EX PARTE DIVINE

Facts:

Alice Beth and Christopher Devine were wedded and their marriage bore 2 children.

Alice Beth was an employee of the US Army Fort McClellan while Christopher was a member of the faculty at the
Jacksonville State University, Alabama at the time the case was tried.

Both of their children were below 7 years of age, at the time the spouses divorced.

The Court found both parents, notwithstanding their respective shortcomings, equally fit to have custody over their
children, but because of the tender years presumption that the State of Alama subscribes to, custody was awarded to
Alice Beth, the mother.

The Court further held that Christopher Devine could still recover the custody, but he had the burden of proof to show
that the wife is unfit to take care of the kids. Alice Beth, however, did not have to prove such, with the operative benefit
of the tender years presumption.

Hence the instant case, where Christopher alleges that the tender years presumption is violative of his equal protection
under the law, hence this appeal.

Issue:

Whether or not the application of the aforesaid presumption is violative of the equal protection of the husband under the
14th Amendment of the Constitution

Held:

Yes; the tender years presumption represents an unconstitutional gender-based classification which discriminates
between fathers and mothers in child custody proceedings, solely on the basis of sex.

It creates a presumption of fitness and suitability of one parent without consideration of the actual capabilities of both
parties.

It also imposes unnecessary legal burden on the father, which is to prove that the mother is unfit. Thus, the male can
only gain custody if the mother is unfit, despite his own fitness.

The Court held that the lower court must go beyond the considerations of the sex of the parent and the age of the
children, which while are very important, must still be weighed in consonance with the children's emotional, social,
moral, material and educational needs; the respective home environments offered by the parties; the interpersonal
relationship between each child and each parent; the interpersonal relationship between the children; among others.

The Court, therefore, reversed the ruling of the lower courts in affirming the constitutionality of the tender years
presumption.
 SY v. CA
Facts:

The respondent Mercedes Tan Uy-Sy filed a petition for habeas corpus against petitioenr Wilson before the Manila RTC
on January 19, 1994.

She prayed that the said writ be issued, ordering the petitioner to produce their minor children Vanessa and Jeremiah
before the court, and that after the proceedings, their care and custody be awarded to her as the mother.

The petitioner Wilson prayed that the custody of the minors be awarded to him, instead because the respondent was
unfit to take care of the children, owing to the following:

a.) Respondent abandoner her family in 1992

b.) Respondent is mentally unstable

c.) Respondent cannot provide proper care to the children

The trial court issued the writ of habeas corpus, and awarded custody to the respondent, which was further affirmed by
the CA, the latter emphasizing that the respondent had been driven away by the petitioner's family because of religious
differences, her alleged abandonment owing to the job she took in Taiwan, to earn enough money to reclaim her
children, eradicating the allegations raised by the petitioner Wilson.

The appellate court further held that the act of praying outdoors in the rain cannot be considered as evidence of
insanity, as it may simply be an expression of one's faith.

Issue:

Whether or not the lower courts erred in granting custody to the mother

Ruling:

No, the lower courts held correctly. Absent any compelling reason to the contrary, the trial court was correct in
restoring the custody of the children to the mother.

In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational,
social and moral welfare of the child.

We see an operation of the tender years presumption, in that the law favors the mother, if she is a fit and proper person
to have custody of her children.

The law favors the mother if she is fit, because there is no substitute to the advantage and benefit of a mother's love
and devotion.
 FELDMAN v. FELDMAN
Facts:

The parties were married in 1962. During the marriage, Philip, who earned a living as a part-time musician, was involved
in extramarital affairs.

Mady obtained a divorce decree, owing to the cruel and inhuman treatment Philip subjected her to. She was then
awarded custody of two of their minor children.

After their divorce, Mady started dating another married man.

Philip was prompted to file a petition for habeas corpus, seeking custody of the children, because of his ex-wife's
unsound behavior during his visit to her house, where he saw specific items, such as magazines and explicit
photographs, that were indicia of a hyperactive sex life.

Mady in her defense, said that these letters were all for fun and games--the children never saw or were affected by her
sex life, with Phillip even admitting that the children were not.

The evidence showed that the children were well-provided for both physically and emotionally--they were class officers
in their school, the atmosphere in the mother's house was cheerful, and Mady was devoted to them)

Issue:

Whether or not the circumstances surrounding Mady's lifestyle should constitute as ground to revoke

Held:

No, the qualities that were pointed out by Philip are not qualities that constitute unfitness. The right of a divorced
woman to engage in private sexual activities, which in no way involve or affect her minor children, is within the
penumbra of privacy that is under the specific guarantees of the Bill of Rights.

The court further held that it is in the best interests of the children to stay with their mother, unless it is proven that she
is unfit, to which the grounds put forth by the father do not suffice. On the other hand, Phillip is unmarried, lives with his
parents, works 2 nights a week. Weighing Phillip's situation against Mady's, the Court ruled that the custody was to be
maintained with the mother.

GUALBERTO v. GUALBERTO
The respondent Crisanto, filed before the RTC, a petition for declaration of nullity of marriage, with prayer for custody
pendente lite, for nearly 4 year-old son Rafaello.

The RTC granted custody to the father, but later on reversed it in favor of the mother, by operation of the tender years
presumption.

The SC affirmed this decision, even amidst the father citing immorality of the mother due to her alleged lesbian
relations. However, the Court held that this alone is not enough to show unfitness.

The husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have
distracted the offending spouse from exercising proper parental care.

The husband did not provide evidence showing that the mother's lesbian relations have been witnessed by the child or
have negatively affected the child's moral development.
 LAXAMANA v. LAXAMANA
Facts:

The petitioner Reymond Laxamana was a graduate of Bachelor of Laws, while respondent Ma. Lourdes Laxamana held a
degree in Banking and Finance.

Upon marriage, the respondent quit her job in order to become a full-time housewife while the petitioner managed
managed a buy-and-sell, fishpond, and restaurant business, as he did not pass the bar.

The couple had three children. In October 1991, petitioner was confined in Estrellas Home Care Clinic for being a drug
dependent.

He was again confined in 1996 for rehab. In 1997, petitioner was declared drug-free, but respondent alleged otherwise
stating that the petitioner has become irritable since his return, and had even maltreated her at one point.

The respondent abandoned the petitioner Reymond in June 1999, taking the children with her. The petitioner filed a
writ for habeas corpus, for visitation rights, which the court granted. The parties were then ordered to undergo
psychological evaluation, which they passed except for the psychologist's opinion that petitioner, in his belief, was not
completely drug free. The trial court, therefore, awarded the custody to the wife.

Issue:

Whether or not the lower court erred in its decision, when it resolved the issue of custody without trial

Held:

Yes, the court erred. The paramount interests of the children were not given due consideration, and in its stead, the
court a quo relied on the basis of the psychological report of the spouses' conditions to render its decision.

The Court held this to be insufficient to justify awarding custody of the mother.

The results of the psychiatric evaluation showing that he is not yet "completely cured" may render him unfit to take
custody of the children, but there is no evidence to show that respondent is unfit to provide the children with adequate
support , education, as well as moral and intellectual training and development.

Moreover, the children in this case were already 14 and 15, to which the tender years presumption no longer applies.
Yet, the lower court did not ascertain their choice, as to which parent they want to live with.

It is clear that every child has rights, which are not and should not be dependent solely on the wishes, much less the
whims and caprices, of his parents.

The lower courts relied merely on the mutual agreement of the spouses-parents. The Court held that this was not a
sufficient basis to determine the fitness of each parent to be the custodian of the children, and as such, the Court
remanded the case to the lower courts for them to determine in whose custody the children can better be assured the
rights granted to him by law.
 GARSKA V. MCCOY
Facts:

15-year old Gwendolyn McCoy, currently living with her mother and Michael Garska became pregnant by the latter,
which prompted her to be returned to her grandparents' home;

She didn't receive any support from Garska throughout the pregnancy; Garska sent a package of baby food and diapers
upon child's birth; the baby, named Jonathan, developed a respiratory infection which McCoy's grandfather, Stergil
Altizer, tried to get paid by the United Mine Workers Association.

Altizer was informed that Jonathan will only be eligible for the grant due to the infection, if the Altizers adopted him.

McCoy consented to the adoption of Jonathan by her grandparents, which Garska became privy to, prompting him to
visit the baby for the first time, then started to send $15 weekly.

Garska then filed a petition for habeas corpus on January 7, 1980 to secure custody of his son.

The petitions were consolidated;

The petition for adoption was DISMISSED for not meeting the required 6-month period of the child residing with
petitioners immediately prior to the petition.

The petition for habeas corpus then resumed on May 27, 1980. The custody of Jonathan was awarded to Michael
Garska, owing to the considerations that he was the natural father of the child, was better educated, more intelligent,
and more intelligent, more fluent in English than McCoy; he was better able to provide financial support and
maintenance, social and economic environment; had the better appearance and demeanor, and was very highly
motivated to take custody of the child, compared to McCoy's consenting to adoption of her son.

McCoy asserts then the following errors:

- The fact that the tender years presumption was not taken into account; the application of the court of inappropriate
standards; the refusal of the court to allow petitioner to withdraw her consent to adoption, despite the adoption
proceeding itself being dismissed.

Issue:

Whether or not the awarding of custody to Michael Garska, was in line with the presumption of a primary caretarker

Held:

No; with reference to custdoy of children of tender years, the law presumes that it is in best interests of the children to
be placed in the custody of their primary caretaker, regardless of sex, if he or she is fit.

Michael Garska does not meet the standards to determine what a primary caretaker basically is.

A primary caretaker basically is someone who:

1. Prepares and plans meals

2. Bathing, grooming and dressing
3. Clothing care
4. Primary medical care; trips to the doctor
5. Transportation to social activities
6. Arranging alternative care
7. Attending to child from waking up to bedtime
8. Basic discipline and training
9. Education (regligious, cultural, social, etc.)
10. Elementary skills
If this is shared equally by the parents, there is no presumption, hence the need for further inquiry as to parental
competence; when the primary caretaker is ascertained, his fitness is still subject to determination.

This only applies to children of tender years; a child old enough to have an opinion regarding his/her custody in entitled
to voice out such.

If the primary caretake achieves the minimum, objective standard, the custody should be awarded to him/her.

The Court held that Gwendolyn McCoy is the primary caretaker and no evidence proves her unfitness as a parent.

MNOOKIN, CHILD CUSTODY ADJUDICATION JUDICIAL FUNCTIONS IN THE FACE OF INDETERMINACY