I.

Dear Ma’am/ Sir,

This legal opinion seeks to answer your question as to

whether or not under Philippine Laws you have custody and rights
over you grandchild C, as far as the aforementioned facts are
concerned.

The Facts

My son, A, was married to B on 10 January 2000. They have

a child, C, 6 years of age. C has been staying with me since he
was born, and I have raised him as my own. A and B separated
since C was born. When they separated, B executed a document,
saying that she waives all her rights to C. B then left for the United
States after she and my son separated. She came back just
recently and wants to get C from me.

The Applicable Law

The applicable law is Article 210 of the Family Code. It

provides that:

Parental authority and responsibility may not be renounced

or transferred except in the cases authorized by law. (313a).1

Following this provision in the Family Code, it is suitable to say

that Parental Authority is purely personal.

The Applicable Jurisprudence

“Children begin by loving their parents. After a time, they

judge them. Rarely, if ever, do they forgive them. Indeed,
parenthood is a riddle of no mean proportions except for its
mission. Thus, a mother’s concern for her child’s custody is
undying — such is a mother’s love.” Sagala-Eslao v Court of
Appeals and Cordero-Ouye (G.R. No. 116773, 16 January 1997,
Ponente: Honorable Associate Justice Justo P. Torres, Jr.)2

1 Article 210 Family Code of the Philippines

2 Sagala-Eslao v Court of Appeals and Cordero-Ouye (G.R. No. 116773, 16
January 1997.
 The ruling on Teresita Sagala-Eslao vs Maria Paz Cordero-
Ouye, penned by former Associate Justice Justo Torres Jr.
answers your query:

“[Parental authority] is a mass of rights and obligations which

the law grants to parents for the purpose of the children’s physical
preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses. As regards
parental authority, ‘there is no power, but a task; no complex of
rights, but a sum of duties; no sovereignty but a sacred trust for
the welfare of the minor.’

Parental authority and responsibility are inalienable and

may not be transferred or renounced except in cases authorized
by law. The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a children’s
home or an orphan institution. When a parent entrusts the custody
of a minor to another, such as a friend or godfather, even in a
document, what is given is merely temporary custody and it does
not constitute a renunciation of parental authority. Even if a
definite renunciation is manifest, the law still disallows the same.
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep them
in their custody and company.”3

Additional Laws

Article 363 of the Civil Code provides that:

In all questions on the care, custody, education and property

of children the latter's welfare shall be paramount. No mother shall
be separated from her child under seven years of age, unless the
court finds compelling reasons for such measure.4

Article 213 of the Family Code provides that:

“No child under seven years of age shall be separated from

the mother unless the court finds compelling reasons to order
otherwise.”5

Both articles concerned provide that no child under 7 years of age

shall be separated from the mother, unless the court finds

3 Id.
4 Article 363 of the Civil Code of the Philippines.
5 Article 213 Family Code of the Philippines.
compelling reasons to do order otherwise, only difference, the
latter pertaining in case of legal separation.

Recommendation

Hence, what you can avail for is remedy in order to

challenge the credibility of B’s parental authority. Such parental
authority may be decided by the court to be transferred to whoever
may deem fit, if you can provide compelling reasons and justifiable
claim that she is unfit as a parent, for instance the fact that she left
for the United States constitutes an abandonment can be justified.
In addition, since the child is 6 years old, by the time he/she
reaches the age of 7, as stated in the last paragraph of Article 213
of the Family Code, his/her choice is utmost concern of the
deciding court. Therefore, it is within the child’s choice that will
bring the greatest weight for the court to decide with whom the
parental authority is awarded over the child.

II.

Dear Ma’am/Sir,

This legal opinion seeks to answer your question as to whether or

not under Philippine Laws a notice of dishonor sent by registered
mail sufficient.

The Facts

I loaned money to Estafadora in the amount of Php5,000,000.00.

She executed a post-dated check as payment, but it was
dishonored for being drawn against insufficient funds. I sent her a
notice of dishonor by registered mail as she refused to
acknowledge receipt. Is a notice of dishonor sent by registered
mail sufficient?

The Applicable Law

The applicable law is BATAS PAMBANSA BLG. 22 or the Anti-

Bouncing Check Law, which provides that:

Section 1. Checks without sufficient funds. - Any person who

makes or draws and issues any check to apply on account or for
value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such
check in full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds or credit
or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty
days but not more than one (1) year or by a fine of not less than
but not more than double the amount of the check which fine shall
in no case exceed Two Hundred Thousand Pesos, or both such
fine and imprisonment at the discretion of the court.6

In general, only preponderance of evidence is needed to

establish such due notice. However, in this specific issue, Batas
Pambansa Blg. 22 applies differently. It is a criminal decree in
nature. Therefore, it penalizes the act of issuing a worthless check.
Thus, the quantum of proof that is required by law in a criminal
case or procedure is a proof beyond reasonable doubt. It requires
clear and convincing evidence, in this case, which constitutes
proof of notice.

The Applicable Jurisprudence

Ting v Court of Appeals and People (G.R. No. 140665

13 November 2000).

If the notice of dishonor is sent by registered mail, the fact of

sending the notice of dishonor is established by the registry
receipt, the registry return card, and an affidavit executed by the
person who mailed the notice of dishonor detailing the
circumstances of the mailing (Victor Ting “Teng See”, et al. v.
Court of Appeals, et al., G.R. No. 140665, 13 November 2000).7

As to establishing actual receipt, the prosecution must also

prove that the signature appearing on the registry return card or
notice of dishonor, in case of personal service, belongs to that of
the issuer of the dishonored check or, at the very least, to his duly
authorized agent. The prosecution must establish the capacity and
authority of such person as agent. An illegible signature, such as
when a recipient merely signs his/ her initials on the registry return
card or notice of dishonor, as the case may be, does not prove
that the issuer actually received the notice of dishonor (Victor Ting
“Teng See”, et al. v. Court of Appeals, et al., G.R. No. 140665, 13
November 2000).8

6 BATAS PAMBANSA BLG. 22

7 Victor Ting “Teng See”, et al. v. Court of Appeals, et al., G.R. No. 140665, 13
November 2000
8 Ibid.
 The Court held that it is imperative in cases which involves
violation of BP 22 that the prosecution must prove that the issuer
of the check have received such notice of dishonor. Therefore, the
burden of proof lies upon the party asserting its existence. It has
been consistently decided that when a service of notice is an
issue, such as in the present case, the persons alleging that the
notice was served must prove the fact of service.

Recommendation

Therefore, in order to establish a clear proof of evidence, a

service made by way of a registered mail is proved by 1) registry
receipt issued by the mailing office which processed the said mail;
and 2) an affidavit of the person mailing of facts which manifests
compliance with Section 7 Rule 13. If the notice of dishonor is sent
by registered mail, the fact of sending the notice of dishonor is
established by the registry receipt, the registry return card, and an
affidavit executed by the person who mailed the notice of dishonor
detailing the circumstances of the mailing (Victor Ting “Teng See”,
et al. v. Court of Appeals, et al., G.R. No. 140665, 13 November
2000).

The notice of dishonor may be sent to the office of the maker

or drawer of the dishonored check but he must receive the notice
personally or through his authorized agent. A corporation or an
officer of a corporation that receives a notice of dishonor
addressed to one of its employees has no obligation to forward the
notice to the employee concerned. Thus, such receipt is not the
receipt contemplated by BP 22 (Lao v. Court of Appeals, G.R. No.
119178, 20 June 1997).9

The notice of dishonor may be sent to, and received by, the
maker or drawer of the dishonored check wherever he may be
found as long as the fact and date of receipt are established. In
Section 13 Rule 13 of the 1997 Rules of Civil Procedure, which
provides that if a service is made through a registered mail, proof
shall be made by an affidavit and the registry receipt which was
issued by the mailing office responsible. The registry return card
shall be filed at once upon its receipt by the sender, or lieu thereof,
the unclaimed letter with the certified or sworn copy of the notice
given by the official of the mail office to the addressee.10

9 Lao v. Court of Appeals, G.R. No. 119178, 20 June 1997

10 Section 13 Rule 13 1997 Rules of Civil Procedure.
 I appreciate the opportunity to advise you regarding this
matter. Please let me know if you wish to discuss any of these
issues further. Thank you.

Yours faithfully,

(Sgd.) LEGAL COUNSEL

LEGAL RESEARCH

LEGAL OPINION

CANLAS, ADRIAN RON H.

ATTY. ROWELL D. ILAGAN

NOVEMBER 12, 2019