1 MDK
ART. 186
Republic of the
SUPREME
Manila
FIRST DIVISION
G.R. Nos. 168992-93 May 21, 2009
IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,
MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x
IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,
MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina
P. Lim (petitioner) seeking to set aside the
Decision1 dated 15 September 2004 of the Regional
Trial Court, General Santos City, Branch 22 (trial court),
in SPL. PROC. Case Nos. 1258 and 1259, which dismissed
without prejudice the consolidated petitions for
adoption of Michelle P. Lim and Michael Jude P. Lim.
The Facts
The following facts are undisputed. Petitioner is an
optometrist by profession. On 23 June 1974, she married
Primo Lim (Lim). They were childless. Minor children,
whose parents were unknown, were entrusted to them
by a certain Lucia Ayuban (Ayuban). Being so eager to
have a child of their own, petitioner and Lim registered
the children to make it appear that they were the
children’s parents. The children2 were named Michelle
P. Lim (Michelle) and Michael Jude P. Lim (Michael).
Michelle was barely eleven days old when brought to
the clinic of petitioner. She was born on 15 March
1977.3 Michael was 11 days old when Ayuban brought
him to petitioner’s clinic. His date of birth is 1 August
1983.4
The spouses reared and cared for the children as if they
were their own. They sent the children to exclusive
schools. They used the surname "Lim" in all their school
records and documents. Unfortunately, on 28
November 1998, Lim died. On 27 December 2000,
petitioner married Angel Olario (Olario), an American
citizen.
Thereafter, petitioner decided to adopt the children by
availing of the amnesty5 given under Republic Act No.
Philippines 85526 (RA 8552) to those individuals who simulated the
COURT birth of a child. Thus, on 24 April 2002, petitioner filed
separate petitions for the adoption of Michelle and
Michael before the trial court docketed as SPL PROC.
Case Nos. 1258 and 1259, respectively. At the time of
the filing of the petitions for adoption, Michelle was 25
years old and already married, while Michael was 18
years and seven months old.
Michelle and her husband gave their consent to the
adoption as evidenced by their Affidavits of
Consent.7 Michael also gave his consent to his
adoption as shown in his Affidavit of
Consent.8 Petitioner’s husband Olario likewise executed
an Affidavit of Consent9 for the adoption of Michelle
and Michael.
In the Certification issued by the Department of Social
Welfare and Development (DSWD), Michelle was
considered as an abandoned child and the
whereabouts of her natural parents were
unknown.10 The DSWD issued a similar Certification for
Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered
judgment dismissing the petitions. The trial court ruled
that since petitioner had remarried, petitioner should
have filed the petition jointly with her new husband. The
trial court ruled that joint adoption by the husband and
the wife is mandatory citing Section 7(c), Article III of RA
8552 and Article 185 of the Family Code.
Petitioner filed a Motion for Reconsideration of the
decision but the motion was denied in the Order dated
16 June 2005. In denying the motion, the trial court
ruled that petitioner did not fall under any of the
exceptions under Section 7(c), Article III of RA 8552.
Petitioner’s argument that mere consent of her
husband would suffice was untenable because, under
the law, there are additional requirements, such as
residency and certification of his qualification, which
the husband, who was not even made a party in this
case, must comply.
As to the argument that the adoptees are already
emancipated and joint adoption is merely for the joint
exercise of parental authority, the trial court ruled that
joint adoption is not only for the purpose of exercising
parental authority because an emancipated child
acquires certain rights from his parents and assumes
certain obligations and responsibilities.
Hence, the present petition.
 2 MDK
Issue
Petitioner appealed directly to this Court raising the
sole issue of whether or not petitioner, who has
remarried, can singly adopt.
The Court’s Ruling
Petitioner contends that the rule on joint adoption must
be relaxed because it is the duty of the court and the
State to protect the paramount interest and welfare of
the child to be adopted. Petitioner argues that the
legal maxim "dura lex sed lex" is not applicable to
adoption cases. She argues that joint parental authority
is not necessary in this case since, at the time the
petitions were filed, Michelle was 25 years old and
already married, while Michael was already 18 years of
age. Parental authority is not anymore necessary since
they have been emancipated having attained the
age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for
adoption were filed, petitioner had already remarried.
She filed the petitions by herself, without being joined
by her husband Olario. We have no other recourse but
to affirm the trial court’s decision denying the petitions
for adoption. Dura lex sed lex. The law is explicit.
Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full
civil capacity and legal rights, of good moral
character, has not been convicted of any crime
involving moral turpitude, emotionally and
psychologically capable of caring for children, at least
sixteen (16) years older than the adoptee, and who is in
a position to support and care for his/her children in
keeping with the means of the family. The requirement
of sixteen (16) year difference between the age of the
adopter and adoptee may be waived when the
adopter is the biological parent of the adoptee, or is
the spouse of the adoptee’s parent;
(b) Any alien possessing the same qualifications as
above stated for Filipino nationals: Provided, That
his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been living
in the Philippines for at least three (3) continuous years
prior to the filing of the application for adoption and
maintains such residence until the adoption decree is
entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal
capacity to adopt in his/her country, and that his/her
government allows the adoptee to enter his/her
country as his/her adopted son/daughter: Provided,
further, That the requirements on residency and
certification of the alien’s qualification to adopt in
his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative
within the fourth (4th) degree of consanguinity or
affinity; or
(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative within the
fourth (4th) degree of consanguinity or affinity of the
Filipino spouses; or
(c) The guardian with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the
following cases:
(i) if one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other
spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each
other.
In case husband and wife jointly adopt, or one spouse
adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses.
(Emphasis supplied)
The use of the word "shall" in the above-quoted
provision means that joint adoption by the husband
and the wife is mandatory. This is in consonance with
the concept of joint parental authority over the child
which is the ideal situation. As the child to be adopted
is elevated to the level of a legitimate child, it is but
natural to require the spouses to adopt jointly. The rule
also insures harmony between the spouses.12
The law is clear. There is no room for ambiguity.
Petitioner, having remarried at the time the petitions for
adoption were filed, must jointly adopt. Since the
petitions for adoption were filed only by petitioner
herself, without joining her husband, Olario, the trial
court was correct in denying the petitions for adoption
on this ground.
 3 MDK
Neither does petitioner fall under any of the three
exceptions enumerated in Section 7. First, the children
to be adopted are not the legitimate children of
petitioner or of her husband Olario. Second, the
children are not the illegitimate children of petitioner.
And third, petitioner and Olario are not legally
separated from each other.
The fact that Olario gave his consent to the adoption
as shown in his Affidavit of Consent does not suffice.
There are certain requirements that Olario must comply
being an American citizen. He must meet the
qualifications set forth in Section 7 of RA 8552 such as:
(1) he must prove that his country has diplomatic
relations with the Republic of the Philippines; (2) he
must have been living in the Philippines for at least
three continuous years prior to the filing of the
application for adoption; (3) he must maintain such
residency until the adoption decree is entered; (4) he
has legal capacity to adopt in his own country; and (5)
the adoptee is allowed to enter the adopter’s country
as the latter’s adopted child. None of these
qualifications were shown and proved during the trial.
These requirements on residency and certification of
the alien’s qualification to adopt cannot likewise be
waived pursuant to Section 7. The children or adoptees
are not relatives within the fourth degree of
consanguinity or affinity of petitioner or of Olario.
Neither are the adoptees the legitimate children of
petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not
anymore necessary since the children have been
emancipated having reached the age of majority. This
is untenable.
Parental authority includes caring for and rearing the
children for civic consciousness and efficiency and the
development of their moral, mental and physical
character and well-being.13 The father and the mother
shall jointly exercise parental authority over the persons
of their common children.14 Even the remarriage of the
surviving parent shall not affect the parental authority
over the children, unless the court appoints another
person to be the guardian of the person or property of
the children.15
It is true that when the child reaches the age of
emancipation — that is, when he attains the age of
majority or 18 years of age16 — emancipation
terminates parental authority over the person and
property of the child, who shall then be qualified and
responsible for all acts of civil life.17 However, parental
authority is merely just one of the effects of legal
adoption. Article V of RA 8552 enumerates the effects
of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the
biological parent is the spouse of the adopter, all legal
ties between the biological parent(s) and the adoptee
shall be severed and the same shall then be vested on
the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered
the legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the
rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of
any kind. To this end, the adoptee is entitled to love,
guidance, and support in keeping with the means of
the family.
SEC. 18. Succession. - In legal and intestate succession,
the adopter(s) and the adoptee shall have reciprocal
rights of succession without distinction from legitimate
filiation. However, if the adoptee and his/her biological
parent(s) had left a will, the law on testamentary
succession shall govern.
Adoption has, thus, the following effects: (1) sever all
legal ties between the biological parent(s) and the
adoptee, except when the biological parent is the
spouse of the adopter; (2) deem the adoptee as a
legitimate child of the adopter; and (3) give adopter
and adoptee reciprocal rights and obligations arising
from the relationship of parent and child, including but
not limited to: (i) the right of the adopter to choose the
name the child is to be known; and (ii) the right of the
adopter and adoptee to be legal and compulsory heirs
of each other.18 Therefore, even if emancipation
terminates parental authority, the adoptee is still
considered a legitimate child of the adopter with all
the rights19 of a legitimate child such as: (1) to bear the
surname of the father and the mother; (2) to receive
support from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely, the
adoptive parents shall, with respect to the adopted
child, enjoy all the benefits to which biological parents
are entitled20 such as support21 and successional
rights.22
We are mindful of the fact that adoption statutes,
being humane and salutary, hold the interests and
welfare of the child to be of paramount consideration.
They are designed to provide homes, parental care
and education for unfortunate, needy or orphaned
children and give them the protection of society and
family, as well as to allow childless couples or persons to
experience the joys of parenthood and give them
 4 MDK

legally a child in the person of the adopted for the In Re Petition for Adoption of Michelle Lim and Michael
manifestation of their natural parental instincts. Every Jude Lim
reasonable intendment should be sustained to
promote and fulfill these noble and compassionate GR No. 168992-93, May 21, 2009
objectives of the law.23 But, as we have ruled
in Republic v. Vergara:24

We are not unmindful of the main purpose of adoption FACTS:

statutes, which is the promotion of the welfare of the
children. Accordingly, the law should be construed
liberally, in a manner that will sustain rather than defeat
Monina Lim, petitioner, who was an optometrist was
said purpose. The law must also be applied with
married with Primo Lim but were childless. Minor
compassion, understanding and less severity in view of
children, were entrusted to them by Lucia, whose
the fact that it is intended to provide homes, love, care
parents were unknown as shown by a certification of
and education for less fortunate children. Regrettably,
DSWD. The spouses registered the children making it
the Court is not in a position to affirm the trial court’s
appears as if they were the parents. Unfortunately, in
decision favoring adoption in the case at bar, for the
1998, Primo died. She then married an American
law is clear and it cannot be modified without violating
Citizen, Angel Olario in December 2000. Petitioner
the proscription against judicial legislation. Until such
decided to adopt the children by availing of the
time however, that the law on the matter is amended,
amnesty given under RA 8552 to individuals who
we cannot sustain the respondent-spouses’ petition for
simulated the birth of a child. In 2002, she filed
adoption. (Emphasis supplied)1avvphi1.zw+
separate petitions for adoption of Michelle and
Petitioner, being married at the time the petitions for Michael before the trial court. Michelle was then 25
adoption were filed, should have jointly filed the years old and already married and Michael was 18
petitions with her husband. We cannot make our own years and seven months old. Michelle and her
legislation to suit petitioner. husband including Michael and Olario gave their
consent to the adoption executed in an affidavit.
Petitioner, in her Memorandum, insists that subsequent
events would show that joint adoption could no longer
be possible because Olario has filed a case for
ISSUE: WON petitioner who has remarried can singly
dissolution of his marriage to petitioner in the Los
adopt.
Angeles Superior Court.

We disagree. The filing of a case for dissolution of the

marriage between petitioner and Olario is of no
moment. It is not equivalent to a decree of dissolution
of marriage. Until and unless there is a judicial decree
for the dissolution of the marriage between petitioner
and Olario, the marriage still subsists. That being the
case, joint adoption by the husband and the wife is
required. We reiterate our ruling above that since, at
the time the petitions for adoption were filed, petitioner
was married to Olario, joint adoption is mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the
Decision dated 15 September 2004 of the Regional Trial
Court, General Santos City, Branch 22 in SPL. PROC.
Case Nos. 1258 and 1259. Costs against petitioner.
SO ORDERED.
DIGESTED:
In Re Petition for Adoption of Michelle Lim and Michael
Lim
HELD:
Petition was denied. The time the petitions were filed,
petitioner had already remarried. Husband and wife
shall jointly adopt except in 3 instances which was not
present in the case at bar. In case spouses jointly
adopts, they shall jointly exercised parental
authority. The use of the word “shall” signifies that joint
adoption of husband and wife is mandatory. This is in
consonance with the concept of joint parental
authority since the child to be adopted is elevated to
the level of a legitimate child, it is but natural to require
spouses to adopt jointly. The affidavit of consent given
by Olario will not suffice since there are certain
requirements that he must comply as an American
Citizen. He must meet the qualifications set forth in
Sec7 of RA8552. The requirements on residency and
certification of the alien’s qualification to adopt cannot
likewise be waived pursuant to Sec 7. Parental
authority is merely just one of the effects of legal
 5 MDK
adoption. It includes caring and rearing the children
for civic consciousness and efficiency and
development of their moral mental and physical
character and well-being.
ART. 188
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 105308 September 25, 1998
HERBERT CANG, petitioner,
vs.
COURT OF APPEALS and Spouses RONALD V. CLAVANO
and MARIA CLARA CLAVANO, respondents.
ROMERO, J.:
Can minor children be legally adopted without the
written consent of a natural parent on the ground that
the latter has abandoned them? The answer to this
interesting query, certainly not one of first impression,
would have to be reached, not solely on the basis of
law and jurisprudence, but also the hard reality
presented by the facts of the case.
This is the question posed before this Court in this
petition for review on certiorari of the Decision1 of the
Court of Appeals affirming the decree of adoption
issued by the Regional Trial Court of Cebu City, Branch
14,2 in Special Proceedings No. 1744-CEB, "In the Matter
of the Petition for Adoption of the minors Keith,
Charmaine and Joseph Anthony, all surnamed Cang,
Spouses Ronald V. Clavano and Maria Clara Diago
Clavano, petitioners."
Petitioner Herbert Cang and Anna Marie Clavano who
were married on January 27, 1973, begot three
children, namely: Keith, born on July 3, 1973;
Charmaine, born on January 23, 1977, and Joseph
Anthony, born on January 3, 1981.
During the early years of their marriage, the Cang
couple's relationship was undisturbed. Not long
thereafter, however, Anna Marie learned of her
husband's alleged extramarital affair with Wilma Soco,
a family friend of the Clavanos.
Upon learning of her husband's alleged illicit liaison,
Anna Marie filed a petition for legal separation with
alimony pendente lite 3 with the then Juvenile and
Domestic Relations Court of Cebu 4 which rendered a
decision5 approving the joint manifestation of the Cang
spouses providing that they agreed to "live separately
and apart or from bed and board." They further
agreed:
(c) That the children of the parties shall be entitled to a
monthly support of ONE THOUSAND PESOS (P1,000.00)
effective from the date of the filing of the complaint.
This shall constitute a first lien on the net proceeds of
the house and lot jointly owned by the parties situated
at Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any
contract or agreement with any person or persons,
natural or juridical without the written consent of the
husband; or any undertaking or acts that ordinarily
requires husband's consent as the parties are by this
agreement legally separated; 6
Petitioner then left for the United States where he
sought a divorce from Anna Marie before the Second
Judicial District Court of the State of Nevada. Said
court issued the divorce decree that also granted sole
custody of the three minor children to Anna Marie,
reserving "rights of visitation at all reasonable times and
places" to petitioner. 7
Thereafter, petitioner took an American wife and thus
became a naturalized American citizen. In 1986, he
divorced his American wife and never remarried.
While in the United States, petitioner worked in Tablante
Medical Clinic earning P18,000.00 to P20,000.00 a
month8 a portion of which was remitted to the
Philippines for his children's expenses and another,
deposited in the bank in the name of his children.
Meanwhile, on September 25, 1987, private
respondents Ronald V. Clavano and Maria Clara Diago
Clavano, respectively the brother and sister-in-law of
Anna Marie, filed Special Proceedings No. 1744-CEB for
the adoption of the three minor Cang children before
the Regional Trial Court of Cebu. The petition bears the
signature of then 14-year-old Keith signifying consent to
his adoption. Anna Marie likewise filed an affidavit of
consent alleging that her husband had "evaded his
legal obligation to support" his children; that her
brothers and sisters including Ronald V. Clavano, had
been helping her in taking care of the children; that
because she would be going to the United States to
attend to a family business, "leaving the children would
be a problem and would naturally hamper (her) job-
seeking venture abroad;" and that her husband had
"long forfeited his parental rights" over the children for
the following reasons:
 6 MDK
1. The decision in Civil Case No. JD-707 allowed her to
enter into any contract without the written consent of
her husband;
2. Her husband had left the Philippines to be an illegal
alien in the United States and had been transferring
from one place to another to avoid detection by
Immigration authorities, and
3. Her husband had divorced her.
Upon learning of the petitioner for adoption, petitioner
immediately returned to the Philippines and filed an
opposition thereto, alleging that, although private
respondents Ronald and Maria Clara Clavano were
financially capable of supporting the children while his
finances were "too meager" compared to theirs, he
could not "in conscience, allow anybody to strip him of
his parental authority over his beloved children."
Pending resolution of the petition for adoption,
petitioner moved to reacquire custody over his children
alleging that Anna Marie had transferred to the United
States thereby leaving custody of their children to
private respondents. On January 11, 1988, the Regional
Trial Court of Cebu City, Branch 19, issued an order
finding that Anna Marie had, in effect, relinquished
custody over the children and, therefore, such custody
should be transferred to the father. The court then
directed the Clavanos to deliver custody over the
minors to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu
City, Branch 14, issued a decree of adoption with a
dispositive portion reading as follows:
WHEREFORE, premises considered, the petition for
adoption of the minors Keith, Charmaine and Joseph
Anthony all surnamed Cang, by the petitioner-spouses
Ronald V. Clavano and Maria Clara Diago Clavano is
hereby granted and approved. These children shall
henceforth be known and called as Keith D. Clavano,
Charmaine D. Clavano and Joseph Anthony D.
Clavano respectively. Moreover, this Decree of
Adoption shall:
(1) Confer upon the adopted children the same rights
and duties as though they were in fact the legitimate
children of the petitioners;
(2) Dissolve the authority vested in the parents by
nature, of the children; and,
(3) Vest the same authority in the petitioners.
Furnish the Local Civil Registrar of Cebu City, Philippines
with a copy of this Decree of Adoption for registration
purposes.
SO ORDERED.
In so ruling, the lower court was "impelled" by these
reasons:
(1) The Cang children had, since birth, developed
"close filial ties with the Clavano family, especially their
maternal uncle," petitioner Ronald Clavano.
(2) Ronald and Maria Clara Clavano were childless
and, with their printing press, real estate business,
export business and gasoline station and mini-mart in
Rosemead, California, U.S.A., had substantial assets
and income.
(3) The natural mother of the children, Anna Marie,
nicknamed "Menchu," approved of the adoption
because of her heart ailment, near-fatal accident in
1981, and the fact that she could not provide them a
secure and happy future as she "travels a lot."
(4) The Clavanos could provide the children moral and
spiritual direction as they would go to church together
and had sent the children to Catholic schools.
(5) The children themselves manifested their desire to
be adopted by the Clavanos — Keith had testified and
expressed the wish to be adopted by the Clavanos
while the two younger ones were observed by the
court to have "snuggled" close to Ronald even though
their natural mother was around.
On the other hand, the lower court considered the
opposition of petitioner to rest on "a very shaky
foundation" because of its findings that:
(1) Petitioner was "morally unfit to be the father of his
children" on account of his being "an improvident
father of his family" and an "undisguised Lothario." This
conclusion is based on the testimony of his alleged
paramour, mother of his two sons and close friend of
Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house
of the Cangs in Opao, Mandaue City.
(2) The alleged deposits of around $10,000 that were of
"comparatively recent dates" were "attempts at
verisimilitude" as these were joint deposits the
authenticity of which could not be verified.
(3) Contrary to petitioner's claim, the possibility of his
reconciliation with Anna Marie was "dim if not nil"
because it was petitioner who "devised, engineered
and executed the divorce proceedings at the Nevada
Washoe County court."
(4) By his naturalization as a U.S. citizen, petitioner "is
now an alien from the standpoint of Philippine laws"
 7 MDK
and therefore, how his "new attachments and loyalties
would sit with his (Filipino) children is an open question."
Quoting with approval the evaluation and
recommendation of the RTC Social Worker in her Child
Study Report, the lower court concluded as follows:
Simply put, the oppositor Herbert Cang has
abandoned his children. And abandonment of a child
by its (sic) parent is commonly specified by statute as a
ground for dispensing with his consent to its (sic)
adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As.
1914A, 214]). Indeed, in such case, adoption will be
allowed not only without the consent of the parent, but
even against his opposition (Re McKeag, 141 Cal. 403,
74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Gal. 469,63
P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo.
346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153
N.W. 160, citing R.C.L.; Steams v. Allen, 183 Mass. 404, 67
N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483,
53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo,
173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) 9
Before the Court of Appeals, petitioner contended that
the lower court erred in holding that it would be in the
best interest of the three children if they were adopted
by private respondents Ronald and Maria Clara
Clavano. He asserted that the petition for adoption
was fatally defective and tailored to divest him of
parental authority because: (a) he did not have a
written consent to the adoption; (b) he never
abandoned his children; (c) Keith and Charmaine did
not properly give their written consent; and (d) the
petitioners for adoption did not present as witness the
representative of the Department of Social Welfare
and Development who made the case study report
required by law.
The Court of Appeals affirmed the decree of adoption
stating:
Art. 188 of the Family Code requires the written consent
of the natural parents of the child to be adopted. It has
been held however that the consent of the parent who
has abandoned the child is not necessary (Dayrit vs.
Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344).
The question therefore is whether or not oppositor may
be considered as having abandoned the children. In
adoption cases, abandonment connotes any conduct
on the part of the parent to forego parental duties and
relinquish parental claims to the child, or the neglect or
refusal to perform the natural and legal obligations
which parents owe their children (Santos vs.
Ananzanso, supra), or the withholding of the parent's
presence, his care and the opportunity to display
voluntary affection. The issue of abandonment is amply
covered by the discussion of the first error.
Oppositor argues that he has been sending dollar
remittances to the children and has in fact even
maintained bank accounts in their names. His duty to
provide support comes from two judicial
pronouncements. The first, the decision in JD-707
CEB, supra, obliges him to pay the children P1,000.00 a
month. The second is mandated by the divorce decree
of the Nevada, U.S.A. Federal Court which orders him
to pay monthly support of US$50.00 for each child.
Oppositor has not submitted any evidence to show
compliance with the decision in JD-101 CEB, but he has
submitted 22 cancelled dollar checks (Exhs. 24 to 45)
drawn in the children's names totalling $2,126.98. The
last remittance was on October 6, 1987 (Exh. 45). His
obligation to provide support commenced under the
divorce decree on May 5, 1982 so that as of October 6,
1987, oppositor should have made 53 remittances of
$150.00, or a total of $7,950.00. No other remittances
were shown to have been made after October 6, 1987,
so that as of this date, oppositor was woefully in arrears
under the terms of the divorce decree. And since he
was totally in default of the judgment in JD-707 CEB,
the inevitable conclusion is oppositor had not really
been performing his duties as a father, contrary to his
protestations.
True, it has been shown that oppositor had opened
three accounts in different banks, as follows —
Acct. No. Date Opened Balance Name of Bank
———— —————— ———— ——————
1) 118-606437-4 July 23, 1985 $5,018.50 Great Western
Savings,
Oct. 29, 1987 Daly City, Cal., U.S.A.
2) 73-166-8 March 5, 1986 3,129.00 Matewan National
Bank
Oct. 26, 1987 of Williamson, West
Virginia, U.S.A.
3) 564-146883 December 31, 1986 2,622.19 Security
Pacific National
Oct. 29, 1987 Bank, Daly City, Cal.,
U.S.A.
The first and third accounts were opened however in
oppositor's name as trustee for Charmaine Cang and
Joseph Anthony Cang, respectively. In other words, the
accounts are operated and the amounts
withdrawable by oppositor himself and it cannot be
said that they belong to the minors. The second is an
 8 MDK
"or" account, in the names of Herbert Cang or Keith
Cang. Since Keith is a minor and in the Philippines, said
account is operable only by oppositor and the funds
withdrawable by him alone.
The bank accounts do not really serve what oppositor
claimed in his offer of evidence "the aim and purpose
of providing for a better future and security of his
family."10
Petitioner moved to reconsider the decision of the
Court of Appeals. He emphasized that the decree of
legal separation was not based on the merits of the
case as it was based on a manifestation amounting to
a compromise agreement between him and Anna
Marie. That he and his wife agreed upon the plan for
him to leave for the United States was borne out by the
fact that prior to his departure to the United States, the
family lived with petitioner's parents. Moreover, he
alone did not instigate the divorce proceedings as he
and his wife initiated the "joint complaint" for divorce.
Petitioner argued that the finding that he was not fit to
rear and care for his children was belied by the award
to him of custody over the children in Civil Case No. JD-
707. He took exception to the appellate court's findings
that as an American citizen he could no longer lay
claim to custody over his children because his
citizenship would not take away the fact that he "is still
a father to his children." As regards his alleged illicit
relationship with another woman, he had always
denied the same both in Civil Case No. JD-707 and the
instant adoption case. Neither was it true that Wilma
Soco was a neighbor and family friend of the Clavanos
as she was residing in Mandaue City seven (7)
kilometers away from the Clavanos who were residents
of Cebu City. Petitioner insisted that the testimony of
Wilma Soco should not have been given weight for it
was only during the hearing of the petition for adoption
that Jose Clavano, a brother of Ronald, came to know
her and went to her residence in Iligan City to convince
her to be a witness for monetary considerations. Lastly,
petitioner averred that it would be hypocritical of the
Clavanos to claim that they could love the children
much more than he could. 11
His motion for reconsideration having been denied,
petitioner is now before this Court, alleging that the
petition for adoption was fatally defective as it did not
have his written consent as a natural father as required
by Article 31 (2) of Presidential Decree No. 603, the
Child and Youth Welfare Code, and Article 188 (2) of
the Family Code.
Art. 31 of P.D. No. 603 provides —
Art. 31. Whose Consent is Necessary. — The written
consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if fourteen years of age
or, over;
(2) The natural parents of the child or his legal guardian
of the Department of Social Welfare or any duly
licensed child placement agency under whose care
the child may be;
(3) The natural children, fourteen years and above, of
the adopting parents. (Emphasis supplied)
On December 17, 1986, then President Corazon C.
Aquino issued Executive Order No. 91 amending
Articles 27, 28, 29, 31, 33 and 35 of the Child and Youth
Welfare Code. As thus amended, Article 31 read:
Art. 31. Whose Consent is Necessary. — The written
consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if fourteen years of age
or over;
(2) The natural parents of the child or his legal guardian
after receiving counselling and appropriate social
services from the Ministry of Social Services and
Development or from a duly licensed child-placement
agency;
(3) The Ministry of Social Services and Development or
any duly licensed child-placement agency under
whose care and legal custody the child may be;
(4) The natural children, fourteen years and above, of
the adopting parents. (Emphasis supplied)
Jurisdiction being a matter of substantive law, the
established rule is that the statute in force at the time of
the commencement of the action determines the
jurisdiction of the court. 12 As such, when private
respondents filed the petition for adoption on
September 25, 1987, the applicable law was the Child
and Youth Welfare Code, as amended by Executive
Order No. 91.
During the pendency of the petition for adoption or on
August 3, 1988, the Family Code which amended the
Child and Youth Welfare Code took effect. Article 256
of the Family Code provides for its retroactivity "insofar
as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws."
As amended by the Family Code, the statutory
provision on consent for adoption now reads:
 9 MDK
Art. 188. The written consent of the following to the
adoption shall be necessary:
(1) The person to be adopted, if ten years of age or
over;
(2) The parents by nature of the child, the legal
guardian, or the proper government instrumentality;
(3) The legitimate and adopted children, ten years of
age or over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of
the adopting parents, if living with said parent and the
latter's spouse, if any; and
(5) The spouse, if any, of the person adopting or to be
adopted. (Emphasis supplied)
Based on the foregoing, it is thus evident that
notwithstanding the amendments to the law, the
written consent of the natural parent to the adoption
has remained a requisite for its validity. Notably, such
requirement is also embodied in Rule 99 of the Rules of
Court as follows:
Sec. 3. Consent to adoption. — There shall be filed with
the petition a written consent to the adoption
signed by the child, if fourteen years of age or over and
not incompetent, and by the child's spouse, if any,
and by each of its known living parents who is not
insane or hopelessly intemperate or has not
abandoned the child, or if the child is in the custody of
an orphan asylum, children's home, or benevolent
society or person, by the proper officer or officers of
such asylum, home, or society, or by such persons; but if
the child is illegitimate and has not been recognized,
the consent of its father to the adoption shall not be
required. (Emphasis supplied)
As clearly inferred from the foregoing provisions of law,
the written consent of the natural parent is
indispensable for the validity of the decree of
adoption. Nevertheless, the requirement of written
consent can be dispensed with if the parent has
abandoned the child 13 or that such parent is "insane or
hopelessly intemperate." The court may acquire
jurisdiction over the case even, without the written
consent of the parents or one of the parents provided
that the petition for adoption alleges facts sufficient to
warrant exemption from compliance therewith. This is in
consonance with the liberality with which this Court
treats the procedural aspect of adoption. Thus, the
Court declared:
. . . . The technical rules of pleading should not be
stringently applied to adoption proceedings, and it is
deemed more important that the petition should
contain facts relating to the child and its parents, which
may give information to those interested, than that it
should be formally correct as a pleading. Accordingly,
it is generally held that a petition will confer jurisdiction
if it substantially complies with the adoption statute,
alleging all facts necessary to give the court
jurisdiction. 14
In the instant case, only the affidavit of consent of the
natural mother was attached to the petition for
adoption. Petitioner's consent, as the natural father is
lacking. Nonetheless, the petition sufficiently alleged
the fact of abandonment of the minors for adoption by
the natural father as follows:
3. That the children's mother, sister of petitioner RONALD
V. CLAVANO, has given her express consent to this
adoption, as shown by Affidavit of Consent, Annex "A".
Likewise, the written consent of Keith Cang, now 14
years of age appears on page 2 of this petition;
However, the father of the children, Herbert Cang, had
already left his wife and children and had already
divorced the former, as evidenced by the xerox copy
of the DECREE OF DIVORCE issued by the County of
Washoe, State of Nevada, U.S.A. (Annex "B") which was
filed at the instance of Mr. Cang, not long after he
abandoned his family to live in the United States as an
illegal immigrant. 15
The allegations of abandonment in the petition for
adoption, even absent the written consent of
petitioner, sufficiently vested the lower court with
jurisdiction since abandonment of the child by his
natural parents is one of the circumstances under
which our statutes and jurisprudence 16 dispense with
the requirement of written consent to the adoption of
their minor children.
However, in cases where the father opposes the
adoption primarily because his consent thereto was not
sought, the matter of whether he had abandoned his
child becomes a proper issue for determination. The
issue of abandonment by the oppositor natural parent
is a preliminary issue that an adoption court must first
confront. Only upon, failure of the oppositor natural
father to prove to the satisfaction of the court that he
did not abandon his child may the petition for
adoption be considered on its merits.
As a rule, factual findings of the lower courts are final
and binding upon this Court. 17 This Court is not
expected nor required to examine or contrast the oral
and documentary evidence submitted by the
parties. 18 However, although this Court is not a trier of
facts, it has the authority to review and reverse the
factual findings of the lower courts if it that these do not
conform to the evidence on record. 19
 10 MDK
In Reyes v. Court of Appeals, 20 this Court has held that
the exceptions to the rule that factual findings of the
trial court are final and conclusive and may not be
reviewed on appeal are the following: (1) when the
inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of
discretion; (3) when the finding is grounded entirely on
speculations, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact
are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both
appellant and appellee; (7) when the findings of the
Court of Appeals are contrary to those of the trial court;
(8) when the findings of fact are conclusions without
citation of specific evidence on which they are based;
(9) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different
conclusion and (10) when the findings of fact of the
Court of Appeals are premised on the absence of
evidence and are contradicted by the evidence on
record.
This Court finds that both the lower court and the Court
of Appeals failed to appreciate facts and
circumstances that should have elicited a different
conclusion 21 on the issue of whether petitioner has so
abandoned his children, thereby making his consent to
the adoption unnecessary.
In its ordinary sense, the word "abandon'' means to
forsake entirely, to forsake or renounce utterly. The
dictionaries trace this word to the root idea of "putting
under a ban." The emphasis is on the finality and
publicity with which a thing or body is thus put in the
control of another, hence, the meaning of giving up
absolutely, with intent never to resume or claim one's
rights or interests. 22 In reference to abandonment of a
child by his parent, the act of abandonment imports
"any conduct of the parent which evinces a settled
purpose to forego all parental duties and relinquish all
parental claims to the child." It means "neglect or
refusal to perform the natural and legal obligations of
care and support which parents owe their children." 23
In the instant case, records disclose that petitioner's
conduct did not manifest a settled purpose to forego
all parental duties and relinquish all parental claims
over his children as to, constitute abandonment.
Physical estrangement alone, without financial and
moral desertion, is not tantamount to
abandonment. 24 While admittedly, petitioner was
physically absent as he was then in the United States,
he was not remiss in his natural and legal obligations of
love, care and support for his children. He maintained
regular communication with his wife and children
through letters and telephone. He used to send
packages by mail and catered to their whims.
Petitioner's testimony on the matter is supported by
documentary evidence consisting of the following
handwritten letters to him of both his wife and children:
1. Exh. 1 — a 4-page updated letter of Menchu (Anna
Marie) addressed to "Dear Bert" on a C. Westates
Carbon Phil. Corp. stationery. Menchu stated therein
that it had been "a long time since the last time you've
heard from me excluding that of the phone
conversation we've had." She discussed petitioner's
intention to buy a motorbike for Keith, expressing
apprehension over risks that could be engendered by
Keith's use of it. She said that in the "last phone
conversation" she had with petitioner on the birthday of
"Ma," she forgot to tell petitioner that Keith's voice had
changed; he had become a "bagito" or a teen-ager
with many "fans" who sent him Valentine's cards. She
told him how Charmaine had become quite a talkative
"almost dalaga" who could carry on a conversation
with her angkong and how pretty she was in white
dress when she won among the candidates in
the Flores de Mayo after she had prayed so hard for it.
She informed him, however, that she was worried
because Charmaine was vain and wont to
extravagance as she loved clothes. About Joeton
(Joseph Anthony), she told petitioner that the boy was
smart for his age and "quite spoiled" being the
youngest of the children in Lahug. Joeton was
mischievous but Keith was his idol with whom he would
sleep anytime. She admitted having said so much
about the children-because they might not have
informed petitioner of "some happenings and spices of
life" about themselves. She said that it was "just very
exciting to know how they've grown up and very
pleasant, too, that each of them have (sic) different
characters." She ended the letter with the hope that
petitioner was "at the best of health." After extending
her regards "to all," she signed her name after the word
"Love." This letter was mailed on July 9, 1986 from Cebu
to petitioner whose address was P.O. Box 2445,
Williamson, West Virginia 25661 (Exh. 1-D).
2. Exh. 2 — letter dated 11/13/84 on a green stationery
with golden print of "a note from Menchu" on the left
upper corner. Anna Marie stated that "we" wrote to
petitioner on Oct. 2, 1984 and that Keith and Joeton
were very excited when petitioner "called up last time."
She told him how Joeton would grab the phone from
Keith just so petitioner would know what he wanted to
order. Charmaine, who was asleep, was so
disappointed that she missed petitioner's call because
she also wanted something that petitioner should buy.
Menchu told petitioner that Charmaine wanted a
 11 MDK
pencil sharpener, light-colored T-shirts for her walking
shorts and a (k)nap sack. Anna Marie informed
petitioner that the kids were growing up and so were
their needs. She told petitioner to be "very fatherly"
about the children's needs because those were
expensive here. For herself, Anna Marie asked for a
subscription of Glamour and Vogue magazines and
that whatever expenses he would incur, she would
"replace" these. As a postscript, she told petitioner that
Keith wanted a size 6 khaki-colored "Sperry topsider
shoes."
3. Exh. 3 — an undated note on a yellow small piece of
paper that reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a
wonderful one.
By the way thanks for the shoes, it was a nice one. It's
nice to be thought of at X'mas. Thanks again.
Sincerely,
Menchu
4. Exh. 4 — a two-page undated letter of Keith on
stationery of Jose Clavano, Inc. addressed to "Dear
Dad." Keith told his father that they tried to tell their
mother "to stay for a little while, just a few weeks after
classes start(s)" on June 16. He informed petitioner that
Joeton would be in Kinder I and that, about the
motorbike, he had told his mother to write petitioner
about it and "we'll see what you're (sic) decision will
be." He asked for chocolates, nuts, basketball shirt and
shorts, rubber shoes, socks, headband, some clothes for
outing and perfume. He told petitioner that they had
been going to Labug with their mother picking them up
after Angkong or Ama had prepared lunch or dinner.
From her aerobics, his mother would go for them in
Lahug at about 9:30 or 10:00 o'clock in the evening. He
wished his father "luck and the best of health" and that
they prayed for him and their other relatives. The letter
was ended with "Love Keith."
5. Exh. 5 — another undated long letter of Keith. He
thanked his father for the Christmas card "with $40.00,
$30.00 and $30.00" and the "card of Joeton with $5.00
inside." He told petitioner the amounts following his
father's instructions and promise to send money
through the mail. He asked his father to address his
letter directly to him because he wanted to open his
own letters. He informed petitioner of activities during
the Christmas season — that they enjoyed eating,
playing and giving surprises to their mother. He
apprised him of his daily schedule and that their mother
had been closely supervising them, instructing them to
fold their blankets and pile up their pillows. He informed
petitioner that Joeton had become very smart while
Charmaine, who was also smart, was very demanding
of their mother. Because their mother was leaving for
the United States on February 5, they would be missing
her like they were missing petitioner. He asked for his
"things" and $200.00. He told petitioner more anecdotes
about Joeton like he would make the sign of the cross
even when they would pass by the Iglesia ni
Cristo church and his insistence that Aquino was not
dead because he had seen him on the betamax
machine. For Keith, Charmaine had become
"very maldita" who was not always satisfied with her
dolls and things but Joeton was full of surprises. He
ended the letter with "Love your son, Keith." The letter
was mailed on February 6, 1985 (Exh. 5-D).
6. Exh. 6 — an undated letter Charmaine. She thanked
petitioner for the bathing suit, key chain, pencil box,
socks, half shirt, pencil sharpener and $50.00. She
reminded him of her birthday on January 23 when she
would turn 9 years old. She informed him that she wore
size 10 and the size of her feet was IM. They had fun at
Christmas in Lahug but classes would start on January 9
although Keith's classes had started on January 6. They
would feel sad again because Mommy would be
leaving soon. She hoped petitioner would keep writing
them. She signed, "Love, Charmaine."
7. Exh . 7 — an undated letter of Keith. He explained to
petitioner that they had not been remiss in writing
letters to him. He informed him of their trip to Manila —
they went to Malacañang, Tito Doy Laurel's house, the
Ministry of Foreign Affairs, the executive house,
Tagaytay for three days and Baguio for one week. He
informed him that he got "honors," Charmaine was 7th
in her class and Joeton had excellent grades. Joeton
would be enrolled in Sacred Heart soon and he was
glad they would be together in that school. He asked
for his "reward" from petitioner and so with Charmaine
and Joeton. He asked for a motorbike and dollars that
he could save. He told petitioner that he was saving
the money he had been sending them. He said he
missed petitioner and wished him the best. He added
that petitioner should call them on Sundays.
8. Exh. 8 — a letter from Joeton and Charmaine but
apparently written by the latter. She asked for money
from petitioner to buy something for the school and
"something else." She, promised not to spend so much
and to save some. She said she loved petitioner and
missed him. Joeton said "hi!" to petitioner. After ending
the letter with "Love, Joeton and Charmaine," she
asked for her prize for her grades as she got seventh
place.
9. Exh. 9 — undated letter of Keith. He assured
petitioner that he had been writing him; that he would
 12 MDK
like to have some money but he would save them; that
he learned that petitioner had called them up but he
was not around; that he would be going to Manila but
would be back home May 3; that his Mommy had just
arrived Thursday afternoon, and that he would be the
"official altar boy." He asked petitioner to write them
soon.
10. Exh. 10 — Keith thanked petitioner for the money he
sent. He told petitioner that he was saving some in the
bank and he was proud because he was the only one
in his group who saved in the bank. He told him that
Joeton had become naughty and would claim as his
own the shirts sent to Keith by petitioner. He advised
petitioner to send pants and shirts to Joeton, too, and
asked for a pair of topsider shoes and candies. He
informed petitioner that he was a member of the
basketball team and that his mom would drive for his
group. He asked him to call them often like the father
of Ana Christie and to write them when he would call
so that they could wait for it. He informed petitioner
that they had all grown bigger and heavier. He hoped
petitioner would be happy with the letter that had
taken him so long to write because he did not want to
commit any mistakes. He asked petitioner to buy him
perfume (Drakkar) and, after thanking petitioner,
added that the latter should buy something for
Mommy.
11. Exh. 11 — a Christmas card "For My Wonderful
Father" dated October 8, 1984 from Keith, Charmaine
and Joeton.
12. Exh. 12 — another Christmas card, "Our Wish For
You" with the year '83 written on the upper right hand
corner of the inside page, from Keith, Charmaine and
Joeton.
13. Exh. 13 — a letter of Keith telling petitioner that he
had written him even when their Mom "was there"
where she bought them clothes and shoes. Keith asked
petitioner for $300.00. Because his mother would not
agree to buy him a motorbike, he wanted a Karaoke
unit that would cost P12,000.00. He informed petitioner
that he would go to an afternoon disco with friends but
their grades were all good with Joeton receiving "stars"
for excellence. Keith wanted a bow and arrow Rambo
toys and G.I. Joe. He expressed his desire that petitioner
would come and visit them someday.
14. Exh. 14 — a letter of Keith with one of the four pages
bearing the date January 1986. Keith told his father that
they had received the package that the latter sent
them. The clothes he sent, however, fitted only Keith
but not Charmaine and Joeton who had both grown
bigger. Keith asked for grocery items, toys and more
clothes. He asked, in behalf of his mother, for low-
heeled shoes and a dress to match, jogging pants,
tights and leotards that would make her look sexy. He
intimated to petitioner that he had grown taller and
that he was already ashamed to be asking for things to
buy in the grocery even though his mother had told
him not to be shy about it.
Aside from these letters, petitioner also presented
certifications of banks in the U.S.A. showing that even
prior to the filing of the petition for adoption, he had
deposited amounts for the benefit of his
children. 25 Exhibits 24 to 45 are copies of checks sent
by petitioner to the children from 1985 to 1989.
These pieces of evidence are all on record. It is,
therefore, quite surprising why the courts below simply
glossed over these, ignoring not only evidence on
financial support but also the emotional exchange of
sentiments between petitioner and his family. Instead,
the courts below emphasized the meagerness of the
amounts he sent to his children and the fact that, as
regards the bank deposits, these were "withdrawable
by him alone." Simply put, the courts below attached a
high premium to the prospective adopters' financial
status but totally brushed aside the possible
repercussion of the adoption on the emotional and
psychological well-being of the children.
True, Keith had expressed his desire to be adopted by
his uncle and aunt. However, his seeming steadfastness
on the matter as shown by his testimony is contradicted
by his feelings towards his father as revealed in his
letters to him. It is not at all farfetched to conclude that
Keith's testimony was actually the effect of the filing of
the petition for adoption that would certainly have
engendered confusion in his young mind as to the
capability of his father to sustain the lifestyle he had
been used to.
The courts below emphasized respondents' emotional
attachment to the children. This is hardly surprising for,
from the very start of their young lives, the children
were used to their presence. Such attachment had
persisted and certainly, the young ones' act of
snuggling close to private respondent Ronald Clavano
was not indicative of their emotional detachment from
their father. Private respondents, being the uncle and
aunt of the children, could not but come to their
succor when they needed help as when Keith got sick
and private respondent Ronald spent for his hospital
bills.
In a number of cases, this Court has held that parental
authority cannot be entrusted to a person simply
because he could give the child a larger measure of
material comfort than his natural parent. Thus, in David
v. Court of Appeals, 26 the Court awarded custody of a
minor illegitimate child to his mother who was a mere
secretary and market vendor instead of to his affluent
 13 MDK
father who was a married man, not solely because the
child opted to go with his mother. The Court said:
Daisie and her children may not be enjoying a life of
affluence that private respondent promises if the child
lives with him. It is enough, however, that petitioner is
earning a decent living and is able to support her
children according to her means.
In Celis v. Cafuir 27 where the Court was confronted
with the issue of whether to award custody of a child to
the natural mother or to a foster mother, this Court said:
This court should avert the tragedy in the years to come
of having deprived mother and son of the beautiful
associations and tender, imperishable memories
engendered by the relationship of parent and child.
We should not take away from a mother the
opportunity of bringing up her own child even at the
cost of extreme sacrifice due to poverty and lack of
means; so that afterwards, she may be able to look
back with pride and a sense of satisfaction at her
sacrifices and her efforts, however humble, to make her
dreams of her little boy come true. We should not
forget that the relationship between a foster mother
and a child is not natural but artificial. If the child turns
out to be a failure or forgetful of what its foster parents
had done for him, said parents might yet count and
appraise (sic) all that they have done and spent for him
and with regret consider all of it as a dead loss, and
even rue the day they committed the blunder of taking
the child into their hearts and their home. Not so with a
real natural mother who never counts the cost and her
sacrifices, ever treasuring memories of her associations
with her child, however unpleasant and disappointing.
Flesh and blood count. . . . .
In Espiritu v. Court of Appeals, 28 the Court stated that
"(I)n ascertaining the welfare and best interests of the
child, courts are mandated by the Family Code to take
into account all relevant considerations." Thus, in
awarding custody of the child to the father, the Court
said:
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. (Emphasis supplied) 29
Indeed, it would be against the spirit of the law if
financial consideration were to be the paramount
consideration in deciding whether to deprive a person
of parental authority over his children. There should be
a holistic approach to the matter, taking into account
the physical, emotional, psychological, mental, social
and spiritual needs of the child. 30 The conclusion of the
courts below that petitioner abandoned his family
needs more evidentiary support other than his inability
to provide them the material comfort that his
admittedly affluent in-laws could provide. There should
be proof that he had so emotionally abandoned them
that his children would not miss his guidance and
counsel if they were given to adopting parents. The
letters he received from his children prove that
petitioner maintained the more important emotional tie
between him and his children. The children needed him
not only because he could cater to their whims but also
because he was a person they could share with their
daily activities, problems and triumphs.
The Court is thus dismayed that the courts below did
not look beyond petitioner's "meager" financial support
to ferret out other indications on whether petitioner had
in fact abandoned his family. The omission of said
courts has led us to examine why the children were
subjected to the process of adoption, notwithstanding
the proven ties that bound them to their father. To our
consternation, the record of the case bears out the
fact that the welfare of the children was not exactly
the "paramount consideration" that impelled Anna
Marie to consent to their adoption.
In her affidavit of consent, Anna Marie expressly said
that leaving the children in the country, as she was
wont to travel abroad often, was a problem that would
naturally hamper her job-seeking abroad. In other
words, the adoption appears to be a matter of
convenience for her because Anna Marie herself is
financially capable of supporting her children. 31 In his
testimony, private respondent Ronald swore that Anna
Marie had been out of the country for two years and
came home twice or three times, 32 thereby
manifesting the fact that it was she who actually left
her children to the care of her relatives. It was bad
enough that their father left their children when he
went abroad, but when their mother followed suit for
her own reasons, the situation worsened. The Clavano
family must have realized this. Hence, when the family
first discussed the adoption of the children, they
decided that the prospective adopter should be Anna
Marie's brother Jose. However, because he had
children of his own, the family decided to devolve the
task upon private respondents. 33
 14 MDK
This couple, however, could not always be in Cebu to
care for the children. A businessman, private
respondent Ronald Clavano commutes between Cebu
and Manila while his wife, private respondent Maria
Clara, is an international flight stewardess. 34 Moreover,
private respondent Ronald claimed that he could "take
care of the children while their parents are
away," 35 thereby indicating the evanescence of his
intention. He wanted to have the children's surname
changed to Clavano for the reason that he wanted to
take them to the United States as it would be difficult
for them to get a visa if their surname were different
from his. 36 To be sure, he also testified that he wanted
to spare the children the stigma of being products of a
broken home.
Nevertheless, a close analysis of the testimonies of
private respondent Ronald, his sister Anna Marie and
their brother Jose points to the inescapable conclusion
that they just wanted to keep the children away from
their father. One of the overriding considerations for the
adoption was allegedly the state of Anna Marie's
health — she was a victim of an almost fatal accident
and suffers from a heart ailment. However, she herself
admitted that her health condition was not that serious
as she could still take care of the children. 37 An
eloquent evidence of her ability to physically care for
them was her employment at the Philippine Consulate
in Los Angeles 38 — she could not have been employed
if her health were endangered. It is thus clear that the
Clavanos' attempt at depriving petitioner of parental
authority apparently stemmed from their notion that he
was an inveterate womanizer. Anna Marie in fact
expressed fear that her children would "never be at
ease with the wife of their father." 39
Petitioner, who described himself as single in status,
denied being a womanizer and father to the sons of
Wilma Soco. 40 As to whether he was telling the truth is
beside the point. Philippine society, being
comparatively conservative and traditional, aside from
being Catholic in orientation, it does not countenance
womanizing on the part of a family man, considering
the baneful effects such irresponsible act visits on his
family. Neither may the Court place a premium on the
inability of a man to distinguish between siring children
and parenting them. Nonetheless, the actuality that
petitioner carried on an affair with a paramour cannot
be taken as sufficient basis for the conclusion that
petitioner was necessarily an unfit
father. 41 Conventional wisdom and common human
experience show that a "bad" husband does not
necessarily make a "bad" father. That a husband is not
exactly an upright man is not, strictly speaking, a
sufficient ground to deprive him as a father of his
inherent right to parental authority over the
children. 42 Petitioner has demonstrated his love and
concern for his children when he took the trouble of
sending a telegram 43 to the lower court expressing his
intention to oppose the adoption immediately after
learning about it. He traveled back to this country to
attend to the case and to testify about his love for his
children and his desire to unite his family once more in
the United States. 44
Private respondents themselves explained why
petitioner failed to abide by the agreement with his
wife on the support of the children. Petitioner was an
illegal alien in the United States. As such, he could not
have procured gainful employment. Private
respondents failed to refute petitioner's testimony that
he did not receive his share from the sale of the
conjugal home, 45 pursuant to their
manifestation/compromise agreement in the legal
separation case. Hence, it can be reasonably
presumed that the proceeds of the sale redounded to
the benefit of his family, particularly his children. The
proceeds may not have lasted long but there is ample
evidence to show that thereafter, petitioner tried to
abide by his agreement with his wife and sent his family
money, no matter how "meager."
The liberality with which this Court treats matters
leading to adoption insofar as it carries out the
beneficent purposes of the law to ensure the rights and
privileges of the adopted child arising therefrom, ever
mindful that the paramount consideration is the overall
benefit and interest of the adopted child, should be
understood in its proper context and perspective. The
Court's position, should not be misconstrued or
misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence. 46 The
discretion to approve adoption proceedings is not to
be anchored solely on best interests of the child but
likewise, with due regard to the natural rights of the
parents over the child. 47
In this regard, this Court notes private respondents'
reliance on the manifestation/compromise agreement
between petitioner and Anna Marie which became
the basis of the decree of legal separation. According
to private respondents' counsel, 48 the authority given
to Anna Marie by that decree to enter into contracts as
a result of the legal separation was "all
embracing" 49 and, therefore, included giving her sole
consent to the adoption. This conclusion is however,
anchored on the wrong premise that the authority
given to the innocent spouse to enter into contracts
that obviously refer to their conjugal properties, shall
include entering into agreements leading to the
adoption of the children. Such conclusion is as devoid
of a legal basis as private respondents' apparent
reliance on the decree of legal separation for doing
away with petitioner's consent to the adoption.
 15 MDK
The transfer of custody over the children to Anna Marie
by virtue of the decree of legal separation did not, of
necessity; deprive petitioner of parental authority for
the purpose of placing the children up for adoption.
Article 213 of the Family Code states: ". . . in case of
legal separation of parents, parental authority shall be
exercised by the parent designated by the court." In
awarding custody, the court shall take into account "all
relevant considerations, especially the choice of the
child over seven years of age, unless the parent chosen
is unfit."
If should be noted, however, that the law only confers
on the innocent spouse the "exercise" of parental
authority. Having custody of the child, the innocent
spouse shall implement the sum of parental rights with
respect to his rearing and care. The innocent spouse
shall have the right to the child's services and earnings,
and the right to direct his activities and make decisions
regarding his care and control, education, health and
religion. 50
In a number of cases, this Court has considered
parental authority, the joint exercise of which is vested
by the law upon the parents, 51 as
. . . a mass of rights and obligations which the law
grants to parents for the purpose of the children's
physical preservation and development, as well as the
cultivation of their intellect and the education of their
hearts 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.
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled
to keep them in their custody and
company. 52 (Emphasis supplied)
As such, in instant case, petitioner may not be deemed
as having been completely deprived of parental
authority, notwithstanding the award of custody to
Anna Marie in the legal separation case. To reiterate,
that award was arrived at by the lower court on the
basis of the agreement of the spouses.
While parental authority may be waived, as in law it
may be subject to a compromise, 53 there was no
factual finding in the legal separation case that
petitioner was such an irresponsible person that he
should be deprived of custody of his children or that
there are grounds under the law that could deprive him
of parental authority. In fact, in the legal separation
case, the court thereafter ordered the transfer of
custody over the children from Anna Marie back to
petitioner. The order was not implemented because of
Anna Marie's motion for reconsideration thereon. The
Clavano family also vehemently objected to the
transfer of custody to the petitioner, such that the latter
was forced to file a contempt charge against them. 54
The law is clear that either parent may lose parental
authority over the child only for a valid reason. No such
reason was established in the legal separation case. In
the instant case for adoption, the issue is whether or not
petitioner had abandoned his children as to warrant
dispensation of his consent to their adoption.
Deprivation of parental authority is one of the effects of
a decree of adoption. 55 But there cannot be a valid
decree of adoption in this case precisely because, as
this Court has demonstrated earlier, the finding of the
courts below on the issue of petitioner's abandonment
of his family was based on a misappreciation that was
tantamount to non-appreciation, of facts on record.
As regards the divorce obtained in the United States,
this Court has ruled in Tenchavez v. Escaño 56 that a
divorce obtained by Filipino citizens after the effectivity
of the Civil Code is not recognized in this jurisdiction as
it is contrary to State policy. While petitioner is now an
American citizen, as regards Anna Marie who has
apparently remained a Filipino citizen, the divorce has
no legal effect.
Parental authority is a constitutionally protected State
policy borne out of established customs and tradition of
our people. Thus, in Silva v. Court of Appeals, 57 a case
involving the visitorial rights of an illegitimate parent
over his child, the Court expressed the opinion that:
Parents have the natural right, as well as the moral and
legal duty, to care for their children, see to their
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 not the courts
allow this affinity to suffer absent, of course, any real,
 16 MDK
grave and imminent threat to the well being of the
child.
Since the incorporation of the law concerning
adoption in the Civil Code, there has been a
pronounced trend to place emphasis in adoption
proceedings, not so much on the need of childless
couples for a child, as on the paramount interest, of a
child who needs the love and care of parents. After the
passage of the Child and Youth Welfare Code and the
Family Code, the discernible trend has impelled the
enactment of Republic Act No. 8043 on Intercountry,
Adoption 58 and Republic Act No. 8552 establishing the
rules on the domestic adoption of Filipino children. 59
The case at bar applies the relevant provisions of these
recent laws, such as the following policies in the
"Domestic Adoption Act of 1998":
(a) To ensure that every child remains under the care
and custody of his/her parent(s) and be provided with
love, care, understanding and security towards the full
and harmonious development of his/her personality. 60
(b) In all matters relating to the care, custody and
adoption of a child, his/her interest shall be the
paramount consideration in accordance with the
tenets set forth in the United Nations (UN) Convention
on the Rights of the Child. 61
(c) To prevent the child from unnecessary separation
from his/her biological parent(s). 62
Inasmuch as the Philippines is a signatory to the United
Nations Convention on the Rights of the Child, the
government and its officials are duty bound to comply
with its mandates. Of particular relevance to instant
case are the following provisions:
States Parties shall respect the responsibilities, rights and
duties of parents . . . to provide, in a manner consistent
with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of
the rights recognized in the present Convention. 63
States Parties shall respect the right of the child who is
separated from one or both parents to maintain
personal relations and direct contact with both parents
on a regular basis, except if it is contrary to the child's
best interests. 64
A child whose parents reside in different States shall
have the right to maintain on a regular basis, save in
exceptional circumstances personal relations and
direct contacts with both parents . . . 65
States Parties shall respect the rights and duties of the
parents . . . to provide direction to the child in the
exercise of his or her right in a manner consistent with
the evolving capacities of the child. 66
Underlying the policies and precepts in international
conventions and the domestic statutes with respect to
children is the overriding principle that all actuations
should be in the best interests of the child. This is not,
however, to be implemented in derogation of the
primary right of the parent or parents to exercise
parental authority over him. The rights of parents vis-à-
vis that of their children are not antithetical to each
other, as in fact, they must be respected and
harmonized to the fullest extent possible.
Keith, Charmaine and Joseph Anthony have all grown
up. Keith and Charmaine are now of legal age while
Joseph Anthony is approaching eighteen, the age of
majority. For sure, they shall be endowed with the
discretion to lead lives independent of their parents.
This is not to state that this case has been rendered
moot and academic, for their welfare and best
interests regarding their adoption, must be determined
as of the time that the petition for adoption was
filed. 67 Said petition must be denied as it was filed
without the required consent of their father who, by law
and under the facts of the case at bar, has not
abandoned them.
WHEREFORE, the instant petition for review
on certiorari is hereby GRANTED. The questioned
Decision and Resolution of the Court of Appeals, as well
as the decision of the Regional Trial Court of Cebu, are
SET ASIDE thereby denying the petition for adoption of
Keith, Charmaine and Joseph Anthony, all surnamed
Cang, by the spouse respondents Ronald and Maria
Clara Clavano. This Decision is immediately executory.
SO ORDERED.
ART. 189
G.R. No. 164948 June 27, 2006
DIWATA RAMOS LANDINGIN Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under
Rule 45 of the Rules of Court is the Decision1 of the
Court of Appeals in CA-G.R. CV No. 77826 which
reversed the Decision2 of the Regional Trial Court (RTC)
of Tarlac City, Branch 63 in Civil Case No. 2733 granting
the Petition for Adoption of the petitioner herein.
 17 MDK
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen
of the United States of America (USA), of Filipino
parentage and a resident of Guam, USA, filed a
petition3 for the adoption of minors Elaine Dizon Ramos
who was born on August 31, 1986;4 Elma Dizon Ramos,
who was born on September 7, 1987;5 and Eugene
Dizon Ramos who was born on August 5, 1989.6 The
minors are the natural children of Manuel Ramos,
petitioner’s brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that
when Manuel died on May 19, 1990,7 the children were
left to their paternal grandmother, Maria Taruc Ramos;
their biological mother, Amelia, went to Italy, re-
married there and now has two children by her second
marriage and no longer communicated with her
children by Manuel Ramos nor with her in-laws from the
time she left up to the institution of the adoption; the
minors are being financially supported by the petitioner
and her children, and relatives abroad; as Maria
passed away on November 23, 2000, petitioner desires
to adopt the children; the minors have given their
written consent8 to the adoption; she is qualified to
adopt as shown by the fact that she is a 57-year-old
widow, has children of her own who are already
married, gainfully employed and have their respective
families; she lives alone in her own home in Guam, USA,
where she acquired citizenship, and works as a
restaurant server. She came back to the Philippines to
spend time with the minors; her children gave their
written consent9 to the adoption of the minors.
Petitioner’s brother, Mariano Ramos, who earns
substantial income, signified his willingness and
commitment to support the minors while in petitioner’s
custody.
Petitioner prayed that, after due hearing, judgment be
rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this
Honorable Court that after publication and hearing,
judgment be rendered allowing the adoption of the
minor children Elaine Dizon Ramos, Elma Dizon Ramos,
and Eugene Dizon Ramos by the petitioner, and
ordering that the minor children’s name follow the
family name of petitioner.
Petitioner prays for such other reliefs, just and equitable
under the premises.10
On March 5, 2002, the court ordered the Department
of Social Welfare and Development (DSWD) to
conduct a case study as mandated by Article 34 of
Presidential Decree No. 603, as amended, and to
submit a report thereon not later than April 4, 2002, the
date set for the initial hearing of the petition.11 The
Office of the Solicitor General (OSG) entered its
appearance12 but deputized the City Prosecutor of
Tarlac to appear in its behalf.13 Since her petition was
unopposed, petitioner was allowed to present her
evidence ex parte.14
The petitioner testified in her behalf. She also presented
Elaine Ramos, the eldest of the adoptees, to testify on
the written consent executed by her and her
siblings.15 The petitioner marked in evidence the
Affidavit of Consent purportedly executed by her
children Ann, Errol, Dennis and Ricfel Branitley, all
surnamed Landingin, and notarized by a notary public
in Guam, USA, as proof of said consent.16
On May 24, 2002, Elizabeth Pagbilao, Social Welfare
Officer II of the DSWD, Field Office III, Tarlac, submitted
a Child Study Report, with the following
recommendation:
In view of the foregoing, undersigned finds minors
Elaine, Elma & Eugene all surnamed Ramos, eligible for
adoption because of the following reasons:
1. Minors’ surviving parent, the mother has voluntarily
consented to their adoption by the paternal aunt,
Diwata Landingin this is in view of her inability to
provide the parental care, guidance and support they
need. An Affidavit of Consent was executed by the
mother which is hereto attached.
2. The three minors subject for adoption have also
expressed their willingness to be adopted and joins the
petitioners in Guam, USA in the future. A joint Affidavit
of consent is hereto attached. The minors developed
close attachment to the petitioners and they regarded
her as second parent.
3. The minors are present under the care of a
temporary guardian who has also family to look after.
As young adolescents they really need parental love,
care, guidance and support to ensure their protection
and well being.
In view of the foregoing, it is hereby respectfully
recommended that minors Elaine D. Ramos, Elma D.
Ramos and Eugene D. Ramos be adopted by their
maternal aunt Diwata Landingin. Trial custody is hereby
further recommended to be dispensed with
considering that they are close relatives and that close
attachments was already developed between the
petitioner and the 3 minors.17
Pagbilao narrated what transpired during her interview,
as follows:
The mother of minors came home together with her son
John Mario, this May 2002 for 3 weeks vacation. This is
 18 MDK

to enable her appear for the personal interview oppositor-appellant, the OSG raised the following
concerning the adoption of her children. arguments:

The plan for the adoption of minors by their paternal I

aunt Diwata Landingin was conceived after the death
of their paternal grandmother and guardian. The THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR
paternal relatives including the petitioner who ADOPTION DESPITE THE LACK OF CONSENT OF THE
attended the wake of their mother were very much PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.
concerned about the well-being of the three minors.
While preparing for their adoption, they have asked a II
cousin who has a family to stay with minors and act as
their temporary guardian. THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR
ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT
The mother of minors was consulted about the OF THE PETITIONER’S CHILDREN AS REQUIRED BY LAW.
adoption plan and after weighing the benefits of
adoption to her children, she voluntarily consented. She III
realized that her children need parental love,
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR
guidance and support which she could not provide as
ADOPTION DESPITE PETITIONER’S FAILURE TO ESTABLISH
she already has a second family & residing in Italy.
THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED
Knowing also that the petitioners & her children have
ADOPTEES.
been supporting her children up to the present and
truly care for them, she believes her children will be in
On April 29, 2004, the CA rendered a
good hands. She also finds petitioners in a better
decision22 reversing the ruling of the RTC. It held that
position to provide a secured and bright future to her
petitioner failed to adduce in evidence the voluntary
children.18
consent of Amelia Ramos, the children’s natural
mother. Moreover, the affidavit of consent of the
However, petitioner failed to present Pagbilao as
petitioner’s children could not also be admitted in
witness and offer in evidence the voluntary consent of
evidence as the same was executed in Guam, USA
Amelia Ramos to the adoption; petitioner, likewise,
and was not authenticated or acknowledged before a
failed to present any documentary evidence to prove
Philippine consular office, and although petitioner has
that Amelia assents to the adoption.
a job, she was not stable enough to support the
On November 23, 2002, the court, finding merit in the children. The dispositive portion of the CA decision
petition for adoption, rendered a decision granting said reads:
petition. The dispositive portion reads:
WHEREFORE, premises considered, the appealed
WHEREFORE, it is hereby ordered that henceforth, decision dated November 25, 2002 of the Regional Trial
minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is
Dizon Ramos be freed from all legal obligations hereby REVERSED and SET ASIDE.
obedience and maintenance from their natural
SO ORDERED.23
parents and that they be declared for all legal intents
and purposes the children of Diwata Ramos Landingin.
Petitioner filed a Motion for Reconsideration24 on May
Trial custody is dispensed with considering that parent-
21, 2004, which the CA denied in its Resolution dated
children relationship has long been established
August 12, 2004.25
between the children and the adoptive parents. Let
the surnames of the children be changed from "Dizon- Petitioner, thus, filed the instant petition for review on
Ramos" to "Ramos-Landingin." certiorari26 on September 7, 2004, assigning the
following errors:
Let a copy of this decision be furnished the Local Civil
Registrar of Tarlac, Tarlac for him to effect the 1. THAT THE HONORABLE LOWER COURT HAS
corresponding changes/amendment in the birth OVERLOOKED AND MISAPPLIED SOME FACTS AND
certificates of the above-mentioned minors. CIRCUMSTANCES WHICH ARE OF WEIGHT AND
IMPORTANCE AND WHICH IF CONSIDERED WOULD
SO ORDERED.19
HAVE AFFECTED THE RESULT OF THE CASE.

The OSG appealed20 the decision to the Court of

2. THAT THE HONORABLE LOWER COURT ERRED IN
Appeals on December 2, 2002. In its brief21 for the
CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT
 19 MDK
FINANCIALLY CAPABLE TO SUPPORT THE THREE
CHILDREN.27
The issues raised by the parties in their pleadings are the
following: (a) whether the petitioner is entitled to adopt
the minors without the written consent of their
biological mother, Amelia Ramos; (b) whether or not
the affidavit of consent purportedly executed by the
petitioner-adopter’s children sufficiently complies with
the law; and (c) whether or not petitioner is financially
capable of supporting the adoptees.
The Court’s Ruling
The petition is denied for lack of merit.
It has been the policy of the Court to adhere to the
liberal concept, as stated in Malkinson v. Agrava,28 that
adoption statutes, being humane and salutary, hold
the interest and welfare of the child to be of
paramount consideration and are designed to provide
homes, parental care and education for unfortunate,
needy or orphaned children and give them the
protection of society and family in the person of the
adopter as well as to allow childless couples or persons
to experience the joys of parenthood and give them
legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every
reasonable intendment should thus be sustained to
promote and fulfill these noble and compassionate
objectives of the law.29
However, in Cang v. Court of Appeals,30 the Court also
ruled that the liberality with which this Court treats
matters leading to adoption insofar as it carries out the
beneficent purposes of the law to ensure the rights and
privileges of the adopted child arising therefrom, ever
mindful that the paramount consideration is the overall
benefit and interest of the adopted child, should be
understood in its proper context and perspective. The
Court’s position should not be misconstrued or
misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence. Thus, the
discretion to approve adoption proceedings is not to
be anchored solely on best interests of the child but
likewise, with due regard to the natural rights of the
parents over the child.31
Section 9 of Republic Act No. 8552, otherwise known as
the Domestic Adoption Act of 1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. -
After being properly counseled and informed of his/her
right to give or withhold his/her approval of the
adoption, the written consent of the following to the
adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the
legal guardian, or the proper government
instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten
(10) years of age or over, of the adopter(s) and
adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of
age or over, of the adopter, if living with said adopter
and the latter’s souse, if any;
(e) The spouse, if any, of the person adopting or to be
adopted.
The general requirement of consent and notice to the
natural parents is intended to protect the natural
parental relationship from unwarranted interference by
interlopers, and to insure the opportunity to safeguard
the best interests of the child in the manner of the
proposed adoption.32
Clearly, the written consent of the biological parents is
indispensable for the validity of a decree of adoption.
Indeed, the natural right of a parent to his child requires
that his consent must be obtained before his parental
rights and duties may be terminated and re-established
in adoptive parents. In this case, petitioner failed to
submit the written consent of Amelia Ramos to the
adoption.
We note that in her Report, Pagbilao declared that she
was able to interview Amelia Ramos who arrived in the
Philippines with her son, John Mario in May 2002. If said
Amelia Ramos was in the Philippines and Pagbilao was
able to interview her, it is incredible that the latter
would not require Amelia Ramos to execute a Written
Consent to the adoption of her minor children. Neither
did the petitioner bother to present Amelia Ramos as
witness in support of the petition.
Petitioner, nonetheless, argues that the written consent
of the biological mother is no longer necessary
because when Amelia’s husband died in 1990, she left
for Italy and never came back. The children were then
left to the guidance and care of their paternal
grandmother. It is the paternal relatives, including
petitioner, who provided for the children’s financial
needs. Hence, Amelia, the biological mother, had
effectively abandoned the children. Petitioner further
contends that it was by twist of fate that after 12 years,
when the petition for adoption was pending with the
RTC that Amelia and her child by her second marriage
were on vacation in the Philippines. Pagbilao, the
DSWD social worker, was able to meet her, and during
the meeting, Amelia intimated to the social worker that
she conformed to the adoption of her three children by
the petitioner.
 20 MDK
Petitioner’s contention must be rejected. When she
filed her petition with the trial court, Rep. Act No. 8552
was already in effect. Section 9 thereof provides that if
the written consent of the biological parents cannot be
obtained, the written consent of the legal guardian of
the minors will suffice. If, as claimed by petitioner, that
the biological mother of the minors had indeed
abandoned them, she should, thus have adduced the
written consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the
adoption of his child without his consent, is a conduct
which evinces a settled purpose to forego all parental
duties.33 The term means neglect and refusal to perform
the filial and legal obligations of love and support. If a
parent withholds presence, love, care, the opportunity
to display filial affection, and neglects to lend support
and maintenance, the parent, in effect, abandons the
child.34
Merely permitting the child to remain for a time
undisturbed in the care of others is not such an
abandonment.35 To dispense with the requirement of
consent, the abandonment must be shown to have
existed at the time of adoption.36
In this case, petitioner relied solely on her testimony and
that of Elaine Ramos to prove her claim that Amelia
Ramos had abandoned her children. Petitioner’s
testimony on that matter follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was
there an instance where she communicated with the
family?
A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married
with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by
her second marriage?
A Yes, sir, she got two kids.37
Elaine, the eldest of the minors, testified, thus:
Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in
1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your
mother communicate with you?
A No, sir.38
However, the Home Study Report of the DSWD Social
Worker also stated the following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings had been
under the care and custody of their maternal
grandmother. However, she died in Nov. 2001 and an
uncle, cousin of their deceased father now serves as
their guardian. The petitioner, together with her
children and other relatives abroad have been
supporting the minor children financially, even during
the time that they were still living with their natural
parents. Their mother also sends financial support but
very minimal.39
xxxx
V. Background Information about the Minors Being
Sought for Adoption:
xxxx
As the eldest she tries her best to be a role model to her
younger siblings. She helps them in their lessons, works
and has fun with them. She also encourages openness
on their problems and concerns and provides petty
counseling. In serious problems she already consult (sic)
her mother and petitioner-aunt.40
xxxx
 21 MDK
In their 5 years of married life, they begot 3 children,
herein minors, Amelia recalled that they had a happy
and comfortable life. After the death of her husband,
her in-laws which include the petitioner had continued
providing support for them. However being ashamed of
just depending on the support of her husband’s
relatives, she decided to work abroad. Her parents are
also in need of financial help as they are undergoing
maintenance medication. Her parents mortgaged their
farm land which she used in going to Italy and worked
as domestic helper.
When she left for Italy in November 1990, she entrusted
her 3 children to the care & custody of her mother-in-
law who returned home for good, however she died on
November 2000.
While working in Italy, she met Jun Tayag, a married
man from Tarlac. They became live-in partners since
1995 and have a son John Mario who is now 2 years
old. The three of them are considered Italian residents.
Amelia claimed that Mr. Tayag is planning to file an
annulment of his marriage and his wife is amenable to
it. He is providing his legitimate family regular support.
Amelia also sends financial support ranging from
P10,000-P15,000 a month through her parents who
share minimal amount of P3,000-P5,000 a month to his
(sic) children. The petitioner and other paternal
relatives are continuously providing support for most of
the needs & education of minors up to present.41
Thus, when Amelia left for Italy, she had not intended to
abandon her children, or to permanently sever their
mother-child relationship. She was merely impelled to
leave the country by financial constraints. Yet, even
while abroad, she did not surrender or relinquish entirely
her motherly obligations of rearing the children to her
now deceased mother-in-law, for, as claimed by Elaine
herself, she consulted her mother, Amelia, for serious
personal problems. Likewise, Amelia continues to send
financial support to the children, though in minimal
amounts as compared to what her affluent in-laws
provide.
Let it be emphasized, nevertheless, that the adoption
of the minors herein will have the effect of severing all
legal ties between the biological mother, Amelia, and
the adoptees, and that the same shall then be vested
on the adopter.42 It would thus be against the spirit of
the law if financial consideration were to be the
paramount consideration in deciding whether to
deprive a person of parental authority over his/her
children. More proof has to be adduced that Amelia
has emotionally abandoned the children, and that the
latter will not miss her guidance and counsel if they are
given to an adopting parent.43 Again, it is the best
interest of the child that takes precedence in adoption.
Section 34, Rule 132 of the Rules of Court provides that
the Court shall consider no evidence which has not
been formally offered. The purpose for which the
evidence is offered must be specified. The offer of
evidence is necessary because it is the duty of the
Court to rest its findings of fact and its judgment only
and strictly upon the evidence offered by the parties.
Unless and until admitted by the court in evidence for
the purpose or purposes for which such document is
offered, the same is merely a scrap of paper barren of
probative weight. Mere identification of documents
and the markings thereof as exhibits do not confer any
evidentiary weight on documents unless formally
offered.44
Petitioner failed to offer in evidence Pagbilao’s Report
and of the Joint Affidavit of Consent purportedly
executed by her children; the authenticity of which
she, likewise, failed to prove. The joint written consent of
petitioner’s children45 was notarized on January 16,
2002 in Guam, USA; for it to be treated by the Rules of
Court in the same way as a document notarized in this
country it needs to comply with Section 2 of Act No.
2103,46 which states:
Section 2. An instrument or document acknowledged
and authenticated in a foreign country shall be
considered authentic if the acknowledgment and
authentication are made in accordance with the
following requirements:
(a) The acknowledgment shall be made before (1) an
ambassador, minister, secretary of legation, chargé d
affaires, consul, vice-consul, or consular agent of the
Republic of the Philippines, acting within the country or
place to which he is accredited, or (2) a notary public
or officer duly authorized by law of the country to take
acknowledgments of instruments or documents in the
place where the act is done.
(b) The person taking the acknowledgment shall certify
that the person acknowledging the instrument or
document is known to him, and that he is the same
person who executed it, and acknowledged that the
same is his free act and deed. The certificate shall be
under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state. In case the
acknowledgment is made before a notary public or an
officer mentioned in subdivision (2) of the preceding
paragraph, the certificate of the notary public or the
officer taking the acknowledgment shall be
authenticated by an ambassador, minister, secretary of
legation, chargé de affaires, consul, vice-consul, or
consular agent of the Republic of the Philippines,
acting within the country or place to which he is
accredited. The officer making the authentication shall
certify under his official seal that the person who took
the acknowledgment was at the time duly authorized
 22 MDK
to act as notary public or that he was duly exercising
the functions of the office by virtue of which he
assumed to act, and that as such he had authority
under the law to take acknowledgment of instruments
or documents in the place where the acknowledgment
was taken, and that his signature and seal, if any, are
genuine.
As the alleged written consent of petitioner’s legitimate
children did not comply with the afore-cited law, the
same can at best be treated by the Rules as a private
document whose authenticity must be proved either
by anyone who saw the document executed or
written; or by evidence of the genuineness of the
signature or handwriting of the makers.47
Since, in the instant case, no further proof was
introduced by petitioner to authenticate the written
consent of her legitimate children, the same is
inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that
petitioner was not stable enough to support the
children and is only relying on the financial backing,
support and commitment of her children and her
siblings.48 Petitioner contradicts this by claiming that she
is financially capable as she has worked in Guam for 14
years, has savings, a house, and currently earns $5.15
an hour with tips of not less than $1,000.00 a month. Her
children and siblings have likewise committed
themselves to provide financial backing should the
need arise. The OSG, again in its comment, banks on
the statement in the Home Study Report that "petitioner
has limited income." Accordingly, it appears that she
will rely on the financial backing of her children and
siblings in order to support the minor adoptees. The law,
however, states that it is the adopter who should be in
a position to provide support in keeping with the means
of the family.
Since the primary consideration in adoption is the best
interest of the child, it follows that the financial
capacity of prospective parents should also
be carefully evaluated and considered. Certainly, the
adopter should be in a position to support the would-
be adopted child or children, in keeping with the
means of the family.
According to the Adoption Home Study
Report49 forwarded by the Department of Public Health
& Social Services of the Government of Guam to the
DSWD, petitioner is no longer supporting her legitimate
children, as the latter are already adults, have
individual lives and families. At the time of the filing of
the petition, petitioner was 57 years old, employed on a
part-time basis as a waitress, earning $5.15 an hour and
tips of around $1,000 a month. Petitioner’s main
intention in adopting the children is to bring the latter to
Guam, USA. She has a house at Quitugua Subdivision in
Yigo, Guam, but the same is still being amortized.
Petitioner likewise knows that the limited income might
be a hindrance to the adoption proceedings.
Given these limited facts, it is indeed doubtful whether
petitioner will be able to sufficiently handle the
financial aspect of rearing the three children in the US.
She only has a part-time job, and she is rather of age.
While petitioner claims that she has the financial
support and backing of her children and siblings, the
OSG is correct in stating that the ability to support the
adoptees is personal to the adopter, as adoption only
creates a legal relation between the former and the
latter. Moreover, the records do not prove nor support
petitioner’s allegation that her siblings and her children
are financially able and that they are willing to support
the minors herein. The Court, therefore, again sustains
the ruling of the CA on this issue.
While the Court recognizes that petitioner has only the
best of intentions for her nieces and nephew, there are
legal infirmities that militate against reversing the ruling
of the CA. In any case, petitioner is not prevented from
filing a new petition for adoption of the herein minors.
WHEREFORE, premises considered, the petition is hereby
DENIED.
SO ORDERED.
ART. 195
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 182367 December 15, 2010
CHERRYL B. DOLINA, Petitioner,
vs.
GLENN D. VALLECERA, Respondent.
DECISION
ABAD, J.:
This case is about a mother’s claim for temporary
support of an unacknowledged child, which she sought
in an action for the issuance of a temporary protection
order that she brought against the supposed father.
The Facts and the Case
In February 2008 petitioner Cherryl B. Dolina filed a
petition with prayer for the issuance of a temporary
protection order against respondent Glenn D.
 23 MDK
Vallecera before the Regional Trial Court (RTC) of
Tacloban City in P.O. 2008-02-071 for alleged woman
and child abuse under Republic Act (R.A.) 9262.2 In
filling out the blanks in the pro-forma complaint, Dolina
added a handwritten prayer for financial support3 from
Vallecera for their supposed child. She based her
prayer on the latter’s Certificate of Live Birth which
listed Vallecera as the child’s father. The petition also
asked the RTC to order Philippine Airlines, Vallecera’s
employer, to withhold from his pay such amount of
support as the RTC may deem appropriate.
Vallecera opposed the petition. He claimed that
Dolina’s petition was essentially one for financial
support rather than for protection against woman and
child abuses; that he was not the child’s father; that the
signature appearing on the child’s Certificate of Live
Birth is not his; that the petition is a harassment suit
intended to force him to acknowledge the child as his
and give it financial support; and that Vallecera has
never lived nor has been living with Dolina, rendering
unnecessary the issuance of a protection order against
him.
On March 13, 20084 the RTC dismissed the petition after
hearing since no prior judgment exists establishing the
filiation of Dolina’s son and granting him the right to
support as basis for an order to compel the giving of
such support. Dolina filed a motion for reconsideration
but the RTC denied it in its April 4, 2008 Order,5 with an
admonition that she first file a petition for compulsory
recognition of her child as a prerequisite for support.
Unsatisfied, Dolina filed the present petition for review
directly with this Court.
The Issue Presented
The sole issue presented in this case is whether or not
the RTC correctly dismissed Dolina’s action for
temporary protection and denied her application for
temporary support for her child.
The Court’s Ruling
Dolina evidently filed the wrong action to obtain
support for her child. The object of R.A. 9262 under
which she filed the case is the protection and safety of
women and children who are victims of abuse or
violence.6 Although the issuance of a protection order
against the respondent in the case can include the
grant of legal support for the wife and the child, this
assumes that both are entitled to a protection order
and to legal support.
Dolina of course alleged that Vallecera had been
abusing her and her child.1avvphil But it became
apparent to the RTC upon hearing that this was not the
case since, contrary to her claim, neither she nor her
child ever lived with Vallecera. As it turned out, the true
object of her action was to get financial support from
Vallecera for her child, her claim being that he is the
father. He of course vigorously denied this.
To be entitled to legal support, petitioner must, in
proper action, first establish the filiation of the child, if
the same is not admitted or acknowledged. Since
Dolina’s demand for support for her son is based on her
claim that he is Vallecera’s illegitimate child, the latter
is not entitled to such support if he had not
acknowledged him, until Dolina shall have proved his
relation to him.7 The child’s remedy is to file through her
mother a judicial action against Vallecera for
compulsory recognition.8 If filiation is beyond question,
support follows as matter of obligation.9 In short,
illegitimate children are entitled to support and
successional rights but their filiation must be duly
proved.10
Dolina’s remedy is to file for the benefit of her child an
action against Vallecera for compulsory recognition in
order to establish filiation and then demand support.
Alternatively, she may directly file an action for support,
where the issue of compulsory recognition may be
integrated and resolved.11
It must be observed, however, that the RTC should not
have dismissed the entire case based solely on the lack
of any judicial declaration of filiation between
Vallecera and Dolina’s child since the main issue
remains to be the alleged violence committed by
Vallecera against Dolina and her child and whether
they are entitled to protection. But of course, this
matter is already water under the bridge since Dolina
failed to raise this error on review. This omission lends
credence to the conclusion of the RTC that the real
purpose of the petition is to obtain support from
Vallecera.
While the Court is mindful of the best interests of the
child in cases involving paternity and filiation, it is just as
aware of the disturbance that unfounded paternity
suits cause to the privacy and peace of the putative
father’s legitimate family.12 Vallecera disowns Dolina’s
child and denies having a hand in the preparation and
signing of its certificate of birth. This issue has to be
resolved in an appropriate case.
ACCORDINGLY, the Court DENIES the petition and
AFFIRMS the Regional Trial Court of Tacloban City’s
Order dated March 13, 2008 that dismissed petitioner
Cherryl B. Dolina’s action in P.O. 2008-02-07, and Order
dated April 4, 2008, denying her motion for
reconsideration dated March 28, 2008.
SO ORDERED.
 24 MDK
ART.210
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 166682 November 27, 2009
NOEL B. BAGTAS, Petitioner,
vs.
HON. RUTH C. SANTOS, Presiding Judge of Regional Trial
Court, Branch 72, Antipolo City, and ANTONIO and
ROSITA GALLARDO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition1 for review on certiorari under Rule 45 of
the Rules of Court. The petition challenges the 11 June
2004 Decision2 and 5 January 2005 Resolution3 of the
Court of Appeals in CA-G.R. SP No. 77751. The Court of
Appeals affirmed the 9 December 20024 and 21 April
2003 Orders of the Regional Trial Court (RTC), Judicial
Region 4, Branch 72, Antipolo City, in Special
Proceeding Case No. 02-1128.
The Facts
Antonio and Rosita S. Gallardo (Spouses Gallardo) are
the parents of Maricel S. Gallardo (Maricel). Two weeks
after graduating from high school in April 2000, Maricel
ran away to live with her boyfriend. Maricel became
pregnant and gave birth to Maryl Joy S. Gallardo
(Maryl Joy). Maricel’s boyfriend left her.
In February 2002, Maricel returned to her parents. On
the same day, Maricel ran away again and lived with
Noel B. Bagtas (Bagtas) and Lydia B. Sioson (Sioson) at
Ma. Corazon, Unirock, Barangay Sta. Cruz, Antipolo
City. Maricel went to Negros Occidental and left Maryl
Joy in the custody of Bagtas and Sioson. In a
letter5 dated 5 February 2001, Maricel relinquished her
rights over Maryl Joy to Bagtas and his wife. She stated:
Ako po si Maricel S. Gallardo 18 taong gulang ay
kusang ipinagkaloob ang aking anak sa pagkadalaga
sa mag-asawang Noel B. Bagtas at Neneth A. Bagtas
sa kadahilanan pong itinakwil ako ng sarili kong mga
magulang at hindi ko po kayang buhayin at dahil po
sa tinakbuhan ako ng aking boyfriend kaya wala na
pong ibang paraan para ako makabangon o
makapagsimula ng panibagong buhay kaya para
mabigyan ng magandang buhay ang aking anak inisip
ko po na ito na ang pinaka madaling paraan para po
sa pagbabago ng aking buhay.
Kaya mula sa araw na ito ay wala na akong karapatan
sa aking anak. Sila ang tatayo bilang magulang ng
aking anak.
In April 2002, the Spouses Gallardo tried to obtain the
custody of Maryl Joy from Bagtas and Sioson. Bagtas
and Sioson refused. Unable to settle the matter, the
Spouses Gallardo filed with the RTC a petition6 for
habeas corpus.
In its Order7 dated 10 July 2002, the RTC issued a writ of
habeas8 corpus directing the deputy sheriff to produce
Maryl Joy before it and to summon Bagtas and Sioson
to explain why they were withholding the custody of
Maryl Joy.
The Spouses Gallardo, Bagtas and Sioson entered into a
compromise agreement. In its Order9 dated 13
September 2002, the RTC stated:
In today’s hearing, both parties appeared with their
respective counsels and have agreed on the following:
1. that the child should be placed in custody of the
petitioners on Friday, Saturday and Sunday;
2. that the child should be returned to the respondents
by the petitioners on Sunday at 8:00 o’clock in the
evening subject to visitorial rights of the petitioners
anytime of the day; and
3. that the child can be brought by the respondents to
Valenzuela but should be returned to the petitioners on
Friday morning.
The above agreement shall take effect today and
parties are ordered to comply strictly with the said
agreement under pain of contempt in case of violation
thereof.
On 29 September 2002, Bagtas and Sioson learned that
Rosita S. Gallardo brought Maryl Joy to Samar. In their
motion10 dated 30 September 2002, Bagtas and Sioson
prayed that the Spouses Gallardo be directed to
produce Maryl Joy before the RTC, that they be
directed to explain why they violated the RTC’s 13
September 2002 Order, and that they be cited in
contempt. In their motion11 to dismiss dated 11 October
2002, Bagtas and Sioson prayed that the Spouses
Gallardo’s action be dismissed pursuant to Section 3,
Rule 17, of the Rules of Court. Section 3 states that "If, for
no justifiable cause, the plaintiff fails x x x to comply
with x x x any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court’s own motion." Bagtas and Sioson claimed that
 25 MDK
the Spouses Gallardo failed to comply with the RTC’s 13
September 2002 Order.
In its Order12 dated 15 October 2002, the RTC cited the
Spouses Gallardo in contempt, fined them ₱500, and
ordered them to produce Maryl Joy before the trial
court.
The RTC’s Ruling
In its Order13 dated 9 December 2002, the RTC
dismissed the action for having become moot. The RTC
stated:
In this petition, the prayer of the petitioners is to
produce the person of Meryl [sic] Joy S. Gallardo
before this court to be turned over to herein petitioners
who are the maternal [grandparents] of said minor.
Since the person subject of the petition has already
produced [sic] to this court and has been turned over
to the petitioners, the issue on the petition for habeas
corpus is now moot and academic without prejudice
to the filing of the proper action to determine as to the
rightful custody over the minor child.
In view thereof, x x x the Motion to Dismiss is hereby
granted but without prejudice on the petitioners to file
proper action for custody of the minor. (Emphasis
supplied)
In their motion14 for reconsideration dated 27
December 2002, Bagtas and Sioson alleged that the
ground for the dismissal of the action was erroneous.
The action should have been dismissed pursuant to
Section 3, Rule 17, of the Rules of Court. They prayed
that Maryl Joy be returned to them to preserve the
status quo ante. Bagtas and Sioson stated:
5. Thus, the Honorable Court very clearly issued a
conflicting Order because It has cited the [Spouses
Gallardo] in contempt of court for violating the
previous September 13, 2002 Order that the child
should be returned to the respondents in the evening of
September 29, 2002 (Sunday), and yet the Honorable
Court has dismissed the petition for being moot and
academic. This is in effect giving premium to the act of
the petitioners of not turning over the child to
respondents on September 29, 2002. Likewise, this is
tantamount to rewarding them for not producing the
child in court in violation of the aforesaid September
13, 2002 Order;
6. Moreover, the Honorable Court has issued an
unreasonable Order by stating that the dismissal of the
instant case is without prejudice to the filing of the
proper action for custody of the minor by the
petitioners. Why would the petitioners still file the proper
action for custody if they now have the custody of the
minor?
PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed that the December 9, 2002 Order of the
Honorable Court be partially reconsidered so that the
dismissal of the case will not be based on the ground of
being moot and academic but based on failure to
comply with the September 13, 2002 pursuant [sic] to
Section 3, Rule 17 of the 1997 Rules of Civil Procedure
and that petitioners be consequently directed to return
the person subject of the petition to the respondents to
preserve the status quo ante.
In its Order15 dated 21 April 2003, the RTC denied the
motion for reconsideration. The RTC held that the sole
purpose of the petition for habeas corpus was the
production of Maryl Joy and that the Spouses Gallardo
exercised substitute parental authority over Maryl Joy.
The RTC stated that:
The allegations in the Petition show that the sole
purpose for the filing of the Petition is to cause the
production before the Court of the person of minor
Meryl [sic] Joy S. Gallardo, not a determination of the
legality or illegality of respondents’ custody of the child,
petitioners being aware of the fact that the child was
left by their (petitioners’) daughter to [sic] the custody
of the respondents, as stated in par. no. 10 of the
Petition.
The instant Petition is therefore, essentially not a petition
for Habeas Corpus as contemplated in Rule 102,
Revised Rules of Court which is resorted to in all cases of
illegal confinement by which any person is deprived of
his liberty (Cruz vs. CA, 322 SCRA 518), but is resorted to
also where the rightful custody of any person is withheld
from the person entitled thereto as contemplated in
Rule 102, Revised Rules of Court. In order that the
special remedy of Habeas Corpus maybe [sic] invoked,
it is necessary that there should be an actual and
effective restraint or deprivation of liberty. A nominal or
moral restraint is not sufficient (Gonzales vs. Viola, et al.,
61 Phil 824).
Since therefore, the purpose of the instant Petition has
already been served, as the child has been produced
and delivered to the petitioners, the instant Petition
logically has become moot and academic. Petitioners
are, under the law (Art. 214, Family Code), authorized
to exercise substitute parental authority over the child
in case of death, absence or unsuitability of the
parents, the entitlement to the legal custody of the
child being necessarily included therein to make
possible and/or enable the petitioners to discharge
their duties as substitute parents.
 26 MDK
There is no inconsistency between the Order dated
December 9, 2002 sought to be reconsidered, and the
Order dated October 15, 2002, as the latter was issued
pursuant to an incident, an interlocutory matter, that is,
the failure of the petitioners to comply with the
agreement reached between the parties in open court
on September 13, 2002. The said Order dated October
15, 2002 is not a resolution of the case in the main, as it
did not terminate the case. The Order dated
December 9, 2002, on the other hand, terminated the
case, and considering that the dismissal of the case
was unqualified, the same amounted to an
adjudication on the merits pursuant to Sec. 3, Rule 17 of
the Revised Rules of Court Procedure, therefore, the
agreement earlier entered by and between the herein
parties is deemed terminated. (Emphasis supplied)
Bagtas filed with the Court of Appeals a petition16 for
certiorari under Rule 65 of the Rules of Court. Bagtas
alleged that (1) the RTC erred when it ruled that the
sole purpose of the 1 August 2002 petition was the
production of Maryl Joy before the trial court, (2) the
RTC erred when it ruled that the petition was "essentially
not a petition for Habeas Corpus as contemplated in
Rule 102," (3) the RTC erred when it ruled that there
must be actual and effective deprivation of liberty, (4)
the RTC erred when it ruled that the action had
become moot, (5) the RTC erred when it ruled that the
Spouses Gallardo had substitute parental authority over
Maryl Joy, and (6) the RTC erred when it ruled that
there was no inconsistency between the 15 October
and 9 December 2002 Orders.
The Court of Appeals’ Ruling
In its Decision dated 11 June 2004, the Court of Appeals
dismissed the petition and affirmed the 9 December
2002 and 23 April 2003 Orders of the RTC. The Court of
Appeals held that:
In the second part of [Section 1, Rule 102, of the Rules
of Court], x x x habeas corpus may be resorted to in
cases where the rightful custody of any person is
withheld from the person entitled thereto. Accordingly,
the writ of habeas corpus is the proper remedy to
enable herein private respondents to regain the
custody of their minor grand daughter Maryl Joy who
was admittedly left by her natural mother in the care of
petitioner and Lydia Sioson.
Significantly, in custody cases involving minors, the
question of illegal or involuntary restraint is not the
underlying rationale for the availability of the writ of
habeas corpus as a remedy; rather, the writ is
prosecuted for the purpose of determining the right of
custody of a child. By dismissing the petition a quo, the
trial court in effect upheld private respondents’ right of
custody over the minor involved as against that of
petitioner.
While it cannot be gainsaid that private respondents
obtained initial custody of the minor in violation of a
valid court order, we nonetheless sustain the judgment
a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private
respondents are the grandparents of Maryl Joy, hence,
lawfully authorized to exercise substitute parental
authority over her in the absence of her parents. What
is more, in awarding custody to private respondents,
the best welfare of the child was taken into
consideration inasmuch as, per report of the Court
Social Worker, the implementation of the parties’
agreement would cause more psychological damage
and traumatic experience to Maryl Joy. To our mind,
therefore, the violation of a court order pales in
significance when considered alongside the best
interest of the minor whose welfare requires that she be
in the custody of her grandparents rather than
petitioner’s. x x x
Under the factual and legal milieux of the case, there is
no question that as grandparents of the minor, Maryl
Joy, private respondents have a far superior right of
custody over her than petitioner.17
The Issues
In his petition dated 1 February 2005, Bagtas raised as
issues that:
THE COURT OF APPEALS ERRED AND GRAVELY ABUSED
ITS DISCRETION IN NOT FINDING THAT TRIAL COURT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF JURISDICTION IN FINDING THAT THE
ALLEGATION IN THE PETITION FOR HABEAS CORPUS
SHOW THAT THE SOLE PURPOSE FOR THE FILING THEREOF
IS TO CAUSE THE PRODUCTION BEFORE THE COURT OF
THE PERSON IN WHOSE FAVOR IT WAS FILED.
THE COURT OF APPEALS GRAVELY ERRED AND ABUSED
ITS DISCRETION IN NOT FINDING THAT THE TRIAL COURT
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK
OF JURISDICTION IN RULING THAT WITH THE DELIVERY OF
THE CHILD FOR WHOM THE PETITION WAS FILED, THE
PETITION FOR HABEAS CORPUS HAS BECOME MOOT
AND ACADEMIC.
The Court’s Ruling
The Court of Appeals erred when it affirmed the RTC’s 9
December 2002 and 21 April 2003 Orders. In its Orders,
the RTC ruled that, since the sole purpose of the
petition for habeas corpus was the production of Maryl
Joy before the trial court, the action became moot
when Maryl Joy was produced. The Court disagrees.
 27 MDK
Section 1, Rule 102, of the Rules of Court states that the
writ of habeas corpus shall extend to all cases where
the rightful custody of any person is withheld from the
persons entitled thereto. In cases involving minors, the
purpose of a petition for habeas corpus is not limited to
the production of the child before the court. The main
purpose of the petition for habeas corpus is to
determine who has the rightful custody over the child.
In Tijing v. Court of Appeals,18 the Court held that:
The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody
of any person is withheld from the person entitled
thereto. Thus, it is the proper legal remedy to enable
parents to regain the custody of a minor child even if
the latter be in the custody of a third person of his own
free will. It may even be said that in custody cases
involving minors, the question of illegal and involuntary
restraint of liberty is not the underlying rationale for the
availability of the writ as a remedy. Rather, it is
prosecuted for the purpose of determining the right of
custody over a child. (Emphasis supplied)1avvphi1
The RTC erred when it hastily dismissed the action for
having become moot after Maryl Joy was produced
before the trial court. It should have conducted a trial
to determine who had the rightful custody over Maryl
Joy. In dismissing the action, the RTC, in effect, granted
the petition for habeas corpus and awarded the
custody of Maryl Joy to the Spouses Gallardo without
sufficient basis. In Laxamana v. Laxamana,19 the Court
held that:
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 court’s 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. (Emphasis supplied)
Article 214 of the Civil Code states that in case of
absence or unsuitability of the parents, substitute
parental authority shall be exercised by the surviving
grandparent. Article 216 states that in default of
parents or a judicially appointed guardian, the surviving
grandparent shall exercise substitute parental authority
over the child. Accordingly, in its 21 April 2003 Order,
the RTC held that:
Petitioners are, under the law (Art. 214, Family Code),
authorized to exercise substitute parental authority over
the child in case of death, absence or unsuitability of
the parents, the entitlement to the legal custody of the
child being necessarily included therein to make
possible and/or enable the petitioners to discharge
their duties as substitute parents.20
In its 11 June 2004 Decision, the Court of Appeals held
that:
While it cannot be gainsaid that private respondents
obtained initial custody of the minor in violation of a
valid court order, we nonetheless sustain the judgment
a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private
respondents are the grandparents of Maryl Joy, hence,
lawfully authorized to exercise substitute parental
authority over her in the absence of her parents.21
In determining who has the rightful custody over a
child, the child’s welfare is the most important
consideration. The court is not bound by any legal right
of a person over the child. In Sombong v. Court of
Appeals,22 the Court held that:
The controversy does not involve the question of
personal freedom, because an infant is presumed to
be in the custody of someone until he attains majority
age. In passing on the writ in a child custody case, the
court deals with a matter of an equitable nature. Not
bound by any mere legal right of parent or guardian,
the court gives his or her claim to the custody of the
child due weight as a claim founded on human nature
and considered generally equitable and just. Therefore,
these cases are decided, not on the legal right of the
petitioner to be relieved from unlawful imprisonment or
detention, as in the case of adults, but on the court’s
view of the best interests of those whose welfare
requires that they be in custody of one person or
another. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any person,
but should, in the consideration of the facts, leave it in
such custody as its welfare at the time appears to
require. In short, the child’s welfare is the supreme
consideration.
Considering that the child’s welfare is an all-important
factor in custody cases, the Child and Youth Welfare
Code unequivocally provides that in all questions
regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration.
In the same vein, the Family Code authorizes the courts
to, if the welfare of the child so demands, deprive the
parents concerned of parental authority over the child
or adopt such measures as may be proper under the
circumstances. (Emphasis supplied)
 28 MDK
In Sombong,23 the Court laid down three requisites in
petitions for habeas corpus involving minors: (1) the
petitioner has a right of custody over the minor, (2) the
respondent is withholding the rightful custody over the
minor, and (3) the best interest of the minor demands
that he or she be in the custody of the petitioner. In the
present case, these requisites are not clearly
established because the RTC hastily dismissed the
action and awarded the custody of Maryl Joy to the
Spouses Gallardo without conducting any trial.
The proceedings before the RTC leave so much to be
desired. While a remand of the case would mean
further delay, Maryl Joy’s best interest demands that
proper proceedings be conducted to determine the
fitness of the Spouses Gallardo to take care of her.
WHEREFORE, the Court REMANDS the case to the
Regional Trial Court, Judicial Region 4, Branch 72,
Antipolo City, for the purpose of receiving evidence to
determine the fitness of the Spouses Antonio and Rosita
S. Gallardo to have custody of Maryl Joy Gallardo.
SO ORDERED.
ART 212
G.R. No. 133054 January 28, 1999
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GERSON R. ABADILLA, LUZVIMINDA M. CELESTINO, and
THE MINORS EMERSON C. ABADILLA AND RAFAEL C.
ABADILLA, REPRESENTED BY THEIR GUARDIAN AD LITEM
LUZVIMINDA M. CELESTINO, respondents.
QUISUMBING, J.:
Gerson Abadilla and Luzviminda Celestino have been
living together as husband and wife without the benefit
of marriage. During their cohabitation, Luzviminda
begot two children, Emerson 1 and Rafael.2 In the
Certificates of Birth of these two children, they were
registered with the surname "Abadilla" and the name of
their father was entered as "Herson" Abadilia.
Moreover, the entry in the date and place of marriage
of the children's parents appeared as June 19, 1987 at
Dingras, Ilocos Norte.
Thereafter, an Amended Petition for
Correction/Cancellation of Entries dated February 5,
1997 3 was filed by Gerson Abadilla, Luzviminda
Celestino and their two minor children, Emerson and
Rafael, with the Regional Trial Court of Laoag City,
Branch 65, seeking to have the following corrections
made in the Certificates of Birth of Emerson and Rafael:
xxx xxx xxx
a. ordering that the entries as to the
date and place of marriage of
petitioner GERSON R. ABADILLA and
LUZVIMINDA M. CELESTINO
appearing in the certificates of birth
of Emerson C. Abadilla and Rafael
C. Abadilla be deleted;
b. ordering that the entry as to the first
name of petitioner Gerson C.
Abadilla appearing in the
certificates of birth of (sic) Emerson
C. Abadilla and Rafael C. Abadilla
be corrected as GERSON;
xxx xxx xxx 4
During the hearing of the petition, both Gerson
Abadilla and Luzviminda Celestino testified that they
are not yet married to each other despite bearing two
children.
In a decision dated February 17, 1998, the trial court
granted the petition and ordered the corresponding
correction to be made as follows:
WHEREFORE, under the foregoing premises, the Civil
Registrar of San Nicolas, Ilocos Norte is hereby ordered
to issue an Amended Birth Certificate and Change an
Entry therein by deleting the first name HERSON in the
column "Name of Father" and substitute it with GERSON,
and also to delete the entry appearing the column
"Date of Marriage of Parents" and "Place of Marriage of
Parents and leave it blank, after payment of the
required fees.
SO ORDERED.5
The instant petition for review on certiorari is now being
interposed by the Office of the Solicitor General on the
ground that the trial court committed a reversible error
when it allowed the deletion of the "date and place of
marriage of parents" from the birth certificates of minors
Emerson C. Abadilla and Rafael C. Abadilla but failed
to order the change of the minors' surname from
"Abadilla" to "Celestino.
The petition must be granted.
There is no dispute that Emerson C. Abadilla and Rafael
C. Abadilla are illegitimate children, their parents,
Spouses Herson and Luzviminda not being married to
each other even up to now.
 29 MDK
During the birth of Emerson 6 and Rafael 7, the Family
Code8 was already the governing law and Article 176
of which explicitly provides as follows:
Art. 176. Illegitimate children shall use the surname and
shall be under the parental authority of their
mother, and shall be entitled to support in conformity
with this Code. The legitime of each illegitimate child
shall consist of one half of the legitime of a legitimate
child.
Thus, as illegitimate children, Emerson and Rafael
should bear the surname of their mother, Luzviminda
Celestino. Resultingly, with the correction of the entries
in their birth certificates which deleted the entry in the
date and place of marriage of parents, the
corresponding correction with respect to their surname
should have also been made and changed to
Celestino, their mother's surname.
ACCORDINGLY, in view of the foregoing
considerations, the Decision of the Regional Trial Court
of Laoag City, Branch 65, dated February 17, 1998 in
Spcl. Proc. No. 11114-65 is hereby MODIFIED. The Civil
Registrar of San Nicolas, Ilocos Norte is hereby ordered
to change the entry in the Amended Birth Certificates
of respondent-minors Emerson C. Abadilla and Rafael
C. Abadilla with respect to their surname, and enter
instead therein the surname "Celestino".1âwphi1.nêt
SO ORDERED.
ART. 213
G.R. No. 174485 July 11, 2007
AGNES GAMBOA-HIRSCH Petitioner,
vs.
HON. COURT OF APPEALS and FRANKLIN HARVEY
HIRSCH, Respondents.
RESOLUTION
VELASCO, JR., J.:
This is a petition for certiorari1 under Rule 65 which seeks
to set aside the June 8, 2006 Decision2 of the Court of
Appeals (CA) in CA-G.R. SP No. 94329, which granted
private respondent Franklin Harvey Hirsch (Franklin) joint
custody with petitioner Agnes Gamboa-Hirsch (Agnes)
of their minor daughter Simone Noelle Hirsch (Simone);
and the August 3, 2006 CA Resolution3 denying
petitioner’s Motion for Reconsideration for lack of merit.
Petitioner also prays for the issuance of a temporary
restraining order/injunction preventing the execution
and implementation of the assailed June 8, 2006 CA
Decision.
Franklin and Agnes were married on December 23,
2000 in the City of Bacolod, and established their
conjugal dwelling in Diniwid, Boracay Island, Malay,
Aklan. On December 21, 2002, a child was born to
them and was named Simone. In 2005, the couple
started to have marital problems as Agnes wanted to
stay in Makati City, while Franklin insisted that they stay
in Boracay Island. On March 23, 2006, Agnes came to
their conjugal home in Boracay, and asked for money
and for Franklin’s permission for her to bring their
daughter to Makati City for a brief vacation. Franklin
readily agreed, but soon thereafter discovered that
neither Agnes nor their daughter Simone would be
coming back to Boracay.
Franklin then filed a petition for habeas corpus before
the CA for Agnes to produce Simone in court. On May
19, 2006, the CA issued a Resolution which ordered that
a writ of habeas corpus be issued ordering that Simone
be brought before said court on May 26, 2006. After a
series of hearings and presentation of evidence, the
CA, on June 8, 2006, promulgated the assailed Decision
granting Franklin joint custody with Agnes of their minor
child. Agnes filed a Motion for Reconsideration of this
Decision, which was denied in the CA’s August 3, 2006
Resolution for lack of merit.
Petitioner now comes before this Court praying that we
set aside the June 8, 2006 Decision and August 3, 2006
Resolution of the CA, and that we issue a temporary
restraining order/injunction on the execution and
implementation of the assailed rulings of the CA based
on the following grounds:
(A)
The Court of Appeals seriously erred and acted with
grave abuse of discretion amounting to lack or excess
of jurisdiction when it ruled upon, granted, and
decided the matter of custody x x x during the May 26,
2006 hearing conducted on the petition for writ of
habeas corpus in relation to and with custody of a
minor under A.M. No. 03-03-04-SC, C.A.-GR SP. No.
94329, as no reception of evidence to support said
decision was had thereon, and the honorable court
merely based its decision on mere conjectures and
presumptions.
(B)
The Court of Appeals seriously erred and acted with
grave abuse of discretion amounting to lack or excess
of jurisdiction when it denied the motion for
reconsideration filed by [petitioner Agnes] and only
made addendums thereon appertaining to the
custody aspect in its Decision that the same is deemed
necessary for the protection of the interest of the child
and a mere temporary arrangement while the case
 30 MDK

involving the herein parties are pending before the WHEREFORE, premises considered, the petition is GIVEN
Regional Trial Court x x x quite contrary to its DUE COURSE. The June 8, 2006 Decision and August 3,
pronouncements during the May 26, 2006 hearing 2006 Resolution of the CA are hereby SET ASIDE. Sole
when the matter of custody was insisted upon by custody over Simone Noelle Hirsch is
[respondent Franklin]. hereby AWARDED to the mother, petitioner Agnes
Gamboa-Hirsch.
(C)
SO ORDERED.
The Court of Appeals seriously erred and acted with
grave abuse of discretion amounting to lack or excess G.R. No. 133054 January 28, 1999
of jurisdiction when it granted joint custody in utter
disregard of the provisions of the Family Code, as to REPUBLIC OF THE PHILIPPINES, petitioner,
minors seven (7) years of age and below, in relation to vs.
the jurisprudence and pronouncements laid down by GERSON R. ABADILLA, LUZVIMINDA M. CELESTINO, and
the Honorable Supreme Court on the matter of the said THE MINORS EMERSON C. ABADILLA AND RAFAEL C.
provision.4 ABADILLA, REPRESENTED BY THEIR GUARDIAN AD LITEM
LUZVIMINDA M. CELESTINO, respondents.
Acting on the petition, this Court issued its October 2,
2006 Resolution denying petitioner’s prayer for the
issuance of a temporary restraining order. Petitioner
then filed a Motion for Reconsideration of this QUISUMBING, J.:
Resolution, and on April 11, 2007, this Court granted
petitioner’s Motion for Reconsideration, issued a Gerson Abadilla and Luzviminda Celestino have been
temporary restraining order, and awarded the sole living together as husband and wife without the benefit
custody of the minor, Simone, to petitioner. of marriage. During their cohabitation, Luzviminda
begot two children, Emerson 1 and Rafael.2 In the
This petition has merit. Certificates of Birth of these two children, they were
registered with the surname "Abadilla" and the name of
The CA committed grave abuse of discretion when it their father was entered as "Herson" Abadilia.
granted joint custody of the minor child to both Moreover, the entry in the date and place of marriage
parents. of the children's parents appeared as June 19, 1987 at
Dingras, Ilocos Norte.
The Convention on the Rights of the Child provides that
"in all actions concerning children, whether undertaken Thereafter, an Amended Petition for
by public or private social welfare institutions, courts of Correction/Cancellation of Entries dated February 5,
law, administrative authorities or legislative bodies, the 1997 3 was filed by Gerson Abadilla, Luzviminda
best interests of the child shall be a primary Celestino and their two minor children, Emerson and
consideration (emphasis supplied)."5 The Child and Rafael, with the Regional Trial Court of Laoag City,
Youth Welfare Code, in the same way, unequivocally Branch 65, seeking to have the following corrections
provides that in all questions regarding the care and made in the Certificates of Birth of Emerson and Rafael:
custody, among others, of the child, his/her welfare
shall be the paramount consideration.6 xxx xxx xxx

The so-called "tender-age presumption" under Article a. ordering that the entries as to the
213 of the Family Code may be overcome only by date and place of marriage of
compelling evidence of the mother’s unfitness. The petitioner GERSON R. ABADILLA and
mother is declared unsuitable to have custody of her LUZVIMINDA M. CELESTINO
children in one or more of the following instances: appearing in the certificates of birth
neglect, abandonment, unemployment, immorality, of Emerson C. Abadilla and Rafael
habitual drunkenness, drug addiction, maltreatment of C. Abadilla be deleted;
the child, insanity, or affliction with a communicable
disease.7 Here, the mother was not shown to be b. ordering that the entry as to the first
unsuitable or grossly incapable of caring for her minor name of petitioner Gerson C.
child. All told, no compelling reason has been Abadilla appearing in the
adduced to wrench the child from the mother’s certificates of birth of (sic) Emerson
custody.1avvphi1 C. Abadilla and Rafael C. Abadilla
be corrected as GERSON;
 31 MDK

xxx xxx xxx 4 ACCORDINGLY, in view of the foregoing

considerations, the Decision of the Regional Trial Court
During the hearing of the petition, both Gerson of Laoag City, Branch 65, dated February 17, 1998 in
Abadilla and Luzviminda Celestino testified that they Spcl. Proc. No. 11114-65 is hereby MODIFIED. The Civil
are not yet married to each other despite bearing two Registrar of San Nicolas, Ilocos Norte is hereby ordered
children. to change the entry in the Amended Birth Certificates
of respondent-minors Emerson C. Abadilla and Rafael
In a decision dated February 17, 1998, the trial court C. Abadilla with respect to their surname, and enter
granted the petition and ordered the corresponding instead therein the surname "Celestino".1âwphi1.nêt
correction to be made as follows:
SO ORDERED.
WHEREFORE, under the foregoing premises, the Civil
Registrar of San Nicolas, Ilocos Norte is hereby ordered
to issue an Amended Birth Certificate and Change an
Entry therein by deleting the first name HERSON in the
column "Name of Father" and substitute it with GERSON,
and also to delete the entry appearing the column
"Date of Marriage of Parents" and "Place of Marriage of
Parents and leave it blank, after payment of the
required fees.

SO ORDERED.5

The instant petition for review on certiorari is now being

interposed by the Office of the Solicitor General on the
ground that the trial court committed a reversible error
when it allowed the deletion of the "date and place of
marriage of parents" from the birth certificates of minors
Emerson C. Abadilla and Rafael C. Abadilla but failed
to order the change of the minors' surname from
"Abadilla" to "Celestino.

The petition must be granted.

There is no dispute that Emerson C. Abadilla and Rafael

C. Abadilla are illegitimate children, their parents,
Spouses Herson and Luzviminda not being married to
each other even up to now.

During the birth of Emerson 6 and Rafael 7, the Family

Code8 was already the governing law and Article 176
of which explicitly provides as follows:

Art. 176. Illegitimate children shall use the surname and

shall be under the parental authority of their
mother, and shall be entitled to support in conformity
with this Code. The legitime of each illegitimate child
shall consist of one half of the legitime of a legitimate
child.

Thus, as illegitimate children, Emerson and Rafael

should bear the surname of their mother, Luzviminda
Celestino. Resultingly, with the correction of the entries
in their birth certificates which deleted the entry in the
date and place of marriage of parents, the
corresponding correction with respect to their surname
should have also been made and changed to
Celestino, their mother's surname.