Position Paper

Facts (Sherwin & Hannah)

Mary Adler, an intellectually gifted 7-year-old child is the subject of custody battle between her uncle and
grandmother.

Mary lived in a small town in Tampa Florida with her uncle, Frank Adler, the de facto custodian. Frank was a
former college professor at Boston University and is now working as a boat repairman. When Mary was just 6
months old, her mother, Diane Adler, a promising mathematician, succumbed to suiciude. After that incident,
Mary was with Frank ever since. Mary’s best friend in their neighborhood is a 43-year-old woman named
Roberta. Mary also has a cat named Fred which she is very attached to.

On the first day of school, Mary showcased her remarkable mathematical talent and as a result, she was offered
a scholarship to a private school for gifted children but Frank turned down the offer. He wanted Mary to have a
normal childhood and to not make her feel that she is different from other kids.

The news reached the knowledge of Evelyn Adler, Frank’s estranged mother and Mary’s maternal grandmother.
The same grandmother who, according to Frank, turned her back on her own daughter, Diane, when the latter
got pregnant. Evelyn, also a mathematician, studied at Cambridge University, England. She went to America
when she got married and had children. This was one of the factors that made her a strict and limiting parent to
Diane. Now, she seeks to gain custody of Mary whom she has not seen ever. She strongly argues with Frank
that Mary is living in an unclean and unwholesome condition and subjecting her in her current substandard
living is tantamount to denying the development of Mary’s great potential. Evelyn intends to have Mary
specially tutored in preparation for a life devoted to mathematics, much as like what Diane had gone through. In
this regard, Frank stood his ground and said his sister would have wanted Mary to be in a normal school and be
surrounded by normal people, having the childhood Diane never had.

When the case for custody started, Evelyn alleged Frank for preemptively and illegally taking custody of Mary
and denying her of custody over her grandchild. The grandmother prays that she should have full custody over
the child, Mary. Frank countered that it was the desire of Diane for him to look after and take custody over
Mary.

During the pendency of the case, Mary went with Evelyn to a university in Boston. A professor challenged the
mind of Mary and was later astonished and was impressed after Mary discovered the solution of the said
problem. When Mary returned to Tampa, Florida, she told Frank that she likes Evelyn because she looks like
her mother, Diane, but she then added that she doesn’t want to live with her. She stated that Evelyn was bossy.

As part of the custody battle, Mary was interviewed by ​a psychiatrist​. In their session, they talked about the life
Mary was experiencing in their neighborhood. Mary shared how she and Frank bonds, like during Saturday
nights, they watch the UFC and sometimes she playfully attacks Frank. Mary also said Frank is a good person
because he wanted her before everyone knew she was gifted. The grandmother’s camp further attacked Frank
by disclosing to the court that he got arrested once for assault and spent the night in jail. And pursuant to his
being a freelancer, he had no health insurance to take care of him let alone of Mary.
Conclusion (Liyan)

The custody of the child should be given to the parents

Ruling and Application (Andre and Nina)

Arguments:

Discuss that the child custody should be awarded to the

person who can give her best interest? (Joann Marie Brenda
de la Gente)

Source: Find Law's team of legal writers and editors

(​https://family.findlaw.com/child-custody/focusing-on-the-best-interests-of-the-child.html​)

“Best Interests of the Child” is manifested through the means of fostering and encouraging the child's
happiness, security, mental health, and emotional development into young adulthood. In any custody conflict
it's crucial that you not lose sight of the importance of making decisions in the best interests of the children. The
best interests standard can be hard to define in some situations, however in our analysis there seem to be some
common factors between custody cases such as the following:

1) The wishes of the child (if old enough to capably express ​a reasonable preference)​. In the movie
“Gifted”, the child subject of the custody case prefers her uncle rather than her grandmother because the child
felt that her grandmother is bossy whereas her uncle understands her. In the case of Perez vs CA, the Supreme
Court in awarding the custody of the child to the mother than the father emphasised that “it has long been
settled that in custody cases, the foremost consideration is always the welfare and best interest of the child. In
fact, no less than an international instrument, the Convention on the Rights of the Child provides: "In all actions
concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
(Article 3, number 1, CONVENTION ON THE RIGHTS OF THE CHILD, Adopted by the General Assembly
of the United Nations on November 20, 1989).

In the case of Beckett vs Judge Sarmiento, the Judge awarded the custody of the child to the mother
despite the financial affluence of the father over the mother and the prior compromise agreement because the
child was not happy with the father. Accordingly, this was commended by the Supreme Court in saying that
“the more appropriate description of the legal situation engendered by the March 15, 2011 Order issued amidst
the persistent plea of the child not to be returned to his father, is that respondent judge exhibited fidelity to
jurisprudential command to accord primacy to the welfare and interest of a minor child”.

2.) Any special needs a child may have and how each parent takes care of those needs ​and adjustments to
school and community​. The uncle knows that the child is smart enough to be homeschooled but he understood
that the child needs to learn how to interact with people, and the best way to do that is to send her to school. The
child learned to make friends instead of being cooped up inside their home. In the case of RENALYN A.
MASBATE AND SPOUSES RENATO MASBATE AND MARLYN MASBATE, Petitioners, v. RICKY
JAMES RELUCIO, Respondent. G.R. No. 235498, July 30, 2018 A.M. No. 03-04-04-SC, the Supreme Court
explicitly states that:

"[i]n awarding custody, the court shall consider the best interests of the minor and shall give paramount
consideration to [her] material and moral welfare. The best interests of the minor refer to the totality of the
circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the
minor encouraging to [her] physical, psychological and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and development of the minor."

​3. Religious and/or cultural considerations

The uncle teaches values to the child but never imposes his own beliefs upon her. This was evidenced by
how he answered the Child’s question if there was a God, the child learned never to disrespect elders even if
they sometimes make mistakes (through the problem given to her at MIT) and she also learned to help someone
out if one is being bullied (and he emphasized that violence is wrong).

The custody of the child should be awarded to the uncle because his utmost concern is to love and
nurture the child rather than to exploit her “gifted” ability unlike her ​grandmother who is kind of stoic, bossy
and she (grandmother) is too preoccupied in the academic side of the child to the point that she failed to teach
the child some religious and moral values.

4​ . Parental use of excessive discipline or emotional abuse. The fact that the grandmother Evelyn
Adler admitted in open court that her relationship with her daughter goes beyond “mother and daughter”
relationship only proves that the grandmother herself does not deserve to be called a “mother” to her daughter at
all because ​she treated her like a machine who needs to focus on Math ​to prove her thesis or theory and
become famous rather than having a work life balance to attain a state of equilibrium and make professional and
social life equal. To add insult to the injury, Evelyn Adler’s action in compelling her grandchild to read
advanced mathematical books, and isolating the latter from her uncle and friends to solve advanced
mathematical problems, deprives the child of her freedom to do what she wants and her freedom to become a
child and play with her friends. Taking the child away from her uncle and putting her in an adaptive family, as
well as disposing her beloved pet caused the child substantial distress. This only shows that the grandmother
Evelyn Adler is not fit to take and raise Mary Adler under her custody. The best interests of children shall be the
paramount consideration in all actions concerning them, therefore the court should not award the Mary to
Evelyn, rather give Mary to her uncle for it is for her best interest. Section 5 (e) and (h) of RA No. 9262
provides that compelling the woman or her child to engage in a conduct and or restricting the woman’s or her
child’s freedom of movement, as well as engaging in a conduct that alarms or causes substantial emotional or
psychological distress to the woman or her child, is punishable by law under such Act.

Courts take a more holistic approach rather than looking in just one factor. Their best interests
determinations are generally made after considering a number of factors related to the child's circumstances and
in the case at bar, the uncle’s capacity to parent, considering his unconditional love and concern with regards to
the child's ultimate welfare, best interest and happiness compared to the grandmother is unquestionable.
Therefore, the uncle should be awarded with the custody of the child.

What Factors Determine the Child's Best Interests? 

Although the best interests standard can be hard to define in some situations, there are some 
common factors that are part of this analysis in most custody situations, such as the following: 

● The wishes of the child (if old enough to capably express a reasonable preference); 
● The mental and physical health of the parents; 
● Any special needs a child may have and how each parent takes care of those needs; 
● Religious and/or cultural considerations; 
● The need for continuation of stable home environment; 
● Other children whose custody is relevant to this child's custody arrangement; 
● Support and opportunity for interaction with members of the extended family of either parent 
(such as​ ​grandparents​); 
● Interactions and interrelationships with other members of household; 
● Adjustments to school and community; 
● The age and sex of the child; 
● Whether there is a pattern of​ ​domestic violence​ in the home; 
● Parental use of excessive discipline or emotional abuse; and 
 ● Evidence of parental drug, alcohol or​ c
​ hild/sex abuse​. 

Remember, courts don't just look at one factor, but instead take a more holistic approach. Their best 
interests determinations are generally made after considering a number of factors related to the 
child's circumstances and the parent or caregiver's circumstances and capacity to parent, with the 
child's ultimate safety and happiness being the paramount concern.

What is the paramount interest of the child?

According to ​RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS (A.M. No. 03-04-04-SC), in awarding custody, the court shall consider
the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best
interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival,
protection, and feelings of security of the minor encouraging to his physical, psychological and emotional
development. It also means the least detrimental available alternative for safeguarding the growth and development
of the minor.

Application (based on the film)

Gab
In the case at bar, it was evident that the uncle is able to provide not only necessary material things for Mary but
was also able to develop her moral welfare. The uncle’s influence and upbringing enabled Mary to become a normal
person. Although initially Mary was kind of a hard pill, the uncle’s guidance softened her up and Mary was able to
make a friend by complimenting one of the student’s work. She was also able to show care to others, especially with
her cat Fred. Mary is this amazing, sweet, and smart human being and that just shows how the uncle is raising her
well. At the time when Mary was so upset about her father not wanting to find her, the Uncle was able to handle the
situation calmly and showed Mary what was more important, and those are the people who are with you not the
ones who you want but doesn’t want you back.

This is the kind of upbringing is what the child deserves according to the rule above. Unlike if
Mary was with the grandmother, her mathematics skill was the only priority, which she also did
when raising Mary’s mother. Yes, the grandmother might be able to provide for everything for the
child but it was evident that the lack of moral upbringing, psychological and emotional
development lead to the mother’s unhappiness, depression and anger which then resulted to her
suicide.
J A N C O N T A D O

On the subject of the child’s custody, under compelling reasons and justifiable circumstances, the
court may hand over the custody of the child not just to the nearest kin or order of the list of family
authorized by law but even to strangers. This becomes possible when the well-being, best interest,
and the welfare of the child is at test.

The court, in some cases, awarded custody of a child to strangers who are not specifically a relative
by blood for a fact that it is for the best-interest of the child and for the betterment of his/her well-being
as a person.

With these decided cases, it can be inferred that there is no reason not to award the custody of Mary
to his uncle who is not so wealthy but is able to provide for a life that a child deserves and an
environment that a child is entitled to have.

Mary since she was an infant, grew up with his uncle, Frank. To witness Mary grow up and reach at
the age of seven (7) can be presumed that the uncle was able to provide for milk, diapers, and other
basic needs of a baby. The uncle was able to provide for food and shelter for Mary until the present
time. He was able to provide for Mary’s primary education, getting her ready to go to her first day of
school.

The uncle was able to give the parental care needed by the child for her happiness such as love and
affection.

Mary does not want to go to school, because she thinks the children of her age are stupid. Instead,
the uncle eventually sent him with the sole purpose of not just being a student but as being a kid. He
wanted Mary to have friends and experience such happiness endowed to a child of her age. On the
matter of love, the uncle was selfless enough that he only care about Mary’s well-being as a child and
as a person when she grows up. He knows of Mary’s capability being a Math prodigy, but he did not
take advantage of the extraordinary capabilities his niece have. On the contrary, he insists on Mary
having a normal life who plays outside and able to respect not just the person she is close to but all
people she is surrounded by.
On the probability that Mary could be better off in the custody of others because of richness, such is
not a priority. The person of wealth who also have responsibility to Mary, may provide for support
and have a visitorial right despite having no custody. Exercising custody does not necessarily
involves excessive wealth as the source to raise the child well off, custody entails with it the kind of
environment a child is ought to live in and the kind of people he/she is with.

In the case at bar, the uncle does not deprive Mary of the things that she is supposed to learn and
supposed to gain. He may have not given Mary of the things that she wanted, but he is able to
provide her with the basic things she needs to survive. Moreover, in the custody of the uncle, Mary is
able to experience all the love, affection, and happiness, not just coming from her uncle, but her
neighbor, her teacher, her classmates, and her friends not living in isolation or distant to them.

Education being an important matter of custody, Mary is a genius child who was able to obtain a
college scholarship at the age of seven (7). Thus, it presupposes of Mary being able to attain to his
study notwithstanding the issue of money because there are also people involved who are obliged by
law to support her. Additionally, it does not also deny the fact that Mary can possibly be a known
Math Genius of the world even if she is in the arms of his uncle.

----- END ---

The child should be awarded to the uncle as it is for her best interest.

Why is it for her best interest?

1. The uncle is able to give the child her basic needs such as shelter, clothing and education.
2. The uncle is able to give the parental care needed by the child for her happiness such as love and
affection.
3. The child wants to be under the custody of her uncle whom she has known since birth rather than a
grandmother she just recently met.

Dian

Source: Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil. 554)

"Whether a child should stay permanently with a kindly stranger or with his own mother, is not to be determined
alone by considerations of affluence or poverty. Poor youths who had to work their way thru school and
college, have, not infrequently, scaled the heights of success, as easily and swiftly as their more favored
companions, and done so with more, inner satisfaction, and credit to themselves and their humble parents."

"Whether a child should stay permanently with a kindly stranger or with his own mother, is not to be determined
alone by considerations of affluence or poverty.

Reason: The Uncle had no permanent job and only does freelance repair of boats. He doesn’t have insurance
and so is the child. However he made sure that he provided all the basic need that the child should get, food,
shelter, clothing, education, even love and nurturing. Whether the child should stay with him or with the
grandmother, it should not be determined alone by considerations of affluence or poverty. The more important
thing to consider is who could provide the better environment for the child so she could go, grow and glow.

Source: Luna vs IAC, GR L-68374

Article 363 of the Civil Code provides that in all questions relating to the care, custody, education and property
of the children, the latter's welfare is paramount. This means that the best interest of the minor can override
procedural rules and even the rights of parents to the custody of their children. Since, in this case, the very life
and existence of the minor is at stake and the child is in an age when she can exercise an intelligent choice,
the courts can do no less than respect, enforce and give meaning and substance to that choice and uphold her
right to live in an atmosphere conducive to her physical, moral and intellectual development.

To return her to the custody of the private respondents to face the same emotional environment which she is
now complaining of would be indeed traumatic and cause irreparable damage to the child. As requested by
her, let us not destroy her future.

Article 363 of the Civil Code provides that in all questions relating to the care, custody, education and property
of the children, the latter's welfare is paramount.

Reason: In some cases, the court granted custody even to a stranger if it finds that the child’s welfare is better
protected and nourished under the care of the stranger compared if given to parents or other person next in
line in accordance with the law. In this case, the uncle is not even a stranger but a relative of consanguinity
within 3rd degree. The welfare of the child is better protected under him because

1. The Uncle is the choice of the child. At some point, the child even told the uncle that she wants to stay
with him and not with the grandmother because she is bossy.

2. The child can learn and play just like a normal kid when she is living under his custody. He made sure
that the child goes outside to play after studying hard. He made sure that the child understand the balance
of working hard and having time for leisurely activities

3. He understands what the child needs. The child is very smart enough to be homeschooled but he
understood that a child needs to learn how to interact with people, and the best way to do that is to send
her to school. The child learned to make friends instead of being cooped up inside their home.

4. He provides the basic needs, food, shelter, clothing, and even time, love, care and guidance. They have
a lovely home at (asa gali to?)

5. He teaches values to the child but never imposes his own beliefs upon her. This was evidenced by how
he answered the Child’s question if there was a God, the child learned never to disrespect elders even if they
sometimes make mistakes (through the problem given to her at MIT) and she also learned to help someone
out if one is being bullied (and he emphasized that violence is wrong).
Source: (Beckett v Judge Olegario Sarmiento, A.M. No. RTJ-12-2326, January 30, 2013)

Argument: The custody of the child should be awarded to the uncle because his utmost concern is to love and
nurture the child rather than to exploit her “gifted” ability.

In Beckett v Judge Sarmiento, the Judge awarded the custody of the child to the mother despite the financial
affluence of the father over the mother and the prior compromise agreement because the child was not happy
with the father. Accordingly, this was commended by the Supreme Court in saying that “the more appropriate
description of the legal situation engendered by the March 15, 2011 Order issued amidst the persistent plea of
the child not to be returned to his father, is that respondent judge exhibited fidelity to jurisprudential command
to accord primacy to the welfare and interest of a minor child”.

Source: (Perez v CA ​G.R. No. 118870, March 29, 1996, 255 SCRA 661)

In Perez v CA, the Supreme Court in awarding the custody of the child to the mother than the father
emphasised that “it has long been settled that in custody cases, the foremost consideration is always the
welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the
Rights of the Child provides: "In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child
shall be a primary consideration." (Article 3, number 1, CONVENTION ON THE RIGHTS OF THE CHILD,
Adopted by the General Assembly of the United Nations on November 20, 1989)

1. Under present rules, ​Source: ​RENALYN A. MASBATE AND SPOUSES RENATO MASBATE AND MARLYN

MASBATE​, ​Petitioners​, ​v. ​RICKY JAMES RELUCIO​, ​Respondent.​ ​G.R. No. 235498, July 30, 2018 ​A.M. No.
03-04-04-SC explicitly states that:
"[i]n awarding custody, the court shall consider the ​best interests of the minor and shall give
paramount consideration to [her] ​material and moral welfare. ​The best interests of the minor
refer to the totality of the circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the minor encouraging to [her] physical,
psychological and emotional development. It also means the least detrimental available
alternative for safeguarding the growth and development of the minor.​"

- In the case at bar, the uncle was able to provide all the things necessary for Mary’s interest,
not just the material needs but also the moral welfare. The uncle was able to influence and teach
Mary about morals and how to deal with other people. She was able to care for other people like
one of her classmates where she complimented his work. Also, when Mary was sad when she
 knew that her father didn’t even look for her, the Uncle was able to show her what was more
important. This is the kind of upbringing is what the child deserves according to the rule above.
Unlike if Mary was with the grandmother, her mathematics skill was the only priority, which she
also did when raising Mary’s mother. Yes, the grandmother might be able to provide for
everything for the child but it was evident that the lack of moral upbringing, psychological and
emotional development lead to the mother’s unhappiness, depression and anger which then
resulted to her suicide.

When the custody of the child is in question, the law does not shortfall in enumerating a list of persons legally
authorized to exercise parental authority of the unemancipated child. The general rule is to follow the sequence
or provided for by law, but these enumerated list and or sequence may be outweighed when the best interest
of the child enters the picture. ​(Jan Contado’s comment)

Cabangbang couple are not related by consanguinity or affinity to the child

The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the
lower court from awarding her custody to them. Indeed, the law provides that in certain cases the
custody of a child may be awarded even to strangers, as against either the father or the mother or
against both. Thus, in proceedings involving a child whose parents are separated — either legally or
de facto — and where it appears that both parents are improper persons to whom to entrust the care,
custody and control of the child, "the court may either designate the paternal or maternal grandparent
of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of
such child, or commit it to and suitable asylum, children's home, or benevolent society

Jhunalie

International Law (UK)

Source: http://www.legislation.gov.uk/ukpga/1989/41/data.pdf

Law: ​Children Act of 1989 s 1(3):

Similar to our Philippines laws concerning the custody of a child, United Kingdom’s Children Act of
1989 also provides that the child's welfare is the court's paramount consideration. In addition to the
paramount interest of the child, a ‘welfare checklist’ can be found in the Sec 1(3) of the sameAct. This
refers to the list of important factors that the court ought to have particular regard when making
decisions for a child.

Sec 1(3)(a) provides that the ascertainable wishes and feelings of the child concerned shall be
considered. If a child is of a young age, his or her wishes may not have had a lot of weight. But in the
film, even though the child is just seven years old, her level of understanding and maturity is far
beyond that of an average seven year old. It is apparent that the child wanted to be with his uncle and
not with her grandmother. Thus, the child’s wish to be with his uncle shall be given weight.

Sec 1(3)(c) provides that the likely effect on the child of the change in circumstances shall be
considered. This is a very important factor. If the court were to decide in favor of the grandmother,
consequently live with her in Massachusetts, it will most likely have a negative effect on the child
because the child has only ever known growing up with her uncle in a certain environment.

Sec 1(3)(e) provides that the harm which the child has suffered or is at risk of suffering is also a
factor. Neither the uncle nor the grandmother appear to put the child at risk of physical harm. The
child however may experience emotional harm if she were to be put to her grandmother’s care. The
grandmother believed that Mary is a "one-in-a-billion" mathematical prodigy who should be specially
tutored in preparation for a life devoted to mathematics, much as her mother was. If Mary would
devote her life to mathematics like her mother did and not have a childhood she deserves, she might
end up just like her mother. Thus, the kind of life her grandmother wanted her to have may raise a
risk to an emotional harm on Mary.

One of the factors that must be considered according to Sec 1(3)(f) is the capability of the child’s
parents, and any other person in relation to whom the court considers the question to be relevant is
meeting the needs of the child, and it is the uncle in this case. The uncle took care and supported the
child who was then an infant and he has been supporting her until now that she is already seven
years old. The fact that the uncle has a stable and paying job should be enough evidence as to his
capability to meet the child’s needs.

Although it is established that international laws and jurisprudence are not binding in Philippine
courts, they have persuasive effect and/or degree of persuasiveness.
Reason: In the comparison between the uncle and grandmother of Mary’s capability to provide for her basic needs,
both can provide. While both of them are entitled to have custody of Mary, It is clear that the grandmother is in order
first to have the custody of Mary.

The law provides that substitute parental authority is handed to; 1.) grandparents 2) oldest brother or sister, over
twenty-one years of age 3.) Child’s actual custodian.

While the law provides for the order of person authorized by law to have custody, but the law gives much credits as
to who can best provide for the best interest and well-being of the child. With that, It is clearly shown in the movie
that the uncle’s pure intention for Mary’s well-being is more acceptable over the grandmother.

Moreover, Mary has been in the custody of his uncle for the past 7 years and her grandmother only showed up by
the time she discovered of Mary’s ability as math prodigy.

The uncle of Mary has been taking care of her since she was still an infant and his only intention was for Mary to
grow up as a normal child and not to live in isolation thinking that the child of her age are mostly stupid. He wants
Mary to be a child of her age to learn how to mingle with people, have friends, and enjoy her childhood aiming that
she would not be like her mother whose life have revolved on Math equations and problem solving.

While it could be argued that the grandmother can best provide for the education and basic needs of Mary, but the
Uncle also have the capability to do so. He was once a teacher before Mary was born and He can do so again if he
intends to. In the case of education, Mary has been offered of a Scholarship that would best serve to provide her for
quality education matching her extraordinary capabilities without the financial help of the grandmother.

It is further shown that the only intention of the grandmother for Mary is to have her become one of the popularly
known geniuses of Math in the world, It does not deny the fact that Mary can do so in the arms of her uncle.

The sole difference of the grandmother and the uncle is that the uncle does not deprive of Mary to what she wants in
life, instead he also wants Mary to grow up as a normal person not ignorant of her surroundings, to care for other
people, and be a child as she is only seven years old. On the case of the grandmother, she only showed up upon
the discovery of Mary’s ability not showing any affection to the child when she was still an infant. If she intends to
keep Mary in custody for her best interest and welfare, she could have done so when Mary was still a baby and
clueless of her capability.

Hence, both of them showed competence to have custody of Mary, but the person whose end is upon the best
interest of the child is favored by the law and it is the uncle.

Source: The Civil Code of the Philippines

Article 213 states that, “In case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of
age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”
 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.

Reason: The reason for the age of 7 is probably because the law believes that is an age where a child could
already intelligently decide for his choices, especially with the choice of which parent or guardian suits her
interests the best, which guardian loves her more or which guardian she is more comfortable living with.
The child is 6 and a half years old in the middle of the custody battle. But since the child is gifted, she is
way smarter than the average 6 year old child. And besides, the age is just months shy to attaining the
required age where her opinion and choice matters to the court. If the reason is that 7 years is an age where
one can intelligently choose then the child already attained that even at the age of 6 because she is very
intelligent even more intelligent than the average adults.

Argument

What are the compelling reasons that the child custody would not be awarded to the child. ​(Search
jurisprudence with regards to the meaning of compelling reason and unfit;Matuan, Salor, Mario)

1.

2.The Grandmother reneged good faith and disregarded the wisdom of the decision of the court when
she actively sought to skirt around the technicalities of the custody grant of the new guardians. She
maintained close and proximal relations with the child and even went as far as commissioned tutors
for Mary to finish her life’s obsession of solving a Millenium problem.

Therefore, justice cannot be accorded to those who come to court with unclean hands. In this case,
the grandmother’s petition should be denied.

Application (ARES, FAITH C)

We believed that the uncle must have the custody of the child because the grandmother is
unfit to be the parent due to some ​compelling reasons or unfit grandmother to care for the
child:
 2. The Child stated that she likes the grandmother but she doesn't want to live with her
because she is bossy.
3. The Grandmother prioritizes her "own best interest", disregarding the child's "paramount
interest" as shown, she pressured the child to solve mathematical equations.
4. The Grandmother deprived the child's emotional and physical care because other than
letting the child play and enjoy her childhood, she rather gave materials to the child to
exhibit the mathematical equation.
5. When the mother of the child was known pregnant, the Grandmother neglected her and
never acknowledge the child because it was the hindrance of solving the mathematical
problem.

When the custody of a child is in question, it is always the paramount and best interest of the child
that will always prevail. With regards to the custody of the child in the case at bar, the grandmother
and uncle of the child are fighting for its custody over the child. Thus, it is clear that the Grandmother
is unfit due to the aforementioned grounds because aside from she deprived the child of its emotional
and physical care, didn't acknowledge the child when the child was still inside the womb of the
mother, the Child then clearly stated that "she doesn't want to live together with her Grandmother
because she's bossy." Hence, provided the given statement, it is clear that the girl wants to live with
her uncle and she can choose where she want to live with since under the Civil Code, if the child is 7
years old and above, she can choose where she would gladly live.

Moreover, to justify our grounds against the unfitness of having the child's custody to the
Grandmother, ​citing Unson III v. Navarro, it explained that “in all controversies regarding the custody
of minors, the sole and foremost consideration is the physical, education, social and moral welfare of
the child concerned, taking into account the respective resources and social and moral situations of
the contending parents.”

Source: ​Espiritu v. Court of Appeals, G.R. No. 115640, 15 March 1995, J. Melo).

A Filipino couple, both working in the United States (US), met and fell in love. After three (3) years of
living together and having a daughter, they got married. A few months later, the wife gave birth to
their second child, but their relationship began to deteriorate. The wife claimed that her husband
nagged her too much about money matters while he claimed she was a “spendthrift, buying
expensive jewelry and antique furniture instead of attending to household expenses.”

Eventually, the relationship turned sour and the wife moved to a different state, leaving her husband
and children behind. The husband moved back to the Philippines. Due to the demands of his work,
however, he was forced to live in the US once again, so he left his children with his sister. It was only
two years later that the mother of the children went to the Philippines to gain custody over her
children.

The Regional Trial Court (RTC) gave the father sole parental authority and suspended the mother’s
parental authority over her children. Visitation rights were to be agreed upon by the parties and
approved by the RTC. The Court of Appeals reversed the trial court’s decision and granted custody to
the mother and visitation rights to the father on weekends premised on the tender years doctrine,
which provides that “no mother shall be separated from her child under seven years of age, unless
the court finds compelling reasons for such measure.”

The Supreme Court (SC) sustained the findings and conclusions of the RTC, reiterating that
the paramount criterion for granting parental authority is the best interest of the child and not the
tender years doctrine –

…[the RTC] gave greater attention to the choice of Rosalind (the daughter) and considered in
detail all the relevant factors bearing on the issue of custody… 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.

The SC further explained the rules in ascertaining the child’s best interest –

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

Lastly, the Court observed that the children’s age and their choice of parent should have been taken
into consideration when assessing the chil​drens best interest –

(Application: ARES, FAITH C)

Furthermore, pursuance to the case at hand, not only the child over seven years old and her
clear choice of choosing the uncle but the fact that deprivation of the best interest of the child by
the Grandmother is best shown in the case, not just towards the child but even towards the
deceased mother of the child, as testified by the uncle, which was the uncle of the decreased
mother of the child. And the effect on the child when custody was given to the foster parent which
was later shown that it was just her grandmother behind closed doors, it has caused the child to
emotional disturbances, personality conflicts, and deprivation of emotional care and love.
 Source: The Civil Code of the Philippines

Article 213 states that, “In case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of
age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”

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.

Reason: The reason for the age of 7 is probably because the law believes that is an age where a child could
already intelligently decide for his choices, especially with the choice of which parent or guardian suits her
interests the best, which guardian loves her more or which guardian she is more comfortable living with.
The child is 6 and a half years old in the middle of the custody battle. But since the child is gifted, she is
way smarter than the average 6 year old child. And besides, the age is just months shy to attaining the
required age where her opinion and choice matters to the court. If the reason is that 7 years is an age where
one can intelligently choose then the child already attained that even at the age of 6 because she is very
intelligent even more intelligent than the average adults.

Joann Marie Brenda de la Gente

Source: S12G0452 ERTTER et al. vs DUNBAR decided by the Supreme Court of Georgia

In June 2010, the Superior Court of Cobb County found that it was ​in the child’s best interests that the
permanent custody of the child be given to the Ertters, the aunt and uncle of the child after the death of the
child’s mother instead of awarding the permanent custody to the maternal grandmother Denise Dunbar.

​Best interests or the best interests of the child is ​a child rights principle​, which derives from ​Article 3 of
the United Nations Convention on the ​Rights of the Child​, which says that ​“in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration”. ​It is a generally accepted principle of International Law which is a part of the Law of the Land
that we must adhere to.

​Reason:

In the movie entitled “Gifted” , when the psychologist asked the child why she wants to stay with her
uncle, she replied that she wants to stay with him because he wanted her even before she became gifted. This
means that his love for her is unconditional compared to her grandmother who she considers too bossy. This
only shows that she is comfortable and happy in the custody of her uncle compared to her grandmother. The
happiness of the child is what matters most and should be the paramount consideration in the case at bar.

Data

Source: (Perez v CA ​G.R. No. 118870, March 29, 1996, 255 SCRA 661)

Argument: The custody of the child should be awarded to the uncle because his utmost concern is to love and
nurture the child rather than to exploit her “gifted” ability.

Courts invariably look into all relevant factors presented by the contending parents, such as their material
resources, social and moral situations. ​(Unson III v . Navarro, supra.; Espiritu v. CA, ibid.; David v . CA, G.R.
No. 111180, November 16, 1995)

​Kristine Salor

ART 222 OF THE FAMILY CODE PROVIDES ; “THE COURTS MAY APPOINT A GUARDIAN OF THE
CHILD’S PROPERTY OR A GUARDIAN AD LITEM WHEN THE BEST INTEREST OF THE CHILD SO
INQUIRE

G.R. No. 174485 July 11, 2007

AGNES GAMBOA-HIRSCH Petitioner,

vs.

HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH, Respondents

“The Convention on the Rights of the Child provides that "in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration (emphasis supplied)." The Child and
Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care and
custody, among others, of the child, his/her welfare shall be the paramount consideration.”

Reason:

(already stated in the previous reasons)

Main point: THE CHILD’S BEST INTEREST SHALL BE THE PARAMOUNT CONSIDERATION.
CONTADO

When the custody of the child is in question, the law does not shortfall in enumerating a list of persons legally
authorized to exercise parental authority of the unemancipated child. The general rule is to follow the sequence
or provided for by law, but these enumerated list and or sequence may be outweighed when the best interest
of the child enters the picture.

Case: Johanna Sombong vs. Court of Appeals (GR NO. 111876 / January 1, 1996)

Ruling of the Supreme Court:

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.

Reason: In the comparison between the uncle and grandmother of Mary’s capability to provide for her basic needs,
both can provide. While both of them are entitled to have custody of Mary, It is clear that the grandmother is in order
first to have the custody of Mary.

The law provides that substitute parental authority is handed to; 1.) grandparents 2) oldest brother or sister, over
twenty-one years of age 3.) Child’s actual custodian.

While the law provides for the order of person authorized by law to have custody, but the law gives much credits as
to who can best provide for the best interest and well-being of the child. With that, It is clearly shown in the movie
that the uncle’s pure intention for Mary’s well-being is more acceptable over the grandmother.

Moreover, Mary has been in the custody of his uncle for the past 7 years and her grandmother only showed up by
the time she discovered of Mary’s ability as math prodigy.

The uncle of Mary has been taking care of her since she was still an infant and his only intention was for Mary to
grow up as a normal child and not to live in isolation thinking that the child of her age are mostly stupid. He wants
Mary to be a child of her age to learn how to mingle with people, have friends, and enjoy her childhood aiming that
she would not be like her mother whose life have revolved on Math equations and problem solving.

While it could be argued that the grandmother can best provide for the education and basic needs of Mary, but the
Uncle also have the capability to do so. He was once a teacher before Mary was born and He can do so again if he
intends to. In the case of education, Mary has been offered of a Scholarship that would best serve to provide her for
quality education matching her extraordinary capabilities without the financial help of the grandmother.

It is further shown that the only intention of the grandmother for Mary is to have her become one of the popularly
known geniuses of Math in the world, It does not deny the fact that Mary can do so in the arms of her uncle.

The sole difference of the grandmother and the uncle is that the uncle does not deprive of Mary to what she wants in
life, instead he also wants Mary to grow up as a normal person not ignorant of her surroundings, to care for other
people, and be a child as she is only seven years old. On the case of the grandmother, she only showed up upon
the discovery of Mary’s ability not showing any affection to the child when she was still an infant. If she intends to
keep Mary in custody for her best interest and welfare, she could have done so when Mary was still a baby and
clueless of her capability.

Hence, both of them showed competence to have custody of Mary, but the person whose end is upon the best
interest of the child is favored by the law and it is the uncle.

Luzon

2. Father of illegitimate child has no custody:

“pursuant to the second paragraph of Article 213 of the Family Code, Ricky James (FATHER)
would still not acquire custody over their daughter because there is no provision of law granting
custody rights to an illegitimate father.”

- Thus the Father’s appointment of the grandmother in the movie was immaterial for he has
no custody.

ORIGENES, CHRISTINE ANN O.

(P.S. these are persuasive at best, just to help build foundation for the case of the Uncle)

Source: ​Established legal dictum recognized in multiple cases in Philippine jurisprudence.

As established in the case of ​Muller v. Muller, G.R. No. 149615, August 29, 2006:

“​a litigant may be denied relief by a court of equity on the ground that his conduct has
been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in
issue.​ "

Parties who do not come to court with clean hands cannot be allowed to profit from their own
wrongdoing. ​People v. Punto, 68 Phil. 481, 482 (1939)

Legal Proposition: ​Doctrine of Unclean Hands - legal doctrine which is a defense to a

complaint, which states that a party who is asking for a judgment cannot have the help of the
court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a
defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or
the plaintiff will be denied judgment.
 Argument:

1. The Grandmother had the father of the child falsify testimony in court, thus coming
to court with unclean hands.

HBCastilla

IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG"
FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA, ​petitioner-appellant,

vs.

MR. & MRS. BARTOLOME CABANGBANG ET AL., ​respondents-appellees.

GR No. L-23253

March 28, 1969

Facts:

§ ​Pacita Chua worked in nightclubs as a hostess. She first lived with a certain Chua Ben in 1950 by
whom she had a child who died in infancy

§ ​Afterwards, she cohabited with Sy Sia Ly by whom she had two children named Robert and ​Betty
Chua Sy

§​ ​Betty Chua Sy was born on December 15, 1957

§​ ​Sy Lia Ly and Pacita Chua separated shortly after the birth of Betty

§​ ​Pacita Chua met and became the mistress of Victor Tan Villareal

§ ​Another child, a girl, was born to her in 1960 whom she gave away to a comadre in Cebu when she
could no longer support the said child

§ ​Bartolome Cabangbang and his wife acquired the custody of the Betty Chua Sy who was then
barely four months old and christened her as ​Grace Cabangbang​ on September 12, 1958

§ ​As to how the Cabangbang couple acquired custody of Betty Chua Sy, there is some testimonial
conflict
§​ ​Pacita Chua’s version:

1. In October 1958, while she and Villareal were still living together, Villareal took Betty Chua Sy
away and gave her to the Cabangbangs, allegedly in recompense for favors received

2. She knew of the whereabouts of Betty Chua Sy only in 1960, who was then about three years old,
was brought to her by Villareal

3. Villareal shortly returned Betty Chua Sy to the Cabangbangs thru threats, intimidiation, fraud and
deceit

§​ ​Cabangbang couple’s version

1. Mrs. Cabangbang found Betty Chua Sy, wrapped in a bundle, at the gate of their residence

2. That she reared her as her own and grew very fond of her

3. Nobody ever molested them until the child was 5-1/2 years of age

§ ​At all events, it is the lower court's finding that the child was given to the Cabangbang spouses by
Villareal with the knowledge and consent of Pacita Chua

§ ​By letter dated June 6, 1963, Pacita Chua demanded the surrender to her of the custody of the
Betty Chua Sy

§ ​Lower court ruled on May 21, 1964, that it will be for the welfare of the child Betty Chua Sy aka
Grace Cabangbang to be under the custody of the Cabangbangs. Betty Chua Sy is 5 yo at this time
(1964-1957)

§​ ​Petitioner, on her appeal, tenders two issues

1. That the lower court erred when it awarded the custody of Betty Chua Sy, ​who is less than 7
years old​, in favor of the Cabangbangs

2. That the lower court illegally deprived petitioner of parental authority over Betty Chua Sy

Issue

Whether or not, custody of Betty Chua Sy should be given to the Pacita Chua, the mother

Ruling
Article 363 of the Civil Code mandates that the child cannot be separated from her mother who
is under less than seven years of age

This issue is now moot and academic because Betty Chua Sy, having been born on December 15,
1957, is now 11 years of age

Parental Authority may only be terminated on the grounds for termination, loss, suspension or
deprivation of parental authority provided in Article 332 (​ presently Article 228, 229, 230, 231,
​ f Civil Code
232) o

Grounds for termination of parental authority:

1. Death of the parents

2. Death of the child

3. Emancipation of the child (can be renounced or transferred)

4. Subjecting the child or allowing him to be subjected to sexual abuse

Grounds for suspension, termination until subsequent revival by a final judgment

1. Adoption of the child (can be renounced or transferred)

2. Appointment of a general guardian (can be renounced or transferred)

3. Judicial declaration of abandonment of the child

4. Final judgment of a competent court divesting the party concerned of parental authority

5. Judicial declaration of absence or incapacity of the persons exercising parental authority

6. Conviction of a crime with penalty of civil interdiction

7. Treatment of the child with excessive harshness, giving of child corrupting orders, compelling the
child to beg and subjecting the child or allowing the child to be subjected to acts of lasciviousness
The petitioner correctly argues, however, that the reasons relied upon by the lower court — i.e.,
"petitioner is not exactly an upright woman" and "it will be for the welfare of the child" — are not
strictly speaking, proper grounds in law to deprive a mother of her inherent right to parental authority
over her child.

And there are indeed valid reasons, as will presently be expounded, for depriving the petitioner of
parental authority over the minor Betty Chua Sy or Grace Cabangbang.

It is the lower court’s finding that the child was given to the Cabangbangs by Villareal with the
knowledge and consent of the petitioner, Pacita Chua

In support of this finding, it cited the facts that the petitioner did not at all — not ever — report to the
authorities the alleged disappearance of her daughter, and had not taken any step to see the child
when she allegedly discovered that she was in the custody of the Cabangbangs. It discounted the
petitioner's claim that she did not make any move to recover the child because the Cabangbangs are
powerful and influential.

Abandonment is one of the grounds for depriving parents of parental authority over their
children

Presently, under Article 229, abandonment needs to be judicially declared from a case filed for this
purpose. The effect is also termination unless subsequently revived by a final judgment

Supreme Court discounted Pacita Chua’s claim that she did not take any step to recover her child
because the Cabangbangs were powerful and influential.

A mother who really loves her child would go to any extent to be reunited with her. The natural and
normal reaction of the petitioner — once informed, as she alleged, and her child was in the custody of
the Cabangbangs — should have been to move heaven and earth, to use a worn-out but still
respectable cliche, in order to recover her. Yet she lifted not a finger.
1. She just wants the child back so that Sy Sia Ly, the alleged father, would resume providing the
petitioner support

2. She desires to recover the child to embarrass Villareal who retrieved the jeep he gave her and
altogether stopped living with and supporting her

3. She is willing to have the child remain with the Cabangbangs provided the latter would give her a
jeep and some money

The petitioner's inconsistent demands in the course of the proceedings below, reveal that her motives
do not flow from the wellsprings of a loving mother's heart. Upon the contrary, they are unmistakably
selfish — nay, mercenary. She needs the child as a leverage to obtain concessions — financial and
otherwise — either from the alleged father or the Cabangbangs.

And for five long years ​(of abandonment) ​thereafter she did not once move to recover the child. She
continuously shunned the natural and legal obligations which she owed to the child; completely
withheld her presence, her love, her care, and the opportunity to display maternal affection; and
totally denied her support and maintenance. Her silence and inaction have been prolonged to such a
point that her abandonment of the child and her total relinquishment of parental claim over her, can
and should be inferred as a matter of law.

We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a ground which
the court overlooked — i.e., abandonment by the petitioner of her child.

Flora Cabangbang took care of Betty Chua Sy aka Grace Cabangbang as if she were her own

For, by her own admission, the petitioner has no regular source of income, and it is doubtful, to say
the very least, that she can provide the child with the barest necessities of life, let alone send her to
school. These are of course conjectures, but when the welfare of a helpless child is at stake, it is the
bounden duty of courts — which they cannot shirk — to respect, enforce, and give meaning and
substance to a child's natural and legal right to live and grow in the proper physical, moral and
intellectual environment
This is not to say that with the Cabangbang spouses, a bright and secure future is guaranteed for her.
For life is beset at every turn with snares and pitfalls.

Verily, to surrender the girl to the petitioner would be to assume — quite incorrectly — that only
mothers are capable of parental love and affection. Upon the contrary, this case precisely
underscores the homiletic admonition that parental love is not universal and immutable like a law of
natural science.

(INSERT LANG NI)

1. Father and mother jointly exercise parental authority (whether legitimate or illegitimate but qualified
by the requirement -as far as what is relevant to our case- that mother and father must be living
together. In the case, parents of Mary were not living together, hence no joint parental authority to
begin with)

2. In case of absence or death of either parent, the present parent shall ​continue exercising parental
authority (presupposes that the father already had joint parental authority only that because of death
of his partner, he will continue exercising parental authority alone. Not applicable in the case)

3. Age is only relevant if the child is legitimate. If illegitimate, the parental authority will always be to
the mother except if court finds compelling reasons not to award her such. It’s also moot and
academic in the case already because Betty Chua Sy is already 10 yrs old)

4. Death, absence or unsuitability of the parents, ​substitute parental authority ​shall be exercised by
the ​surviving grandparent​. Dean Monteclar page 334 (Verbatim) ​For the application of Article 214, it
is necessary that both parents must have already been dead or unable to exercise parental authority.
If only one parent is dead or absent, parental authority shall be exercised by the surviving parent and
not by the grandparents)

5. Continuation of the substitute parental authority:

1. Surviving grandparent ​(must be disqualified so we can move to the actual custodian)
2. Oldest brother or sister, over twenty-one years of age, unless unfit or disqualified ​(not
applicable in the case)
3. The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified ​(In
the case, Frank Adler was Mary’s actual custodian. The challenge is to prove that he is fit and
qualified to take over substitute parental authority)

Dean Monteclar, page 336:

 It must be noted, however, that the child’s actual custodian ​who is not in any way related by
blood to the child​, may be awarded by the court the custody and parental authority even as against
the natural parents of the said child. Thus, where it appears that the biological parents of the child are
improper persons to whom to entrust the care, custody and control of the child, the court may
designate even a stranger to exercise custody and parental authority over the child.

(END)

art. 363 of the Civil Code, which states that

In all questions on the care, custody, education and property of children, the latter's welfare shall be
paramount.....

I think this exact provision can no longer be found in the code. Jurisprudence will provide for this
instead

-------------------------------------------------------------​END​----------------------------------------------------------

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

GR 166682

November 27, 2009

HBCastilla: This case was actually remanded to the Regional Trial Court for the purpose of receiving
evidence to determine the fitness of the Spouses Gallardo (grandparents of Maryl Joy Gallardo) to
have custody over the latter. This case is more on the effect of habeas corpus or production of Maryl
Joy Gallardo before the trial court. Supreme Court said the RTC should have conducted a trial to
determine who had the rightful custody over Maryl Joy because what the RTC did is it hastily granted
the petition for habeas corpus and awarded custody of Maryl Joy to the Spouses Gallardo without
sufficient basis

(Verbatim)

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.

-------------------------------------------------------------​END​----------------------------------------------------------

​DAGUPAN

International Law (UK)

Source: http://www.legislation.gov.uk/ukpga/1989/41/data.pdf

Law: ​Children Act of 1989 s 1(3):

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—

(a) The ascertainable wishes and feelings of the child concerned (considered in light of their age and
understanding);
(b) The child's physical, emotional and educational needs;

(c) The likely effect on the child of the change in circumstances;

(d) The child's age, sex, background and any characteristics which the court considers relevant;

(e) Any harm which the child has suffered or is at risk of suffering;

(f) How capable end of his parents, and any other person in relation to whom the court considers the
question to be relevant is of meeting his needs;

(g) The range of powers available to the court under this Act in the proceedings in question.

Relevant portions:

(a) The ascertainable wishes and feelings of the child concerned (considered in light of their age and
understanding);

(c) The likely effect on the child of the change in circumstances;

(e) Any harm which the child has suffered or is at risk of suffering;

(f) How capable end of his parents, and any other person in relation to whom the court considers the
question to be relevant is of meeting his needs;

​Najeb O. Matuan

RA NO. 9262

A. ​R.A. 9262 - ​entitled "An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties therefor and for other Purposes."

B. SECTION 5. ​Acts of Violence Against Women and Their Children​. — The crime of violence
​

against women and their children is committed through any of the following

(e) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or to desist from
conduct which the woman or her child has the right to engage in, or
attempting to restrict or restricting the woman's or her child's freedom of
 movement or conduct by force or threat of force, physical or other harm or
threat of physical or other harm, or intimidation directed against the woman or
child. This shall include, but not limited to, the following acts committed with
the purpose or effect of controlling or restricting the woman's or her child's
movement or conduct:
(1) Threatening to deprive or actually depriving the woman or her child of
custody or access to her/his family;
(2) Depriving or threatening to deprive the woman or her children of financial
support legally due her or her family, or deliberately providing the
woman's children insufficient financial support;
(3) Depriving or threatening to deprive the woman or her child of a legal right;
(4) Preventing the woman in engaging in any legitimate profession,
occupation, business or activity or controlling the victim's own money
or properties, or solely controlling the conjugal or common money, or
properties;
||| ​(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,
that alarms or causes substantial emotional or psychological distress to the woman
or her child. This shall include, but not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or private places; ​EHaCID
(2) Peering in the window or lingering outside the residence of the woman or
her child;
(3) Entering or remaining in the dwelling or on the property of the woman or
her child against her/his will;
(4) Destroying the property and personal belongings or inflicting harm to
animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence;

C. ​… (e) ​Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or to desist from conduct which the woman or her
child has the right to engage in, or attempting to restrict or restricting the woman's or her child's
freedom of movement..

X X X

….​(h) ​Engaging in purposeful, knowing, or reckless conduct, personally or through another, that
alarms or causes substantial emotional or psychological distress to the woman or her child…..
D.​ E
​ velyn Adler is not fit to take and raise Mary Adler under her custody.

Section 5 (e) and (h) of RA No. 9262 provides that compelling the woman or her child to engage in a
conduct and or restricting the woman’s or her child’s freedom of movement, as well as engaging in
a conduct that alarms or causes substantial emotional or psychological distress to the woman or
her child, is punishable by law under such Act.

Evelyn Adler’s action in compelling the child to read advance mathematical books, and isolating latter
from her uncle and friends to solve advance mathematical problems, deprives the child of her
freedom to do what she wants, and her freedom to become a child and play with her friends. Taking
the child away from her uncle and putting her in an adaptive family, as well as disposing her beloved
pet caused the child substantial distress.

The best interests of children shall be the paramount consideration in all actions concerning them,
therefore the court should not award the Mary to Evelyn, rather give Mary to her uncle for it is for her
best interest.

LUNA vs. INTERMEDIATE COURT

A. HORACIO LUNA and LIBERTY HIZON-LUNA​, petitioners, vs. ​INTERMEDIATE APPELLATE

​

COURT, HON. ROQUE A. TAMAYO​, as Presiding Judge of Regional Trial Court, NCJR, Branch
CXXXII, Makati, Metro Manila, ​MARIA LOURDES SANTOS​, and ​SIXTO SALUMBIDES​,
respondents.

GR NO. L-68374. June 18, 1985

B. ​ e find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or
“W
​

run away from home if she should be taken away from the herein petitioners and forced to live
with the private respondents, made during the hearings on the petitioners' motion to set aside the
writ of execution and reiterated in her letters to the members of the Court dated September 19,
1984 4 and January 2, 1985, 5 and during the hearing of the case before this Court, is a
circumstance that would make the execution of the judgment rendered in Spec. Proc. No. 9417 of
the Court of First Instance of Rizal inequitable, unfair and unjust, if not illegal. Article 363 of the
 Civil Code provides that in all questions relating to the care, custody, education and property of
the children, the latter's welfare is paramount. This means that the best interest of the minor can
override procedural rules and even the rights of parents to the custody of their children. Since, in
this case, the very life and existence of the minor is at stake and the child is in an age when she
can exercise an intelligent choice, the courts can do no less than respect, enforce and give
meaning and substance to that choice and uphold her right to live in an atmosphere conducive to
her physical, moral and intellectual development. 6 The threat may be proven empty, but Shirley
has a right to a wholesome family life that will provide her with love, care and understanding,
guidance and counselling, and moral and material security.”

C. ​….Article 363 of the Civil Code provides that in all questions relating to the care, custody,
education and property of the children, the latter's welfare is paramount. This means that the best
interest of the minor can override procedural rules and even the rights of parents to the custody of
their children… Shirley has a right to a wholesome family life that will provide her with love, care
and understanding, guidance and counselling, and moral and material security.”

D. ​Applying the rulings of the Supreme Court in the case of Luna vs. Intermediate Appellate Court to
the custody case of Mary Adler, it is clear that court should award the child to her uncle (Frank
Adler) for the very reason that it is for her best interest and welfare. Frank Adler was the one who
took care of child when her mother died, and continued supporting the child by providing her basic
needs and by sending her to school.

Based on the facts of the case ​(​Facts from the movie), Evelyn Adler (grandmother), had no interest in
raising the child in the first place, she only decided to visit the child after 7 years when she found out
that the child was being offered a scholarship by the school for being “Gifted”. Her intention was not
to raise the child as her granddaughter, but to take advantage of the child’s intellectual skills, and to
exploit such skills to prove mathematical problems that she (Evelyn) had been trying to solve her
entire life.

Diane Adler (Mother of Mary) was also a gifted child, she was raised and mentored by Evelyn Adler.
Diane followed Evelyn, but later on, she decided to take her own life because she was no longer
happy and can no longer handle the pressure being given to her by Evelyn. It is unfair to put the child
in the same situation; therefore, the court should award the child to her uncle because it is for her
best interest and welfare.
M.MACURO

Republic Act 7610

Special Protection of Children Against Abuse, Exploitation and Discrimination Act

​AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE,
EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION AND FOR OTHER
PURPOSES.

​ARTICLE VI ​Other Acts of Abuse

Sec. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's
Development.

​(a) Any person who shall commit any ​other acts of child abuse, cruelty or exploitation or to be responsible for other
conditions prejudicial to the child's development ​including those covered by Article 59 of Presidential Decree No. 603,
as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period.

Presidential Decree No. 603

THE CHILD AND YOUTH WELFARE CODE

​Art. 59. Crimes. - Criminal liability shall attach to any parent who:

(​ 7) Improperly exploits the child by using him, directly or indirectly, such as for purposes of begging ​and other acts
which are inimical to his interest and welfare​.

REPUBLIC ACT NO. 9344

AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE
JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES.

Sec. 2. Declaration of State Policy. - The following State policies shall be observed at all times:

(b) The State shall protect the best interests of the child through measures that will ensure the observance of international
standards of child protection, especially those to which the Philippines is a party. ​Proceedings before any authority
shall be conducted in the best interest of the child and in a manner which allows the child to participate and to
express himself/herself freely​. The participation of children in the program and policy formulation and implementation
related to juvenile justice and welfare shall be ensured by the concerned government agency.
RA 7610 ART VI SEC 10(a), PD 603 ART 59 SEC 7; ​Statute criminalizing the exploitation of children which the
grandmother is tantamount to violating during the period while the child was in her custody. This means that if
grandmother is found guilty for violating this provision this becomes basis for grandma to be ​UNFIT as a guardian, so lets
file a criminal case against the grandma for violation of said statutes.

RA 9344 SEC 2(b); ​Law for the protection of the child

While the criminal case is pending in the courts, we move to appoint the uncle as temporary judicially appointed guardian
of the child based on ART 216 SEC 2 & 3 of the FAMILY CODE (refer to Ms. Gacis notes) by the time the case will
resolve the child will be old enough to choose her guardian.

IF CHILD STILL NOT OLD ENOUGH

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

Children under the age of seven are deemed not qualified to choose for themselves their guardian for the reason that at
this age most children are still unable to grasp the entirety of the meaning and consequence of their choice.

But in our case since our child is considered as a prodigy (A child prodigy is defined in psychology research literature as a
person under the age of ten who produces meaningful output in some domain to the level of an adult expert​.
(​https://en.wikipedia.org/wiki/Child_prodigy​)) whose IQ would not be less than 130 (​http://gleigh.tripod.com/gftskills.htm​),
is way higher compared to that of an 18 to 19 year old with the average IQ of 105
(​https://sciencetrends.com/iq-scale-iq-charts-by-age/​) this means that in spite of her CHRONOLOGICAL AGE of less than
seven years old, her IQ elevates her to the DEVELOPMENTAL AGE of an 18 year old or higher, this means that she can
grasp the paramount importance of her decision to a level at par with an adult. ART 13 does not differentiate between a
CHRONOLOGICAL AGE from that of the DEVELOPMENTAL AGE, it only states OVER SEVEN YEARS OF AGE, what is
important here is that the child has reached the AGE where she can clearly grasp the tantamount importance of her
decision, which is the very reason why it is important that a child should decide at an age beyond seven years.

Gacis, Ma. Rose Angelika C.

Art. 209. (FAMILY CODE OF THE PHILIPPINES). Pursuant to the natural right and duty of parents over the person
and property of their unemancipated children, parental authority and responsibility shall include the caring for
and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical
and well being.

Parental authority is the mass of rights and obligations which parents have in relation to the person and property of their
children until their emancipation, and even after this certain circumstances (Manresa)

Parental authority includes

1. Caring for and rearing of such children for civic consciousness and efficiency
2. Development of their moral, mental and physical character and well being.
Substitute Parental Authority ​is the parental authority which the persons designated by law may exercise over the
persons and property of unemancipated children in case of ​death, absence, or unsuitability of both parents ​or in
default of a judicially appointed guardian

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the
surviving grandparent. In case several survive, the one designated by the court, taking into account the same
consideration mentioned in the preceding article, shall exercise the authority.

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental
authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of
preference shall be observed.

Substitute Representation (Art. 222)

The court may appoint a guardian of the child’s property, or a guardian ad litem when the best interests of the
child so requires.

In the movie, Frank Adler, who works as a freelance boat repairman and lives in a trailer park on the Florida coast, has
been guardian to his seven year old niece Mary Adler since she was a newborn after her mother, Frank's sister, Diane
Adler, committed suicide. At the time, Frank was a Philosophy professor at Boston University, he moving with Mary in an
effort to "escape". Like her mother, Mary is a math prodigy, of which Frank is well aware. Frank has home schooled Mary
up until now in an effort to protect her from people like who he was escaping from, his and Diane's own mother,
uncompromising (to use Frank's vernacular) Evelyn Adler, who, if she had custody, would have had a singular focus in the
math prodigy aspect of Mary, much like she was with Diane. Frank, who has largely treated Mary like an equal in being up
front with her about most things, has now decided to send Mary to a regular public school in an effort to socialize her to
other children and to make her feel like a normal child, with their neighbor, adult Roberta Taylor, Mary's only real friend
besides Frank. Roberta routinely sits with Mary to allow Frank his regular Friday out at the bar for himself. Although Frank
cautions Mary about not being too "obvious" at school, Mary's teacher, Bonnie Stevenson, quickly discovers not only
Mary's advanced math abilities, but her background being Diane's daughter. Although Miss Stevenson, like Frank, wants
what's best holistically for Mary, the process to provide an advanced education to Mary at the expense of all else begins
to snowball to the point where Evelyn learns of Frank and Mary's whereabouts. Not agreeing with any of Frank's choices,
Evelyn sues for full custody, which brings into light the entire dynamic that existed and exists between Evelyn, Frank and
Diane.

Argument: The custody of the the child should be awarded to the uncle in consideration to the best interest of
the child.

To the fact that Mary’s parents are already dead, eventually her uncle Frank became her guardian and the one who has
parental authority over her. Pursuant to Art. 214 of the Family Code, In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one
designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the
authority. Persons who can exercise substitute parental authority in default of parents or judicially appointed guardian are
the the surviving grandparent, oldest brother sister, over 21 years old, unless unfit or unqualified and the child’s actual
custodian, over 21 years old unless fit or unqualified. Notwithstanding the provision says “the surviving grandparent”, still
the custody the child should be awarded to the uncle because the list is not mandatory. The court will still look into the
best consideration of the general welfare of the child. Here, despite the uncle is only a boat repairman, there’s no
evidence to show that the same is unfit to provide the child with adequate support, education, as well as moral and
intellectual training and development. it is incontestable that the child already developed a sense of belongingness,
security and comfort with her uncle. The grandmother is only interested with regards to the custody of the child because of
her excellent mathematical ability. There’s even a clip in the movie when the child was scared because her grandmother
is bossy, whereby she’s not comfortable if she’s with her grandmother.

Source: (Laxama vs. Laxamana ​G.R. No. 144763. September 3, 2002)

In Laxama vs. Laxamana, the Supreme Court ruled that involving the care, custody and control of their minor children, the
contending parents stand on equal footing before the court who shall make the best selection according o the best interest
of the child. The child if over seven years of age may be permitted to choose which parents he/she prefers to live with, but
the court is not bound by such choice if the parent chosen is unfit. In all cases, the the sole and foremost consideration is
the physical, educational, social and moral welfare of the child concerned, taking into account the respective sources as
well as social and moral situations of the opposing parents.

Source: (Tonog vs. CA ​G.R No. 122906 February 7, 2002)

In Tonog vs. CA, the Supreme Court ruled that the child should not be wrenched from her familiar surroundings, and
thrust into a strange environment away from the people and places which she had apparently formed an attachment.