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THIRD DIVISION

[G.R. No. 156343. October 18, 2004.]

JOEY D. BRIONES, petitioner,

vs. MARICEL P. MIGUEL,
FRANCISCA P. MIGUEL and
LORETA P. MIGUEL,
respondents.

DECISION

PANGANIBAN, J : p

An illegitimate child is under the sole

parental authority of the mother. In the
exercise of that authority, she is entitled to
keep the child in her company. The Court will
not deprive her of custody, absent any
imperative cause showing her unfitness to
exercise such authority and care.
The Case
The Petition for Review 1 before the
Court seeks to reverse and set aside the
August 28, 2002 Decision 2 and the December
11, 2002 Resolution 3 of the Court of Appeals
in CA-GR SP No. 69400. 4 The dispositive
portion of the assailed Decision reads as
follows:
"WHEREFORE, the petition
is hereby DISMISSED. Respondent
Loreta P. Miguel shall have custody
over the child Michael Kevin Pineda
until he reaches ten (10) years of
age. Once the said child is beyond
 ten (10) years of age, the Court
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allows him to choose which parent
he prefers to live with pursuant to
Section 6, Rule 99 of the 1997
Rules of Civil Procedure, as
 amended. The petitioner, Joey D.
Briones, shall help support the
child, shall have visitorial rights at
least once a week, and may take
the child out upon the written
consent of the mother.
"Acting on the petitioner's
'Urgent Motion for a Hold Departure
Order', and finding it to be without
merit, the same is DENIED." 5

The challenged Resolution denied

reconsideration.
The Facts
The CA summarized the antecedents of
the case in this wise:
"On March 5, 2002,
petitioner Joey D. Briones filed a
Petition for Habeas Corpus against
respondents Maricel Pineda Miguel
and Francisca Pineda Miguel, to
obtain custody of his minor child
Michael Kevin Pineda. THaDAE

"On April 25, 2002, the

petitioner filed an Amended Petition
to include Loreta P. Miguel, the
mother of the minor, as one of the
respondents.
"A Writ of Habeas Corpus
was issued by this Court on March
11, 2002 ordering the respondents
to produce before this Court the
living body of the minor Michael
Kevin Pineda on March 21, 2002 at
2:00 o'clock in the afternoon.
 "The petitioner alleges that
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the minor Michael Kevin Pineda is
his illegitimate son with respondent
Loreta P. Miguel. He was born in
Japan on September 17, 1996 as
 evidenced by his Birth Certificate.
The respondent Loreta P. Miguel is
now married to a Japanese national
and is presently residing in Japan.
"The petitioner further
alleges that on November 4, 1998
he caused the minor child to be
brought to the Philippines so that
he could take care of him and send
him to school. In the school year
2000–2001, the petitioner enrolled
him at the nursery school of
Blessed Angels L.A. School, Inc. in
Caloocan City, where he finished
the nursery course.
"According to the petitioner,
his parents, who are both retired
and receiving monthly pensions,
assisted him in taking care of the
child.
"On May 2, 2001,
respondents Maricel P. Miguel and
Francisca P. Miguel came to the
house of the petitioner in Caloocan
City on the pretext that they were
visiting the minor child and
requested that they be allowed to
bring the said child for recreation at
the SM Department store. They
promised him that they will bring
him back in the afternoon, to which
the petitioner agreed. However, the
respondents did not bring him back
as promised by them.
"The petitioner went several
times to respondent Maricel P.
Miguel at Tanza, Tuguegarao City
 but he was informed that the child
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is with the latter's mother at Batal
Heights, Santiago City. When he
went there, respondent Francisca
P. Miguel told him that Michael
 Kevin Pineda is with her daughter
at Tuguegarao City.
"He sought the assistance of
the police and the Department of
Social Welfare to locate his son
and to bring him back to him, but all
his efforts were futile.
"Hence, he was constrained
to file a Petition for Habeas Corpus
with the Regional Trial Court of
Caloocan City which was docketed
as SPC No. 2711. However, the
said case was withdrawn ex-parte.
"The petitioner prays that the
custody of his son Michael Kevin
Pineda be given to him as his
biological father and [as] he has
demonstrated his capability to
support and educate him.
"On May 6, 2002, the
respondents filed their Comment, in
compliance with the May 2, 2002
Resolution of this Court.
"In their Comment, the
respondent Loreta P. Miguel denies
the allegation of the petitioner that
he was the one who brought their
child to the Philippines and stated
that she was the one who brought
him here pursuant to their
agreement. SCHcaT

"Respondent Loreta P.
Miguel likewise denies petitioner's
allegation that respondents Maricel
P. Miguel and Francisca P. Miguel
were the ones who took the child
 from the petitioner or the latter's
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parents. She averred that she was
the one who took Michael Kevin
Pineda from the petitioner when
she returned to the Philippines and
 that the latter readily agreed and
consented.
"Respondent Loreta P.
Miguel alleges that sometime in
October 2001, the petitioner was
deported from Japan under the
assumed name of Renato Juanzon
when he was found to have
violated or committed an infraction
of the laws of Japan. She further
stated that since the time the
petitioner arrived in the Philippines,
he has not been gainfully
employed. The custody of the child,
according to respondent Loreta P.
Miguel was entrusted to petitioner's
parents while they were both
working in Japan. She added that
even before the custody of the child
was given to the petitioner's
parents, she has already been
living separately from the petitioner
in Japan because the latter was
allegedly maintaining an illicit affair
with another woman until his
deportation.
"She likewise stated in her
Comment that her marriage to a
Japanese national is for the
purpose of availing of the privileges
of staying temporarily in Japan to
pursue her work so she could be
able to send money regularly to her
son in the Philippines. She further
stated that she has no intention of
staying permanently in Japan as
 she has been returning to the
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Philippines every six (6) months or
as often as she could.
"Respondent Loreta P.
Miguel prays that the custody of her
 minor child be given to her and
invokes Article 213, Paragraph 2 of
the Family Code and Article 363 of
the Civil Code of the Philippines."
Ruling of the Court of Appeals
Applying Article 213 (paragraph 2) of the
Family Code, the CA awarded the custody of
Michael Kevin Pineda Miguel to his mother,
Respondent Loreta P. Miguel. While
acknowledging that petitioner truly loved and
cared for his son and considering the trouble
and expense he had spent in instituting the
legal action for custody, it nevertheless found
no compelling reason to separate the minor
from his mother. Petitioner, however, was
granted visitorial rights.
Hence, this Petition. 6
Issue
In his Memorandum, petitioner
formulated the "ultimate" issue as follows: ". . .
[w]hether or not [he], as the natural father, may
be denied the custody and parental care of his
own child in the absence of the mother who is
away." 7
The Court's Ruling
The Petition has no merit. However, the
assailed Decision should be modified in regard
to its erroneous application of Section 6 of
Rule 99 of the Rules of Court. SDHCac

Sole Issue
Who Should Have Custody of the Child?
 Petitioner
More concedes
information »that Respondent
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Loreta has preferential right over their minor
child. He insists, however, that custody should
be awarded to him whenever she leaves for
Japan and during the period that she stays
 there. In other words, he wants joint custody
over the minor, such that the mother would
have custody when she is in the country. But
when she is abroad, he — as the biological
father — should have custody.
According to petitioner, Loreta is not
always in the country. When she is abroad, she
cannot take care of their child. The undeniable
fact, he adds, is that she lives most of the time
in Japan, as evidenced by her Special Power
of Attorney dated May 28, 2001, 8 granting to
her sister temporary custody over the minor.
At present, however, the child is already
with his mother in Japan, where he is studying,
9 thus rendering petitioner's argument moot.

While the Petition for Habeas Corpus was

pending before the CA, petitioner filed on July
30, 2002, an "Urgent Motion for a Hold
Departure Order," 10 alleging therein that
respondents were preparing the travel papers
of the minor so the child could join his mother
and her Japanese husband. The CA denied
the Motion for lack of merit. 11
Having been born outside a valid
marriage, the minor is deemed an illegitimate
child of petitioner and Respondent Loreta.
Article 176 of the Family Code of the
Philippines 12 explicitly provides that
"illegitimate children shall use the surname and
shall be under the parental authority of their
mother, and shall be entitled to support in
conformity with this Code." This is the rule
regardless of whether the father admits
paternity. 13
 Previously, under the» provisions of the
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Civil Code, illegitimate children were generally
classified into two groups: (1) natural, whether
actual or by legal fiction; and (2) spurious,
whether incestuous, adulterous or illicit. 14 A
 natural child is one born outside a lawful
wedlock of parents who, at the time of
conception of the child, were not disqualified
by any impediment to marry each other. 15 On
the other hand, a spurious child is one born of
parents who, at the time of conception, were
disqualified to marry each other on account of
certain legal impediments. 16
Parental authority over recognized
natural children who were under the age of
majority was vested in the father or the mother
recognizing them. 17 If both acknowledge the
child, authority was to be exercised by the one
to whom it was awarded by the courts; if it was
awarded to both, the rule as to legitimate
children applied. In other words, in the latter
case, parental authority resided jointly in the
father and the mother. 18

The fine distinctions among the various

types of illegitimate children have been
eliminated in the Family Code. 19 Now, there
are only two classes of children — legitimate
(and those who, like the legally adopted, have
the rights of legitimate children) and
illegitimate. All children conceived and born
outside a valid marriage are illegitimate, unless
the law itself gives them legitimate status. 20
Article 54 of the Code provides these
exceptions: "Children conceived or born before
the judgment of annulment or absolute nullity
of the marriage under Article 36 has become
final and executory shall be considered
 legitimate.
browser.Children conceived or born of the
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subsequent marriage under Article 53 shall
likewise be legitimate."
Under Article 176 of the Family Code, all
illegitimate children are generally placed under
 one category, without any distinction between
natural and spurious. 21 The concept of
"natural child" is important only for purposes of
legitimation. 22 Without the subsequent
marriage, a natural child remains an
illegitimate child.
Obviously, Michael is a natural
("illegitimate," under the Family Code) child, as
there is nothing in the records showing that his
parents were suffering from a legal impediment
to marry at the time of his birth. Both
acknowledge that Michael is their son. As
earlier explained and pursuant to Article 176,
parental authority over him resides in his
mother, Respondent Loreta, notwithstanding
his father's recognition of him.
David v. Court of Appeals 23 held that the
recognition of an illegitimate child by the father
could be a ground for ordering the latter to give
support to, but not custody of, the child. The
law explicitly confers to the mother sole
parental authority over an illegitimate child; it
follows that only if she defaults can the father
assume custody and authority over the minor.
Of course, the putative father may adopt his
own illegitimate child; 24 in such a case, the
child shall be considered a legitimate child of
the adoptive parent. 25
There is thus no question that
Respondent Loreta, being the mother of and
having sole parental authority over the minor,
is entitled to have custody of him. 26 She has
the right to keep him in her company. 27 She
 cannot be deprived of that» right,
28 and she
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may not even renounce or transfer it "except in
the cases authorized by law. 29
Not to be ignored in Article 213 of the
 Family Code is the caveat that, generally, no
child under seven years of age shall be
separated from the mother, except when the
court finds cause to order otherwise. ITCHSa

Only the most compelling of reasons,

such as the mother's unfitness to exercise sole
parental authority, shall justify her deprivation
of parental authority and the award of custody
to someone else. 30 In the past, the following
grounds have been considered ample
justification to deprive a mother of custody and
parental authority: neglect or abandonment, 31
unemployment, immorality, 32 habitual
drunkenness, drug addiction, maltreatment of
the child, insanity, and affliction with a
communicable disease.
Bearing in mind the welfare and the best
interest of the minor as the controlling factor, 33
we hold that the CA did not err in awarding
care, custody, and control of the child to
Respondent Loreta. There is no showing at all
that she is unfit to take charge of him.
We likewise affirm the visitorial right
granted by the CA to petitioner. In Silva v.
Court of Appeals, 34 the Court sustained the
visitorial right of an illegitimate father over his
children in view of the constitutionally
protected inherent and natural right of parents
over their children. 35 Even when the parents
are estranged and their affection for each other
is lost, their attachment to and feeling for their
offspring remain unchanged. Neither the law
nor the courts allow this affinity to suffer,
absent any real, grave or imminent threat to
the well-being of the child.
 However,Morethe CA erroneously applied
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Section 6 of Rule 99 of the Rules of Court. This
provision contemplates a situation in which the
parents of the minor are married to each other,
but are separated either by virtue of a decree
 of legal separation or because they are living
separately de facto. In the present case, it has
been established that petitioner and
Respondent Loreta were never married.
Hence, that portion of the CA Decision allowing
the child to choose which parent to live with is
deleted, but without disregarding the obligation
of petitioner to support the child. EICScD

WHEREFORE, the Petition is DENIED

and the assailed Decision AFFIRMED with the
MODIFICATION that the disposition allowing
the child, upon reaching ten (10) years of age,
to choose which parent to live with is
DELETED for lack of legal basis. Costs against
petitioner.
SO ORDERED.
Sandoval-Gutierrez and Corona, JJ .,
concur.
Carpio Morales, J ., is on leave.

Footnotes

1. Under Rule 45 of the Rules of Court; rollo,

pp. 7–21.
2. Penned by Justice Amelita G. Tolentino
(member), with the concurrence of
Justices Ruben T. Reyes (Division
chairman) and Renato C. Dacudao
(member); id., pp. 23–30.
3. Annex B of the Petition; rollo, p. 31.
4. On April 25, 2002, petitioner filed an
Amended Petition additionally impleading
Loreta P. Miguel, the minor's mother, as
one of the respondents.
 5. CA Decision, p. 7; id., p. 29.
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6. The case was deemed submitted for
decision on August 4, 2003, upon this
Court's receipt of respondents'
Memorandum, signed by Atty. Joaquin L.
 de los Santos. Petitioner's Memorandum,
signed by Atty. Manuel T. Molina, was
received by this Court on July 8, 2003.
7. Petitioner's Memorandum, p. 5; rollo, p. 55.
8. Special Power of Attorney; CA rollo, p. 29.
9. See Memorandum for respondents, p. 2;
rollo, p. 66.
10. CA rollo, pp. 111–113.
11. See CA Decision, p. 29; rollo, p. 107.
12. Executive Order No. 209 dated July 6,
1987, effective August 3, 1988.
13. Mossesgeld v. Court of Appeals, 300
SCRA 464, 468, December 23, 1998.
14. Reyes v. Court of Appeals, 135 SCRA
439, 448, March 19, 1985.
15. Article 269, New Civil Code.
16. See Article 269 in relation to Article 287,
ibid. See also Reyes v. Court of Appeals,
supra.
17. Article 311, New Civil Code.
18. Garcia v. Pongan, 89 Phil. 797, August
31, 1951.
19. Edgardo L. Paras, Civil Code of the
Philippines Annotated (15th ed., 2002),
Vol. I, p. 645 (citing Castro v. CA, 173
SCRA 656, May 31, 1989).
20. Article 165, Family Code.
21. See Pascual v. Pascual-Bautista, 207
SCRA 561, March 25, 1992.
22. See Article 177, Family Code.
 23. 250 SCRA 82, 86, November 16, 1995.
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24. See Article 185, Family Code.
25. Mossesgeld v. CA, supra.
26. David v. Court of Appeals, note 23.

27. Article 220, Family Code.
28. See Ibanez de Aldecoa v. Hongkong &
Shanghai Bank, 30 Phil. 228, 238, March
23, 1915.
29. Articles 210, Family Code. The law allows
a waiver of parental authority only in
cases of adoption, guardianship and
surrender to a children's home or an
orphanage; Sagala-Eslao v. Court of
Appeals, 334 Phil. 286, 293, January 16,
1997.
30. Perez v. Court of Appeals, 255 SCRA
661, 668, March 29, 1996; Lacson v. San
Jose-Lacson et al., 133 Phil. 884, 895,
August 30, 1968.
31. Medina v. Makabali, 27 SCRA 502, March
28, 1969.
32. Espiritu v. CA, 312 Phil. 431, March 15,
1995; Cervantes v. Fajardo, 169 SCRA
575, January 27, 1989; Unson III v.
Navarro, 101 SCRA 183, November 17,
1980.
33. Child welfare as an overriding
consideration in custodial award has been
shown in several cases decided by the
Supreme Court: Espiritu v. CA, supra;
Cervantes v. Fajardo, supra; Luna v.
Intermediate Appellate Court, 137 SCRA
7, June 18, 1985; Unson III v. Navarro,
supra; Medina v. Makabali supra; Lozano
v. Martinez et al., 36 Phil. 976, October
10, 1917.
 34. 275 SCRA 604, 609, July 17, 1997; see
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also Bondagjy v. Bondagjy, 371 SCRA
642, 653, December 7, 2001.
35. Article II, Section 12, 1987 Constitution.