could have been remedied by an exhaustive trial probing into the accuracy of Dr. Ocampos
report and the capacity of both parties to raise their children. The trial court was remiss in the fulfillment of its duties when it approved the
agreement of the parties to submit the case for decision on the basis of sketchy findings of facts.
In Lacson v. Lacson,[19] the case was remanded to the trial court with respect to the issue of custody. In the said case, the court a
quo resolved the question of the childrens custody based on the amicable settlement of the spouses. Stressing the need for presentation
of evidence and a thorough proceedings, we explained

It is clear that every child [has] rights which are not and should not be dependent solely on the wishes, much less the whims and
caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the
parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the rights
granted to him by law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the
records reveals that no such evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the
spouses-parents. To be sure, this was not sufficient basis to determine the fitness of each parent to be the custodian of the children.

Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the choice of the parent he
wishes to live with. x x x.

In the instant case, the proceedings before the trial court leave much to be desired. While a remand of this case would mean further
delay, the childrens paramount interest demand that further proceedings be conducted to determine the fitness of both petitioner and
respondent to assume custody of their minor children.
WHEREFORE, in view of all the foregoing, the instant case is REMANDED to the Regional Trial Court of Quezon City, Branch 107,
for the purpose of receiving evidence to determine the fitness of petitioner and respondent to take custody of their children. Pending the
final disposition of this case, custody shall remain with respondent but subject to petitioners visitation rights in accordance with the
December 7, 1999 order of the trial court.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.
 FIRST DIVISION
[G.R. No. 114742. July 17, 1997]
CARLITOS E. SILVA, petitioner, vs. HON. COURT OF APPEALS and SUZANNE T. GONZALES, respondents.

DECISION
VITUG, J.:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing and
safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be
renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their
offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and
imminent threat to the well-being of the child.
The petition bears upon this concern.
Carlitos E. Silva, a married businessman, and Suzanne T. Gonzales, an unmarried local actress, cohabited without the benefit of
marriage. The union saw the birth of two children:Ramon Carlos and Rica Natalia. Not very long after, a rift in their relationship surfaced. It
began, according to Silva, when Gonzales decided to resume her acting career over his vigorous objections. The assertion was quickly
refuted by Gonzales who claimed that she, in fact, had never stopped working throughout their relationship. At any rate, the two eventually
parted ways.
The instant controversy was spawned, in February 1986, by the refusal of Gonzales to allow Silva, in apparent contravention of a
previous understanding, to have the children in his company on weekends. Silva filed a petition for custodial rights over the children
before the Regional Trial Court (RTC), Branch 78, of Quezon City. The petition was opposed by Gonzales who averred that Silva often
engaged in "gambling and womanizing" which she feared could affect the moral and social values of the children.
In an order, dated 07 April 1989, the trial court adjudged:

"WHEREFORE, premises considered, judgment is rendered directing respondent to allow herein petitioner visitorial rights to his
children during Saturdays and/or Sundays, but in no case should he take out the children without the written consent of the mother
or respondent herein. No pronouncement as to costs."[1]

Silva appeared somehow satisfied with the judgment for only Gonzales interposed an appeal from the RTCs order to the Court of
Appeals.
In the meantime, Gonzales got married to a Dutch national. The newlyweds emigrated to Holland with Ramon Carlos and Rica
Natalia.
On 23 September 1993, the appellate tribunal ruled in favor of Gonzales; it held:

"In all questions, regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration' -
not the welfare of the parents (Art. 8, PD 603). Under the predicament and/or status of both petitioner-appellee and respondent-
appellant, We find it more wholesome morally and emotionally for the children if we put a stop to the rotation of custody of said
children. Allowing these children to stay with their mother on weekdays and then with their father and the latter's live-in partner on
weekends may not be conducive to a normal up-bringing of children of tender age. There is no telling how this kind of set-up, no matter
how temporary and/or remote, would affect the moral and emotional conditions of the minor children. Knowing that they are illegitimate
is hard enough, but having to live with it, witnessing their father living with a woman not their mother may have a more damaging effect
upon them.

"Article 3 of PD 603, otherwise known as the Child and Youth Welfare Code, provides in part:

"`Art. 3. Rights of the Child. - x x x

`(1) x x x

`(2) x x x

`(3) x x x

`(4) x x x

`(5) Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment and the strengthening of his
character.
`(6) x x x

`(7) x x x

`(8) Every child has the right to protection against exploitation, improper influences, hazards and other conditions or circumstances
prejudicial to his physical, mental, emotional, social and moral development.

`x x x'

"With Articles 3 and 8 of PD 603, in mind, We find it to the best interest of the minor children, to deny visitorial and/or temporary
custodial rights to the father, even at the expense of hurting said parent. After all, if indeed his love for the children is genuine and more
divine than the love for himself, a little self-sacrifice and self-denial may bring more benefit to the children. While petitioner-appellee, as
father, may not intentionally prejudice the children by improper influence, what the children may witness and hear while in their father's
house may not be in keeping with the atmosphere of morality and rectitude where they should be brought up.

"The children concerned are still in their early formative years of life. The molding of the character of the child starts at home. A home
with only one parent is more normal than two separate houses - (one house where one parent lives and another house where the other
parent with another woman/man lives). After all, under Article 176 of the Family Code, illegitimate children are supposed to use the
surname of and shall be under the parental authority of their mother.

"The child is one of the most important assets of the nation. It is thus important we be careful in rearing the children especially so if they
are illegitimates, as in this case.

"WHEREFORE, in view of all the foregoing, judgment is hereby rendered giving due course to the appeal. The Order of the Regional
Trial Court of Quezon City dated April 7, 1989 is hereby reversed.Petitioner-appellee's petition for visitorial rights is hereby denied.

"SO ORDERED."[2]

Silva comes to this Court for relief.

The issue before us is not really a question of child custody; instead, the case merely concerns the visitation right of a parent over
his children which the trial court has adjudged in favor of petitioner by holding that he shall have visitorial rights to his children during
Saturdays and/or Sundays, but in no case (could) he take out the children without the written consent of the mother x x x." The visitation
right referred to is the right of access of a noncustodial parent to his or her child or children. [3]
There is, despite a dearth of specific legal provisions, enough recognition on the inherent and natural right of parents over their
children. Article 150 of the Family Code expresses that "(f)amily relations include those x x x (2) (b)etween parents and children; x x
x." Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of parents and those exercising parental
authority to, among other things, keep children in their company and to give them love and affection, advice and counsel, companionship
and understanding.The Constitution itself speaks in terms of the "natural and primary rights of parents in the rearing of the
youth.[4] There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate
relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond
the legitimate members of the family and so explicitly encompass illegitimate relationships as well. [5] Then, too, and most importantly, in
the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides
for appropriate visitation rights to parents who are not given custody of their children.
There is no doubt that in all cases involving a child, his interest and welfare is always the paramount consideration. The Court shares
the view of the Solicitor General, who has recommended due course to the petition, that a few hours spent by petitioner with the children,
however, could not all be that detrimental to the children. Similarly, what the trial court has observed is not entirely without merit; thus:

"The allegations of respondent against the character of petitioner, even assuming as true, cannot be taken as sufficient basis to render
petitioner an unfit father. The fears expressed by respondent to the effect that petitioner shall be able to corrupt and degrade their
children once allowed to even temporarily associate with petitioner is but the product of respondent's unfounded imagination, for no
man, bereft of all moral persuasions and goodness, would ever take the trouble and expense in instituting a legal action for the purpose
of seeing his illegitimate children. It can just be imagined the deep sorrows of a father who is deprived of his children of tender ages."[6]

The Court appreciates the apprehensions of private respondent and their well-meant concern for the children; nevertheless, it seems
unlikely that petitioner would have ulterior motives or undue designs more than a parents natural desire to be able to call on, even if it
were only on brief visits, his own children. The trial court, in any case, has seen it fit to understandably provide this precautionary measure,
i.e., "in no case (can petitioner) take out the children without the written consent of the mother."
WHEREFORE, the decision of the trial court is REINSTATED, reversing thereby the judgment of the appellate court which is hereby
SET ASIDE. No costs.
SO ORDERED.
 SECOND DIVISION
[G.R. No. 118870. March 29, 1996]
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (Ninth Division) and RAY C. PEREZ, respondents.

DECISION
ROMERO, J.:

Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his sagacious, if, at
times unorthodox, manner of resolving conflicts, the most celebrated case being that when his authority was invoked to determine the
identity of the real mother as between two women claiming the same infant. Since there could only be one mother, the daunting task that
confronted the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of deciding, as between father and mother, who should have rightful custody of
a child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a decision have
arrived at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the other.
On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boys father Ray C. Perez,
reversing the trial courts decision to grant custody to Nerissa Z. Perez, the childs mother.
Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner herein, is a
registered nurse. They were married in Cebu on December 6, 1986. After six miscarriages, two operations and a high-risk pregnancy,
petitioner finally gave birth to Ray Perez II in New York on July 20, 1992.
Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest house
in Mandaue City, Cebu. She also sought medical attention for her successive miscarriages in New York. She became a resident alien in
February 1992.
Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his wife, however, he
had only a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the U.S. She alleged
that they came home only for a five-week vacation and that they all had round-trip tickets. However, her husband stayed behind to take
care of his sick mother and promised to follow her with the baby. According to Ray, they had agreed to reside permanently in
the Philippines but once Nerissa was in New York, she changed her mind and continued working. She was supposed to come back
immediately after winding up her affairs there.
When Nerissa came home a few days before Ray IIs first birthday, the couple was no longer on good terms. That their love for each
other was fading became apparent from their serious quarrels. Petitioner did not want to live near her in-laws and rely solely on her
husbands meager income of P5,000.00.1 She longed to be with her only child but he was being kept away from her by her husband. Thus,
she did not want to leave RJ (Ray Junior) with her husband and in-laws. She wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He maintained that
it would not be difficult to live here since they have their own home and a car. They could live comfortably on his P 15,000.00 monthly
income2 as they were not burdened with having to pay any debts.
Petitioner was forced to move to her parents home on Guizo Street in Mandaue. Despite mediation by the priest who solemnized
their marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus 3 asking respondent Ray C. Perez to surrender the custody of
their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother, Nerissa Perez, citing
the second paragraph of Article 213 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. The dispositive portion of the Order reads:

WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn over the custody of their child
Ray Cortes Perez II, his passport and roundtrip ticket to herein petitioner with a warning that if he will escape together with the child for
the purpose of hiding the minor child instead of complying with this Order, that warrant for his arrest will be issued.

SO ORDERED.4

Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial courts order and awarded custody of
the boy to his father.5
 Petitioners motion for reconsideration having been denied, 6 she filed the instant petition for review where the sole issue is the
custody of Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa Perez custody
over Ray II even if the child is under seven years old.It held that granting custody to the boys father would be for the childs best interest
and welfare.7
Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only child. It is sad that
petitioner and private respondent have not found it in their hearts to understand each other and live together once again as a
family. Separated in fact, they now seek the Courts assistance in the matter of custody or parental authority over the child.
The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the mother complement
each other in giving nurture and providing that holistic care which takes into account the physical, emotional, psychological, mental, social
and spiritual needs of the child. By precept and example, they mold his character during his crucial formative years.
However, the Courts intervention is sought in order that a decision may be made as to which parent shall be given custody over the
young boy. The Courts duty is to determine whether Ray Perez II will be better off with petitioner or with private respondent. We are not
called upon to declare which party committed the greater fault in their domestic quarrel.
When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It provides:

ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court
shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen
is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.
(Italics supplied)

Since the Code does not qualify the word separation to mean legal separation decreed by a court, couples who are separated in
fact, such as petitioner and private respondent, are covered within its terms. 8
The Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides:

SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are divorced or living separately and
apart from each other, and the questions as to the care, custody, and control of a child or children of their marriage is brought before a
Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent,
shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it
prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child by reason of moral
depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother,
unless the court finds there are compelling reasons therefor. (Italics supplied)

The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother
unless the court finds compelling reasons to order otherwise. The use of the word shall in Article 213 of the Family Code and Rule 99,
Section 6 of the Revised Rules of Court connotes a mandatory character. In the case of Lacson v. San Jose-Lacson,9 the Court declared:

The use of the word shall in Article 36310 of the Civil Code, coupled with the observations made by the Code Commission in respect to
the said legal provision, underscores its mandatory character. It prohibits in no uncertain terms the separation of a mother and her child
below seven years, unless such separation is grounded upon compelling reasons as determined by a court. 11

The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code
Commission:

The general rule is recommended in order to avoid many 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 divorce decree (relative divorce) will ordinarily be sufficient
punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation.
(Report of the Code Commission, p. 12)12

The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be separated from the
mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child and Youth Welfare Code (Presidential
Decree No. 603) which reduced the childs age to five years.13
The general rule that a child under seven years of age shall not be separated from his mother finds its raison detre in the basic need
of a child for his mothers loving care.14 Only the most compelling of reasons shall justify the courts awarding the custody of such a child
to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been
considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, 15 unemployment and
immorality,16habitual drunkenness,17 drug addiction, maltreatment of the child, insanity and being sick with a communicable disease. 18
 It has long been settled that in custody cases,19 the foremost consideration is always the Welfare and best interest of the child. In
fact, no less than an international instrument, the Convention on the Rights of the Child provides: In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.20
Courts invariably look into all relevant factors presented by the contending parents, such as their material resources, social and
moral situations.21
In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have
ample means.
Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point against her. The
records, however, show that she is employed in a New York hospital22 and was, at the time the petition was filed, still abroad. 23 She
testified that she intends to apply for a job elsewhere, presumably to improve her work environment and augment her income, as well as
for convenience.24 The Court takes judicial notice of the fact that a registered nurse, such as petitioner, is still very much in demand in
the United States. Unlike private respondent, a doctor who by his own admission could not find employment there, petitioner immediately
got a job in New York. Considering her skill and experience, petitioner should find no difficulty in obtaining work elsewhere, should she
desire to do so.
The decision under review casts doubt on petitioners capability to take care of the child, particularly since she works on twelve-hour
shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is alleged that she cannot properly attend
to him. This conclusion is as unwarranted as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive
her of quality time for Ray II. Quite a number of working mothers who are away from home for longer periods of time are still able to raise
a family well, applying time management principles judiciously. Second, many a mother, finding herself in such a position, has invited her
own mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after the child until he is
able to take care of himself. Others go on leave from work until such time as the child can be entrusted to day-care centers. Delegating
child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter
exercises supervision, for even in our culture, children are often brought up by housemaids or yayas under the eagle eyes of the
mother. Third, private respondents work schedule was not presented in evidence at the trial.Although he is a general practitioner, the
records merely show that he maintains a clinic, works for several companies on retainer basis and teaches part-time.25 Hence, respondent
courts conclusion that his work schedule is flexible (and h)e can always find time for his son 26 is not well-founded. Fourth, the fact that
private respondent lives near his parents and sister is not crucial in this case. Fifth, petitioners work schedule cited in the respondent
courts decision is not necessarily permanent. Hospitals work in shifts and, given a mothers instinctive desire to lavish upon her child the
utmost care, petitioner may be expected to arrange her schedule in such a way as to allocate time for him. Finally, it does not follow that
petitioner values her career more than her family simply because she wants to work in the United States. There are any number of
reasons for a persons seeking a job outside the country, e.g. to augment her income for the familys benefit and welfare, and for
psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned enough from her job to be able to
construct a house for the family in Mandaue City. The record describes sketchily the relations between Ray and Nerissa Perez. The
transcripts of the three hearings are inadequate to show that petitioner did not exert earnest efforts and make sacrifices to save her
marriage.
It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated several times over
a period of six years to finally bear one, only for the infant to be snatched from her before he has even reached his first year. The mothers
role in the life of her child, such as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mothers love has been immortalized
times without number, finding as it does, its justification, not in fantasy but in reality.
WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27, 1994 as well as its
Resolution dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Order of the trial court dated August 27, 1993 is hereby
REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his mother, herein petitioner Nerissa Z. Perez. This decision is
immediately executory.
SO ORDERED.
 SECOND DIVISION
[G.R. No. 122906. February 7, 2002]
DINAH B. TONOG, petitioner, vs. COURT OF APPEALS and EDGAR V. DAGUIMOL, respondents.

DECISION
DE LEON, JR., J.:

Before us is a petition for review on certiorari seeking the reversal of two (2) Resolutions dated August 29, 1995 and November 29,
1995 issued by the former Second Division[1] of the Court of Appeals in CA-G.R. SP No. 35971. The first resolution modified the appellate
courts decision promulgated in the said case, and granted custody of the minor, Gardin Faith Belarde Tonog, to private respondent. The
second resolution denied petitioners motion for reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave birth[2] to Gardin Faith Belarde Tonog, her illegitimate daughter with private
respondent Edgar V. Daguimol. Petitioner was then a nursing student while private respondent was a licensed physician. They cohabited
for a time and lived with private respondents parents and sister in the latters house in Quezon Citywhere the infant, Gardin Faith, was a
welcome addition to the family.
A year after the birth of Gardin Faith, petitioner left for the United States of America where she found work as a registered
nurse. Gardin Faith was left in the care of her father (private respondent herein) and paternal grandparents.
On January 10, 1992, private respondent filed a petition for guardianship over Gardin Faith, docketed as Sp. Proc. No. Q-92-11053,
in the Regional Trial Court of Quezon City. On March 9, 1992, the trial court rendered judgment appointing private respondent as legal
guardian of the minor, Gardin Faith.
Petitioner avers that she learned of the judgment of the trial court rendered in Sp. Proc. No. Q-92-11053 only on April 1,
1992. Accordingly, on May 27, 1992, she filed a petition for relief from judgment. In a resolution dated September 15, 1992, the trial court
set aside its original judgment and allowed petitioner to file her opposition to private respondents petition. The latter, in turn, filed a motion
for reconsideration. In a related incident, petitioner filed on October 4, 1993, a motion to remand custody of Gardin Faith to her.
On November 18, 1994, the trial court issued a resolution denying private respondents motion for reconsideration and granting
petitioners motion for custody of their child, Gardin. Petitioner moved for immediate execution of the said resolution.
Due to the adverse turn of events, private respondent filed a petition for certiorari before the Court of Appeals, docketed as CA-G.R.
SP No. 35971, questioning the actuations of the trial court. On March 21, 1995, the appellate court dismissed the petition on the ground
of lack of merit. However, after private respondent filed a motion for reconsideration, the appellate court issued a
Resolution[3] dated August 29, 1995 modifying its decision, as follows:

Although We do find the Petition dismissible, insofar as it assails the September 15, 1993 Resolution of the respondent Court, giving
due course to private respondents Petition for Relief from Judgment, and the November 18, 1995 Resolution denying his Motion for
Reconsideration, We discern a good ground to let physical custody of subject child, Gardin Faith Belarde Tonog, continue under the
petitioner, with whom the said child had been living, since birth.

While it is understandable for private respondent, as mother, to assert and seek enforcement of her legal and natural rights as the
natural guardian of her child, the emotional and psychological effects upon the latter of a change in custody should be considered. To
be sure, transfer of custody of the child from petitioner to private respondent will be painful for the child who, all her life, has been in the
company of petitioner and her paternal grandparents.

Now, inasmuch as the issue of guardianship and custody over the same child is still pending determination before the respondent
Court, the possibility of petitioners appointment as the guardian cannot be discounted. It would certainly wreak havoc on the childs
psychological make-up to give her to the custody of private respondent, only to return her to petitioner should the latter prevail in the
main case.Subjecting the child to emotional seesaw should be avoided. It is thus more prudent to let physical custody of the child in
question be with petitioner until the matter of her custody shall have been determined by final judgment.

WHEREFORE, the Decision, promulgated here on March 21, 1995 is accordingly MODIFIED, and status quo with respect to the
physical custody of the child, Gardin Faith Belarde Tonog, is ordered. It is understood that the latter shall remain with petitioner until
otherwise adjudged.

Petitioner thus interposed the instant appeal after the appellate court denied her motion for reconsideration in its
Resolution[4] dated November 29, 1995.
Petitioner contends that she is entitled to the custody of the minor, Gardin Faith, as a matter of law. First, as the mother of Gardin
Faith, the law confers parental authority upon her as the mother of the illegitimate minor. Second, Gardin Faith cannot be separated from
her since she had not, as of then, attained the age of seven. Employing simple arithmetic however, it appears that Gardin Faith is now
twelve years old.
In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the child.[5] In arriving at its decision
as to whom custody of the minor should be given, the court must take into account the respective resources and social and moral
situations of the contending parents.[6]
In turn, the parents right to custody over their children is enshrined in law. Article 220 of the Family Code thus provides that parents
and individuals exercising parental authority over their unemancipated children are entitled, among other rights, to keep them in their
company. In legal contemplation, the true nature of the parent-child relationship encompasses much more than the implication of
ascendancy of one and obedience by the other. We explained this in Santos, Sr. v. Court of Appeals: [7]

The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas in Roman
Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent
required by the latters needs. It is a mass of rights and obligations which the law grants to parents for the purpose of the childrens
physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As
regards parental authority, there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for
the welfare of the minor.

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The
right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another,
such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation
of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

Statute sets certain rules to assist the court in making an informed decision. Insofar as illegitimate children are concerned, Article
176 of the Family Code provides that illegitimate children shall be under the parental authority of their mother. Likewise, Article 213 of the
Family Code provides that [n]o child under seven years of age shall be separated from the mother, unless the court finds compelling
reasons to order otherwise. It will be observed that in both provisions, a strong bias is created in favor of the mother. This is specially
evident in Article 213 where it may be said that the law presumes that the mother is the best custodian. As explained by the Code
Commission:

The general rule is recommended in order to avoid many 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 divorce decree (relative divorce) will ordinarily be sufficient
punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her
situation.[8]

This is not intended, however, to denigrate the important role fathers play in the upbringing of their children. Indeed, we have recognized
that both parents complement each other in giving nurture and providing that holistic care which takes into account the physical, emotional,
psychological, mental, social and spiritual needs of the child. [9] Neither does the law nor jurisprudence intend to downplay a fathers sense
of loss when he is separated from his child:

While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer
agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much
the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration.[10]

For these reasons, even a mother may be deprived of the custody of her child who is below seven years of age for compelling
reasons. Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable illness. [11] If older than seven years of age, a child is allowed to
state his preference, but the court is not bound by that choice. The court may exercise its discretion by disregarding the childs preference
should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person. [12]
In the case at bar, we are being asked to rule on the temporary custody of the minor, Gardin Faith, since it appears that the
proceedings for guardianship before the trial court have not been terminated, and no pronouncement has been made as to who should
have final custody of the minor. Bearing in mind that the welfare of the said minor as the controlling factor, we find that the appellate court
did not err in allowing her father (private respondent herein) to retain in the meantime parental custody over her. Meanwhile, the child
should not be wrenched from her familiar surroundings, and thrust into a strange environment away from the people and places to which
she had apparently formed an attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special proceedings
before the trial court.[13] It should be recalled that in a petition for review on certiorari, we rule only on questions of law. We are not in the
best position to assess the parties respective merits vis--vis their opposing claims for custody. Yet another sound reason is that inasmuch
as the age of the minor, Gardin Faith, has now exceeded the statutory bar of seven years, a fortiori, her preference and opinion must first
be sought in the choice of which parent should have the custody over her person.
 A word of caution: our pronouncement here should not be interpreted to imply a preference toward the father (herein private
respondent) relative to the final custody of the minor, Gardin Faith. Nor should it be taken to mean as a statement against petitioners
fitness to have final custody of her said minor daughter. It shall be only understood that, for the present and until finally adjudged,
temporary custody of the subject minor should remain with her father, the private respondent herein pending final judgment of the trial
court in Sp. Proc. No. Q-92-11053.
WHEREFORE, the instant petition is hereby DENIED. The trial court is directed to immediately proceed with hearing Sp. Proc. No.
Q-92-11053 upon notice of this decision. No pronouncement as to costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-64982 October 23, 1984

ALEJANDRO B. HONTIVEROS, JR., petitioner,

vs.
THE INTERMEDIATE APPELLATE COURT, Third Special Cases Division, HON. WILFREDO G. CAINGLET in his capacity as
Presiding Judge of Branch CLVIII, RTC and BRENDA M. HERNANDO, respondents.

MAKASIAR, J.:ñé+.£ªwph!1

This petition for certiorari seeks to review the decision of the respondent Intermediate Appellate Court (hereinafter referred to as the
respondent Court) dated August 5, 1983, which affirmed the order of respodent Judge Cainglet (hereinafter referred to as the
respondent Judge) dated May 30, 1983. The dispositive portion of the respondent court's decision reads as follows: têñ.£îhqwâ£

WHEREFORE, the writ prayed for is denied and the petition dismissed for lack of merit. Accordingly, the restraining
order issued by this Court earlier is hereby lifted, without pronouncement as to costs (p. 97, rec.).

The facts are as follows:

Petitioner Alejandro Hontiveros, Jr. and private respondent Brenda M. Hernando are the father and mother of an acknowledged natural
child born on November 27, 1981 and given the name Margaux H. Hontiveros.

For the period from November 1981 to June 1982, the child had been under the care and custody of the mother. The father, petitioner
herein, used to take the child out during Saturdays and return the child to private respondent's residence on Saturday evenings (p. 29,
rec.).

On June 21, 1982, Alejandro Hontiveros, Jr. passed by the house of Brenda Hernando to take the child to their house for a visit, with
the agreement that she will be returned by nightfall (p. 29, rec.). However, the child was never returned to the mother.

To recover the custody of her child, private respondent filed on August 24, 1982 a petition for habeas corpus in the then Court of First
Instance of Rizal, Metro Manila, entitled "In the Matter of the Custody of the Minor Child Margaux H. Hontiveros, Brenda M. Hernando,
Petitioner, versus Alejandro Hontiveros, Jr. and Alejandro Hontiveros, Sr., respondents", which petition was docketed as Special
Proceedings No. 9784 of said court and assigned to Branch XIX thereof (p. 8, rec.).

On August 26, 1982, the petitioner filed a petition for custody of minor Margaux H. Hontiveros with the then Court of First Instance of
Rizal, docketed as Special Proceedings No. 9788 with Branch XXIII of the said court. Private respondent filed a motion to dismiss the
petition in Special Proceedings No. 9788 on the ground of litis pendency, citing the pendency of Special Proceedings No. 9784. The
motion to dismiss was denied. Subsequently, however, petitioner Alejandro Hontiveros, Jr. abandoned the prosecution of Special
Proceedings No. 9788, for which reason the Hon. Judge Rizalina Bonifacio Vera dismissed said petition on October 26, 1983.

On September 9, 1982, a hearing was conducted by the Hon. Judge Santiago Rañada in connection with Special Proceedings No.
9784. The parties agreed that the minor child Margaux shall be under the custody of the petitioner for seven (7) days every other week
(p. 171, rec.). Accordingly, Judge Rafiada issued the following order: têñ.£îhqwâ£

As preliminarily agreed upon by petitioner and respondent Alejandro Hontiveros, Jr., the Court hereby orders the
minor child Margaux H. Hontiveros to be put under the custody of the petitioner, with the understanding that
respondent Alejandro Hontiveros, Jr. will be allowed to take said minor child into his custody every other week for a
period of seven (7) days with the obligation of taking said minor child from the residence of petitioner every other
Friday, at 9:00 A.M., and return said child on or before the next Friday morning at 9:00 A.M. This arrangement is
effective immediately, with the condition that the custody of said child is now immediately given to petitioner and
respondent Alejandro Hontiveros, Jr. will be allowed to pick up said child on Friday, 17 September 1982, at about
9:00 A. M. (P. 37, rec.).

On May 24, 1983, the petitioner filed an urgent ex parte petition for issuance of a writ of preliminary injunction with the Regional Trial
Court of the National Capital Judicial Regions Branch CLVIII, to which the Court the aforesaid case was reassigned following the
reorganization of the inferior courts under BP 129 (p. 38, rec.). The object of the petition for preliminary injunction is to prevent the
private respondent from bringing the minor child outside the country, specifically the United States of American where she was
allegedly bound for.

The petition was set for hearing on May 30, 1983. On said date, the counsel for private respondent moved for the withdrawal of the
petition for habeas corpus on the ground that said petition has become moot and academic upon the production of the body of Margaux
Hontiveros before Judge Rafiada and in view of the order of September 9, 1982. Respondent Judge Wilfredo Cainglet (presiding Judge
of the Regional Trial Court of the National Capital Judicial Region, Branch CLVIII) granted the motion for the withdrawal of the petition
for habeas corpus. Since the petition for the issuance of a writ of preliminary injunction is but an ancillary action, the same was denied
by the respondent Judge in his order dated May 30, 1983. Said order states: têñ.£îhqwâ£

xxx xxx xxx

As preliminarily agreed upon by petitioner and respondent Alejandro Hontiveros, Jr., the Court hereby orders the
minor child Margaux H. Hontiveros to be put under the custody of the petitioner, with the understanding that
respondents Alejandro Hontiveros, Jr. will be allowed to take said minor child into his custody every other week for a
period of seven (7) days with the obligation of taking said minor child from the residence of petitioner every other
Friday, at 9:00 A.M., and return said child on or before the next Friday morning at 9:00 A.M. This arrangement is
effective immediately, with the condition that the custody of said child is now immediately given to petitioner and
respondent Alejandro Hontiveros, Jr. will be allowed to pick up said child on Friday, 17 September 1982, at about
9:00 A.M.

SO ORDERED.1äwphï1.ñët

When this petition was called for hearing today, petitioner's counsel, Atty. Wilfredo Chato moved for the withdrawal
this petition on the ground that the same has now become moot and academic in view of the Order of this Court
aforecited, to which motion for withdrawal residents' counsel, Atty. Yolanda Q. Javellana interposed her objection.
The said counsel for the respondents in open Court today, admitted that the respondents have not filed a
counterclaim anent the herein petition and further admitted that there is a present case involving the same parties
and same subject matter filed with the Pasig Court of First Instance (now Regional Trial Court) and pending before
Branch 162, presided by the Executive Judge, the Hon. Rizalina Bonifacio Vera since August 26, 1982.

The Court believes that the matter of withdrawing a case is a prerogative of plaintiff or petitioner and ordinarily could
not be validly objected to by the defendant or respondent as in the present case.

IN VIEW OF THE FOREGOING, the Court, finding the petitioner's motion to withdraw the herein petition to be
justified grants the same and hereby orders the WITHDRAWAL of the present petition for Habeas Corpus, subject to
the mandate of this Court in its Order dated September 9, 1982, predicated upon the agreement of the herein
petitioner and respondents.

Anent the respondents' motion/petition for the issuance of a Writ of preliminary injunction praying for the immediate
issuance of a restraining Order against the herein petitioner, the same being merely ancillar action and now moot and
academic there being no principal or main action or petition upon which respondents' motion/petition may be
predicated upon for the issuance of the said restraining Order, upon motion by petitioner's counsel with objection of
respondents' counsel the same is hereby DENIED for lack of factual and legal justification.

xxx xxx xxx

(pp. 48-49, rec.,emphasis supplied).

Petitioner moved for reconsideration which was likewise denied for lack of factual and legal justification (p. 50, rec.)

On June 3, 1983, the petitioner filed a petition for certiorari with application for preliminary injunction with the Intermediate Appellate
Court questioning the order of respondent Judge dated May 30, 1983 and the denial of the motion for reconsideration.

The respondent Court dismissed the petition for lack of merit in its decision dated August 5, 1983. The petitioner moved for
reconsideration of the adverse ruling but the same was affirmed by respondent Court in its resolution dated August 17, 1983.

Hence, this petition.

The following issues are presented:

1. Whether or not the order of respondent Judge dated May 30,1983 was issued with grave abuse of discretion, and
2. Whether or not petitioner is entitled to the custody of his minor child Margaux H. Hontiveros.

The records reveal that the original action instituted by private respondent in the then Court of First Instance was a petition for a writ
of habeas corpus to recover custody of her acknowledged natural child Margaux without depriving the father of his visitorial rights. The
petition was filed against the father who allegedly took the child from her mother's home and kept her indefinitely without the mother's
consent.

At the hearing conducted on September 9, 1982, the minor child was "produced before the Court and a settlement was reached upon
agreement of the parties. Thus, the order of Judge Rañada was issued. Even if the order was termed "preliminary ", WE take note of
the fact that the private respondent's prayer in her pleading had been satisfied for her evident purpose in filing the petition for habeas
corpus was to get back the custody of her child.

Because of such settlement and considering that as noted in the questioned order of May 30, 1983, the petitioner's counsel admitted
that there was a pending case (Special Proceedings No. 9788) involving the same parties and same subject matter filed with another
branch of the same court and the petitioner herein did not file a counterclaim, the respondent Judge allowed the withdrawal of the case
for habeas corpus pending before him (pp. 48-49, rec.).

Section 2, Rule 17 of the Revised Rules of Court provides for the dismissal of an action by order of the court at plaintiff's instance
(private respondent herein) upon such terms and conditions as the court deems proper. WE agree with the respondent Court that
considering the circumstances obtaining in the case at bar, as earlier noted, and considering further that no real injury would result if the
urgent ex parte petition could not be acted upon since it could be threshed out in the coordinate branch of the Pasig Regional Trial
Court, the dismissed of the petition forhabeas corpus is warranted. In the case of Duque vs. Vinarao (63 SCRA 206), WE held that a
petition for habeas corpus can be dismissed upon voluntary withdrawal of the petitioner and certification of the Judge Advocate
General.

WE agree with the respondent Judge that the petition for habeas corpus has been rendered moot and academic with the issuance of
the order dated September 9, 1982, which was predicated upon the agreement of the parties. In Pestrano vs. Corvista (81 Phil. 53), WE
held that where the subject person had already been released from the custody complained of, the petition for habeas corpus then still
pending was considered already moot and academic and should be dismissed. In the case at bar, the minor child Margaux H.
Hontiveros was in fact produced in court. By virtue of the order of Judge Ranada, she was released to the custody of her mother with
the father having the right to take her in his custody every other week.

WE believe that the respondent Judge merely exercised his sound discretion in allowing the withdrawal of the case in his branch.
"Grave abuse of discretion" means such capricious and arbitrary exercise of judgment as is equivalent, in the eyes of the law, to lack of
jurisdiction (Vda. de Bacaling vs. Laguda 54 SCRA 243). In the case at bar, there was no abuse of discretion by the respondent Judge.
He acted within the ambit of judicial discretion allotted to Judges of inferior courts, to wit: têñ.£îhqwâ£

The court may, subject to the requirement of due process, give all such directions and orders as it may deem
necessary or expedient in the determination of the dispute before it. It may refrain from hearing the dispute or part
thereof, or dismiss any matter or part of any matter, where further proceedings are not necessary or desirable.
Certainly, it may also defer the hearing of any motion or hear one motion in preference to others, when its judgment
such is necessary ... The discretion granted by law is not interfered with unless it is gravely abused (Maritime
Company of the Philippines, et al. vs. Paredes, et al., 19 SCRA 569, 580).

Petitioner is of the theory that he was deprived of due process because the respondent Judge dismissed his urgent ex parte petition for
preliminary injunction without hearing.

WE cannot sustain the stand of the petitioner.

It should be borne in mind that petitioner Med a petition for custody of minor Margaux H. Hontiveros with the then Court of First
Instance of Rizal docketed as Special Proceedings No. 9788. The respondent Judge knew of the existence of Special Proceedings No.
9788 because this fact was admitted by the counsel of the petitioner himself. All that the petitioner must do then is to file the petition for
preliminary injunction in Branch XXIII of the then Court of First Instance of Rizal where Special Proceedings No. 9788 is assigned. The
issue as to whether he can be granted a preliminary injunction could have properly been ventilated below. Unfortunately, petitioner
chose to appeal by way of certiorari, a remedy which WE cannot grant because the respondent Judge acted within the parameters of
judicial discretion.

What is more, petitioner himself did not pursue his action for custody of the minor Margaux H. Hontiveros. Worse, he abandoned the
case and Special Proceedings No. 9788 was dismissed by Judge Vera on October 26, 1983 for lack of interest on the part of the
petitioner to prosecute (p. 208, rec.). If at all petitioner can only blame himself if he feels that he was deprived of due process.

II
The second issue is whether or not petitioner is entitled to the custody of the minor child Margaux H. Hontiveros. Once more, WE are
asked to arbitrate between the rights and duties of parents and children.

Article 363 of the Civil Code provides: têñ.£îhqwâ£

In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount. No
matter shall be separated from her child under seven years of age, unless the court finds compelling reasons for such
measure.

The Code Commission observed that the rule in Article 363 of the Civil Code is necessary "in order to avoid many a tragedy when a
mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender
age (Report of the Code Commission, p. 12).

Finding the above rationale beyond question, Presidential Decree No. 603 (Child and Youth Welfare Code) provides the following:

Article 17 — ...

In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds
compelling reasons to do so (P.D. 603, dated December 10, 1974, 70 O.G. 10774).

While the petitioner would have US believe in his reply that the private respondent is unfit to take care of his child, it is too late in the
day to do so because under Rule 45 of the Rules of Court, only questions of law may be raised in this Tribunal What the petitioner
should have done is to bring out the questions of fact in Special Proceedings Nos. 9788. It is just too bad that the case for custody was
dismissed for lack of interest on the part of the petitioner.

Clearly, the private respondent has a clear legal right under Article 17 of P.D. 603 to the custody of her minor child, there being no
compelling reason to the contrary.

WHEREFORE, THE PETITION IS HEREBY DENIED. WITH COSTS AGAINST PETITIONER.

SO ORDERED.1äwphï1.ñët
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,

vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children horn out of the
same union. Upon this Court now falls the not too welcome task of deciding the issue of who, between the father and mother, is more
suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where Reynaldo was
employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital. In 1977, Teresita left for Los
Angeles, California to work as a nurse. She was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent by his
employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita then began to
maintain a common law relationship of husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On
October 7, 1987, while they were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the
United States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988.

The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed Reynaldo for the break-
up, stating he was always nagging her about money matters. Reynaldo, on the other hand, contended that Teresita was a spendthrift,
buying expensive jewelry and antique furniture instead of attending to household expenses.

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the children and went
back to California. She claims, however, that she spent a lot of money on long distance telephone calls to keep in constant touch with
her children.

Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet completed, he was sent
back by his company to Pittsburgh. He had to leave his children with his sister, co-petitioner Guillerma Layug and her family.

Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy against her and she
was afraid of being arrested. The judgment of conviction in the bigamy case was actually rendered only on September 29, 1994. (Per
Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita, meanwhile, decided to return to the Philippines and
on December 8, 1992 and filed the petition for a writ of habeas corpus against herein two petitioners to gain custody over the children,
thus starting the whole proceedings now reaching this Court.

On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority over Rosalind and
Reginald and declared Reynaldo to have sole parental authority over them but with rights of visitation to be agreed upon by the parties
and to be approved by the Court.

On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring, reversed the trial
court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals disregarded the factual
findings of the trial court; that the Court of Appeals further engaged in speculations and conjectures, resulting in its erroneous
conclusion that custody of the children should be given to respondent Teresita.

We believe that respondent court resolved the question of custody over the children through an automatic and blind application of the
age proviso of Article 363 of the Civil Code which reads:

Art. 363. In all questions on the care, custody, education and property of the children, the latter's welfare shall be
paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling
reasons for such measure.
 and of Article 213 of the Family Code which in turn provides:

Art. 213. In case of separation of the parents parental authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven
years of age unless the parent chosen is unfit.

The decision under review is based on the report of the Code Commission which drafted Article 213 that a child below seven years still
needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in equal measure. The
commentaries of a member of the Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family
Code, were also taken into account. Justice Diy believes that a child below seven years should still be awarded to her mother even if
the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)

The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts and the law
which should apply to those facts. The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be
determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount
criterion must always be the child's interests. Discretion is given to the court to decide who can best assure the welfare of the child, and
award the custody on the basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all
controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare
of the child concerned, taking into account the respective resources and social and moral situations of the contending parents", and
in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother, then the
country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner:

. . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic
principle that "in all questions on the care, custody, education and property of children, the latter's welfare shall be
paramount" (Civil Code of the Philippines. Art. 363), and that for compelling reasons, even a child under seven may
be ordered separated from the mother (do). This is as it should be, for in the continual evolution of legal institutions,
the patria potestas has been transformed from thejus vitae ac necis (right of life and death) of the Roman law, under
which the offspring was virtually a chattel of his parents into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no
power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the
welfare of the minor."

As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of
parental duties to provide the children with adequate support, education, moral, intellectual and civic training and
development (Civil Code, Art. 356).

(pp. 504-505.)

In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant
considerations. If a child is under seven years of age, the law presumes that the mother is the best custodian. The presumption is
strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is over seven, his choice is paramount but, again,
the court is not bound by that choice. In its discretion, the court may find the chosen parent unfit and award custody to the other parent,
or even to a third party as it deems fit under the circumstances.

In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh birthday on August
16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in reputable schools and appear to be fairly
intelligent children, quite capable of thoughtfully determining the parent with whom they would want to live. Once the choice has been
made, the burden returns to the court to investigate if the parent thus chosen is unfit to assume parental authority and custodial
responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children and rather than
verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions and general propositions applicable
to ordinary or common situations. The seven-year age limit was mechanically treated as an arbitrary cut off period and not a guide
based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and
agony" of a mother separated from her children and the humiliation she suffered as a result of her character being made a key issue in
court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her
small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One
cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount consideration.

We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to the choice of
Rosalind and considered in detail all the relevant factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to determine the effects of
uprooting her from the Assumption College where she was studying. Four different tests were administered. The results of the tests are
quite revealing. The responses of Rosalind about her mother were very negative causing the psychologist to delve deeper into the
child's anxiety. Among the things revealed by Rosalind was an incident where she saw her mother hugging and kissing a "bad" man
who lived in their house and worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be
emotionally emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the United
States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising from strong conflict
with the mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations of the child psychologist show
that Rosalind chooses petitioners over the private respondent and that her welfare will be best served by staying with them (pp. 199-
205, Rollo).

At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance required before
minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the United
States and be reunited with her mother. She felt unloved and uncared for. Rosalind was more attached to her Yaya who did everything
for her and Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The application for travel
clearance was recommended for denial (pp. 206-209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the petition for a writ
of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed. Considerations involving the choice
made by a child must be ascertained at the time that either parent is given custody over the child. The matter of custody is not
permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests,
the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the custodian. At the present
time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying, grabbing, and
embracing her to prevent the father from taking them away from her. We are more inclined to believe the father's contention that the
children ignored Teresita in court because such an emotional display as described by Teresita in her pleadings could not have been
missed by the trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally observed the
children and their mother in the courtroom. What the Judge found is diametrically opposed to the contentions of respondent Teresita.
The Judge had this to say on the matter.

And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding, especially as her
conduct and demeanor in the courtroom (during most of the proceedings) or elsewhere (but in the presence of the
undersigned presiding judge) demonstrated her ebulent temper that tended to corroborate the alleged violence of her
physical punishment of the children (even if only for ordinary disciplinary purposes) and emotional instability, typified
by her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC
Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in turn, states that the
trial court should have considered the fact that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two expert
witnesses. Actually, this was taken into account by the trial court which stated that the allegations of bias and unfairness made by
Teresita against the psychologist and social worker were not substantiated.

The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the interviews were
unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also note that the examinations made by
the experts were conducted in late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December, 1992.
Thus, the examinations were at that time not intended to support petitioners' position in litigation, because there was then not even an
impending possibility of one. That they were subsequently utilized in the case a quo when it did materialize does not change the tenor
in which they were first obtained.

Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway the court in favor
of any of the parties, but to assist the court in the determination of the issue before it. The persons who effected such examinations
were presented in the capacity of expert witnesses testifying on matters within their respective knowledge and expertise. On this matter,
this Court had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]).

The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the request, not of a
public officer or agency of the Government, but of a private litigant, does not necessarily nullify the examination thus
made. Its purpose, presumably, to assist the court having jurisdiction over said litigation, in the performance of its
duty to settle correctly the issues relative to said documents. Even a non-expert private individual may examine the
same, if there are facts within his knowledge which may help, the court in the determination of said issue. Such
examination, which may properly be undertaken by a non-expert private individual, does not, certainly become null
and void when the examiner is an expert and/or an officer of the NBI.

(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]):

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose
upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert
testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the
witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his
opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative
opportunities for study and observation of the matters about which he testifies, and any other matters which reserve
to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness
and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in
the absence of an abuse of that discretion.

(p. 359)

It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to observe their respective
demeanor that the trial court opted to rely on their testimony, and we believe that the trial court was correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to board a plane
when they were off-loaded because there was no required clearance. They were referred to her office, at which time Reginald was also
brought along and interviewed. One of the regular duties of Social Worker Lopez in her job appears to be the interview of minors who
leave for abroad with their parents or other persons. The interview was for purposes of foreign travel by a 5-year old child and had
nothing to do with any pending litigation. On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred
for her mother was based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise
her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely testifying just to
support the position of any litigant.

The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder also in Psychology
with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may
have shouldered the cost of the interview but Ms. Macabulos services were secured because Assumption College wanted an
examination of the child for school purposes and not because of any litigation. She may have been paid to examine the child and to
render a finding based on her examination, but she was not paid to fabricate such findings in favor of the party who retained her
services. In this instance it was not even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed
that a professional of her potential and stature would compromise her professional standing.

Teresita questions the findings of the trial court that:

1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting marriage with
another man.

2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow NSC employees.

3. She is incapable of providing the children with necessities and conveniences commensurate to their social
standing because she does not even own any home in the Philippines.

4. She is emotionally unstable with ebullient temper.

It is contended that the above findings do not constitute the compelling reasons under the law which would justify depriving her of
custody over the children; worse, she claims, these findings are non-existent and have not been proved by clear and convincing
evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated from the mother,
without considering what the law itself denominates as compelling reasons or relevant considerations to otherwise decree. In the Unson
III case, earlier mentioned, this Court stated that it found no difficulty in not awarding custody to the mother, it being in the best interest
of the child "to be freed from the obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and social outlook of
[the child] who was in her formative and most impressionable stage . . ."

Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the difference between right
and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an environment characterized by
emotional stability and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is an "unfit"
person under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of attention and care
which the mother is not in a position to extend.
The argument that the charges against the mother are false is not supported by the records. The findings of the trial court are based on
evidence.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13, Respondent's
Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven across the continental United States
to commence living with another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute
this disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo, Teresita tried to picture
Reynaldo as a rapist, alleging further that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by
Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given
credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against
privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the potential victim is averse to
the act. The implication created is that the act would be acceptable if not for the prior marriage.

More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is unlikely against a
woman who had driven three days and three nights from California, who went straight to the house of Reynaldo in Pittsburgh and upon
arriving went to bed and, who immediately thereafter started to live with him in a relationship which is marital in nature if not in fact.

Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo, Teresita entered into
an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo and respondent Teresita. Perdencio had
been assigned by the National Steel Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee,
in the latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by the traumatic effect of
seeing her mother hugging and kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home
and the children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was
seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that letters and written
messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).

The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling reasons" is neither
meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is the father, but the illicit or
immoral activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral
values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records appears to have
become final (pp. 210-222, Rollo).

Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother because his job is
in the United States while the children will be left behind with their aunt in the Philippines is misplaced. The assignment of Reynaldo in
Pittsburgh is or was a temporary one. He was sent there to oversee the purchase of a steel mill component and various equipment
needed by the National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to keep him there
anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his
permanent return to the Philippines (ff.
p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their choice of the
parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a fit person, thus meeting the two
requirements found in the first paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said article
no longer applies as the children are over seven years. Assuming that the presumption should have persuasive value for children only
one or two years beyond the age of seven years mentioned in the statute, there are compelling reasons and relevant considerations not
to grant custody to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their
emotional growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside, and the decision of
Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City and presided over by the
Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody of the minors Rosalind and Reginald Espiritu to their
father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to costs.

SO ORDERED.
 THIRD DIVISION

G.R. No. 132223 June 19, 2001

BONIFACIA P. VANCIL, petitioner,

vs.
HELEN G. BELMES, respondent.

SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No. 45650, "In the Matter of Guardianship of
Minors Valerie Vancil and Vincent Vancil – Bonifacia P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant,"
promulgated on July 29, 1997, and its Resolution dated December 18, 1997 denying the motion for reconsideration of the said
Decision.

The facts of the case as summarized by the Court of Appeals in its Decision are:

"Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died
in the said country on December 22, 1986. During his lifetime, Reeder had two (2) children named Valerie and Vincent by his
common-law wife, Helen G. Belmes.

"Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of Cebu City a guardianship
proceedings over the persons and properties of minors Valerie and Vincent docketed as Special Proceedings No. 1618-CEB.
At the time, Valerie was only 6 years old while Vincent was a 2-year old child. It is claimed in the petition that the minors are
residents of Cebu City, Philippines and have an estate consisting of proceeds from their father’s death pension benefits with a
probable value of P100,000.00.

"Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutive-weekly publications with the
Sunstar Daily.

"On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian over the persons and estate of
Valerie Vancil and Vincent Vancil Jr.

"On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition to the subject guardianship
proceedings asseverating that she had already filed a similar petition for guardianship under Special Proceedings No. 2819
before the Regional Trial Court of Pagadian City.

"Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for the Removal of Guardian and
Appointment of a New One, asserting that she is the natural mother in actual custody of and exercising parental authority over
the subject minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently residing; that the petition was filed
under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a resident of 140 Hurliman Court,
Canon City, Colorado, U.S.A. being a naturalized American citizen.

"On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes’ motion to remove and/or to disqualify
Bonifacia as guardian of Valerie and Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and perform
her duties as such guardian upon the posting of a bond of P50,000.00. The subsequent attempt for a reconsideration was
likewise dismissed in an Order dated November 24, 1988."1

On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of October 12, 1988 and dismissing Special
Proceedings No. 1618-CEB.

The Court of Appeals held:

"Stress should likewise be made that our Civil Code considers parents, the father, or in the absence, the mother, as natural
guardian of her minor children. The law on parental authority under the Civil Code or P.D. 603 and now the New Family Code,
(Article 225 of the Family Code) ascribe to the same legal pronouncements. Section 7 of Rule 93 of the Revised Rules of
Court confirms the designation of the parents as ipso facto guardian of their minor children without need of a court
appointment and only for good reason may another person be named. Ironically, for the petitioner, there is nothing on record
of any reason at all why Helen Belmes, the biological mother, should be deprived of her legal rights as natural guardian of her
minor children. To give away such privilege from Helen would be an abdication and grave violation of the very basic
fundamental tenets in civil law and the constitution on family solidarity." 2
On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the following "legal points":

"1. The Court of Appeals gravely erred in ruling that the preferential right of a parent to be appointed guardian over the
persons and estate of the minors is absolute, contrary to existing jurisprudence.

"2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes, the biological mother, should be appointed
the guardian of the minors despite the undisputed proof that under her custody, her daughter minor Valerie Vancil was raped
seven times by Oppositor’s live-in partner.

"3. The respondent (sic) Court of Appeals gravely erred when it disqualified petitioner Bonifacia P. Vancil to be appointed as
judicial guardian over the persons and estate of subject minors despite the fact that she has all the qualifications and none of
the disqualifications as judicial guardian, merely on the basis of her U.S. citizenship which is clearly not a statutory
requirement to become guardian."

At the outset, let it be stressed that in her "Manifestation/Motion," dated September 15, 1998, respondent Helen Belmes stated that her
daughter Valerie turned eighteen on September 2, 1998 as shown by her Birth Certificate. 3Respondent thus prayed that this case be
dismissed with respect to Valerie, she being no longer a proper subject of guardianship proceedings. The said "Manifestation/Motion"
was noted by this Court in its Resolution dated November 11, 1998.

Considering that Valerie is already of major age, this petition has become moot with respect to her. Thus, only the first and third "legal
points" raised by petitioner should be resolved.

The basic issue for our resolution is who between the mother and grandmother of minor Vincent should be his guardian.

We agree with the ruling of the Court of Appeals that respondent, being the natural mother of the minor, has the preferential right over
that of petitioner to be his guardian. This ruling finds support in Article 211 of the Family Code which provides:

"Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case
of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. xxx."

Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural and legal right to his custody. In Sagala-
Eslao vs. Court of Appeals,4 this Court held:

"Of considerable importance is the rule long accepted by the courts that ‘the right of parents to the custody of their minor
children is one of the natural rights incident to parenthood,’ a right supported by law and sound public policy. The right is an
inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental
relationship."

Petitioner contends that she is more qualified as guardian of Vincent.

Petitioner’s claim to be the guardian of said minor can only be realized by way of substitute parental authoritypursuant to Article 214 of
the Family Code, thus:

"Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the
surviving grandparent. xxx."

In Santos, Sr. vs. Court of Appeals,5 this Court ruled:

"The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence
or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents’ death,
absence or unsuitability may substitute parental authority be exercised by the surviving grandparent."

Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of
respondent. Considering that respondent is very much alive and has exercised continuously parental authority over Vincent, petitioner
has to prove, in asserting her right to be the minor’s guardian, respondent’s unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to be the guardian of Vincent. Petitioner merely insists that respondent is
morally unfit as guardian of Valerie considering that her (respondent’s) live-in partner raped Valerie several times. But Valerie, being
now of major age, is no longer a subject of this guardianship proceeding.

Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot qualify as a substitute guardian. It bears
stressing that she is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and
obligations required of a guardian. In fact, in her petition, she admitted the difficulty of discharging the duties of a guardian by an
expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian.
Moreover, we observe that respondent’s allegation that petitioner has not set foot in the Philippines since 1987 has not been
controverted by her. Besides, petitioner’s old age and her conviction of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal
Case No. CBU-168846 filed by one Danilo R. Deen, will give her a second thought of staying here. Indeed, her coming back to this
country just to fulfill the duties of a guardian to Vincent for only two years is not certain.

Significantly, this Court has held that courts should not appoint persons as guardians who are not within the jurisdiction of our courts for
they will find it difficult to protect the wards. In Guerrero vs. Teran,7 this Court held:

"Doña Maria Muñoz y Gomez was, as above indicated, removed upon the theory that her appointment was void because she
did not reside in the Philippine Islands. There is nothing in the law which requires the courts to appoint residents only as
administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the
courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much
difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their
jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of
persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here."

WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the sense that Valerie, who has attained the age of
majority, will no longer be under the guardianship of respondent Helen Belmes.

Costs against petitioner.

SO ORDERED.
 SECOND DIVISION
[G.R. No. 116773. January 16, 1997]
TERESITA SAGALA-ESLAO, petitioner, vs. COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.

DECISION
TORRES, JR., J.:

Children begin by loving their parents. After a time they judge them. Rarely, if ever, do they forgive them.[1] Indeed, parenthood is a
riddle of no mean proportions except for its mission.Thus, a mothers concern for her childs custody is undying - such is a mothers love.
The right of the mother to the custody of her daughter is the issue in the case at bar.
In this petition for review, Teresita Sagala-Eslao seeks the reversal of the Court of Appeals decision[2] dated March 25, 1994, which
affirmed the trial courts judgment granting the petition of Maria Paz Cordero-Ouye to recover the custody of her minor daughter from her
mother-in-law, Teresita Sagala-Eslao.
As found by the Court of Appeals, the facts of the case are as follows:

From the evidence, it appears that on June 22, 1984, petitioner Maria Paz Cordero-Ouye and Reynaldo Eslao were married;[3] after
their marriage, the couple stayed with respondent Teresita Eslao, mother of the husband, at 1825, Road 14, Fabie Estate, Paco,
Manila; that out of their marriage, two children were begotten, namely, Leslie Eslao who was born on February 23, 1986 and Angelica
Eslao who was born on April 20, 1987;[4] in the meantime, Leslie was entrusted to the care and custody of petitioners mother in Sta.
Ana, Pampanga, while Angelica stayed with her parents at respondents house; on August 6, 1990, petitioners husband Reynaldo Eslao
died;[5] petitioner intended to bring Angelica with her to Pampanga but the respondent prevailed upon her to entrust the custody of
Angelica to her, respondent reasoning out that her son just died and to assuage her grief therefor, she needed the company of the child
to at least compensate for the loss of her late son. In the meantime, the petitioner returned to her mothers house in Pampanga where
she stayed with Leslie.

Subsequently, petitioner was introduced by her auntie to Dr. James Manabu-Ouye, a Japanese-American, who is an orthodontist
practicing in the United States; their acquaintance blossomed into a meaningful relationship where on March 18, 1992, the petitioner
and Dr. James Ouye decided to get married; less than ten months thereafter, or on January 15, 1993, the petitioner migrated to San
Francisco, California, USA, to join her new husband. At present, the petitioner is a trainee at the Union Bank in San Francisco, while
her husband is a progressive practitioner of his profession who owns three cars, a dental clinic and earns US$5,000 a month. On June
24, 1993, the petitioner returned to the Philippines to be reunited with her children and bring them to the United States; the petitioner
then informed the respondent about her desire to take custody of Angelica and explained that her present husband, Dr. James Ouye,
expressed his willingness to adopt Leslie and Angelica and to provide for their support and education; however, respondent resisted the
idea by way of explaining that the child was entrusted to her when she was ten days old and accused the petitioner of having
abandoned Angelica. Because of the adamant attitude of the respondent, the petitioner then sought the assistance of a lawyer, Atty.
Mariano de Joya, Jr., who wrote a letter to the respondent demanding for the return of the custody of Angelica to her natural
mother[6] and when the demand remain[ed] unheeded, the petitioner instituted the present action.[7]Missda

After the trial on the merits, the lower court rendered its decision, the dispositive portion of which reads:

WHEREFORE, finding the petition to be meritorious, the Court grants the same and let the corresponding writ issue. As a corollary,
respondent Teresita Sagala-Eslao or anyone acting under her behalf is hereby directed to cause the immediate transfer of the custody
of the minor Angelica Cordero Eslao, to her natural mother, petitioner Maria Paz Cordero-Ouye.

No pronouncement as to costs.

SO ORDERED.

On appeal, the respondent court affirmed in full the decision of the trial court.
Hence, the instant petition by the minors paternal grandmother, contending that the Court of Appeals erred:
I

IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID NOT ABANDON MINOR, ANGELICA ESLAO, TO
THE CARE AND CUSTODY OF THE PETITIONER TERESITA SAGALA-ESLAO.Missdaa

II
IN RULING THAT THERE WAS NO COMPELLING REASON TO SEPARATE MINOR, ANGELICA ESLAO, FROM PRIVATE
RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR OF PETITIONER TERESITA SAGALA-ESLAO.

III

IN NOT FINDING THAT PETITIONER TERESITA SAGALA-ESLAO, IS FIT TO BE GIVEN THE CUSTODY OF MINOR, ANGELICA
ESLAO.Sdaadsc

The petition is without merit.

Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take care of Angelica; that she had managed to raise 12 children of her own herself;
that she has the financial means to carry out her plans for Angelica; that she maintains a store which earns a net income of about P500
a day, she gets P900 a month as pension for the death of her husband, she rents out rooms in her house which she owns, for which she
earns a total of P6,000 a month, and that from her gross income of roughly P21,000, she spends about P10,000 for the maintenance of
her house.Sdaadsc
Despite the foregoing, however, and petitioners genuine desire to remain with said child, that would qualify her to have custody of
Angelica, the trial courts disquisition, in consonance with the provision that the childs welfare is always the paramount consideration in
all questions concerning his care and custody[8] convinced this Court to decide in favor of private respondent, thus:

On the other hand, the side of the petitioner must also be presented here. In this case, we see a picture of a real and natural mother
who is -

x x x legitimately, anxiously, and desperately trying to get back her child in order to fill the void in her heart and existence. She wants to
make up for what she has failed to do for her boy during the period when she was financially unable to help him and when she could
not have him in her house because of the objection of the father. Now that she has her own home and is in a better financial condition,
she wants her child back, and we repeat that she has not and has never given him up definitely or with any idea of permanence.[9]

The petitioner herein is married to an Orthodontist who has a lucrative practice of his profession in San Francisco, California, USA. The
petitioner and her present husband have a home of their own and they have three cars. The petitioners husband is willing to adopt the
petitioners children. If the children will be with their mother, the probability is that they will be afforded a bright future. Contrast this
situation with the one prevailing in the respondents [grandmothers] house. As admitted by the respondent, four of the rooms in her
house are being rented to other persons with each room occupied by 4 to 5 persons.Added to these persons are the respondents 2
sons, Samuel and Alfredo, and their respective families (ibid., p. 54) and one can just visualize the kind of atmosphere pervading
thereat. And to aggravate the situation, the house has only 2 toilets and 3 faucets. Finally, considering that in all controversies involving
the custody of minors, the foremost criterion is the physical and moral well being of the child taking into account the respective
resources and social and moral situations of the contending parties (Union III vs. Mariano, 101 SCRA 183), the Court is left with no
other recourse but to grant the writ prayed for.[10]

Petitioner further contends that the respondent court erred in finding that there was no abandonment committed by the private
respondent; that while judicial declaration of abandonment of the child in a case filed for the purpose is not here obtaining as mandated
in Art. 229 of the Family Code because petitioner failed to resort to such judicial action, it does not ipso facto follow that there was in fact
no abandonment committed by the private respondent.
Petitioner also argues that it has been amply demonstrated during the trial that private respondent had indeed abandoned Angelica
to the care and custody of the petitioner; that during all the time that Angelica stayed with petitioner, there were only three instances or
occasions wherein the private respondent saw Angelica; that private respondent never visited Angelica on important occasions, such as
her birthday, and neither did the former give her cards or gifts, not even a single candy; [11] that while private respondent claims otherwise
and that she visited Angelica "many times" an insists that she visited Angelica as often as four times a month and gave her remembrances
such as candies and clothes, she would not even remember when the fourth birthday of Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,[12] we stated, viz:

xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical
preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. [13] As regards
parental authority, there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the
welfare of the minor.[14]

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law.[15] The
right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a childrens home or an orphan institution.[16] When a parent entrusts the custody of a minor to another,
such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation
of parental authority.[17] Even if a definite renunciation is manifest, the law still disallows the same.[18]
The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their
custody and company.[19]

Thus, in the instant petition, when private respondent entrusted the custody of her minor child to the petitioner, what she gave to
the latter was merely temporary custody and it did not constitute abandonment or renunciation of parental authority. For the right attached
to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and
surrender to a childrens home or an orphan institution which do not appear in the case at bar.
Of considerable importance is the rule long accepted by the courts that the right of parents to the custody of their minor children is
one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is
not created by the state or decisions of the courts, but derives from the nature of the parental relationship. [20]
IN VIEW WHEREOF, the decision appealed from dated March 25, 1994 being in accordance with law and the evidence, the same
is hereby AFFIRMED and the petition DISMISSED for lack of merit.
SO ORDERED.