[G.R. No. 116773. January 16, 1997.

TERESITA SAGALA-ESLAO, Petitioner, v. COURT OF APPEALS and MARIA PAZ CORDERO-

OUYE, Respondents.

Paulino P. Santiago Jr. for Petitioner.

Restituto R. Villanueva for Private Respondent.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; CONSTRUED. — In Santos, Sr. v. Court of
Appeals, 242 SCRA 407, this Court stated, viz: ". . . [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 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 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. (Family
Code). cralawnad

2. ID.; ID.; ID.; WHEN WAIVER THEREOF MAY BE ALLOWED BY LAW. — Thus, instant petition,
when private respondent entrusted the custody of her minor child the petitioner, what she
gave to the latter was merely temporary custody and it did not constitute abandonment or
renunciation of 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 which do not appear in the case at bar.

3. ID.; ID.; ID.; AS A RULE, PARENTS HAVE THE NATURAL RIGHT TO THE CUSTODY OF THEIR
MINOR CHILDREN. — Of considerable importance is the rule long accepted by the courts that
"the right of parents to the custody of their minor children is one of the natural rights incident
to parenthood, a right supported by law and sound public policy. The right is an inherent one,
which is not created by the state or decisions of the courts, but derives from the nature of the
parental relationship. 
Custody of a Minor Child

When love is lost between spouses and the marriage inevitably results in separation, the
bitterest tussle is often over the custody of their children. The Court is now tasked to settle the
opposing claims of the parents for custody pendente lite of their child who is less than seven
years old.30 On the one hand, the mother insists that, based on Article 213 of the Family Code,
her minor child cannot be separated from her. On the other hand, the father argues that she is
"unfit" to take care of their son; hence, for "compelling reasons," he must be awarded custody
of the child.

Article 213 of the Family Code31 provides:

"ART. 213. 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."

This Court has held that when the parents are separated, legally or otherwise, the foregoing
provision governs the custody of their child. 32 Article 213 takes its bearing from Article 363 of
the Civil Code, which reads:

"Art. 363. 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."(Italics supplied)

The general rule that children under seven years of age shall not be separated from their
mother finds its raison d etre in the basic need of minor children for their mother's loving
care.33 In explaining the rationale for Article 363 of the Civil Code, the Code Commission
stressed thus:

"The general rule is recommended in order to avoid a tragedy where a mother has seen her
baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of
her child of tender age. The exception allowed by the rule has to be for 'compelling reasons' for
the good of the child: those cases must indeed be rare, if the mother's heart is not to be unduly
hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative)
divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction
will not have any effect upon the baby who is as yet unable to understand the situation."
(Report of the Code Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential
Decree No. 603).34 Article 17 of the same Code is even more explicit in providing for the child's
custody under various circumstances, specifically in case the parents are separated. It clearly
mandates that "no child under five years of age shall be separated from his mother, unless the
court finds compelling reasons to do so." The provision is reproduced in its entirety as follows:

"Art. 17. Joint Parental Authority. 'The father and the mother shall exercise jointly just and
reasonable parental authority and responsibility over their legitimate or adopted children. In
case of disagreement, the father's decision shall prevail unless there is a judicial order to the
contrary.

"In case of the absence or death of either parent, the present or surviving parent shall continue
to exercise parental authority over such children, unless in case of the surviving parent's
remarriage, the court for justifiable reasons, appoints another person as guardian.

"In case of separation of his parents, no child under five years of age shall be separated from his
mother, unless the court finds compelling reasons to do so." (Italics supplied)

The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is
unmistakable from the language of these provisions that Article 211 35 was derived from the first
sentence of the aforequoted Article 17; Article 212, 36 from the second sentence; and Article
213,37 save for a few additions, from the third sentence. It should be noted that the Family Code
has reverted to the Civil Code provision mandating that a child below seven years should not be
separated from the mother.38

Mandatory Character of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in Article 363 of the Civil
Code and the observations made by the Code Commission underscore the mandatory character
of the word.40 Holding in that case that it was a mistake to deprive the mother of custody of her
two children, both then below the age of seven, the Court stressed:

"[Article 363] prohibits in no uncertain terms the separation of a mother and her child below
seven years, unless such a separation is grounded upon compelling reasons as determined by a
court."41

In like manner, the word "shall" in Article 213 of the Family Code and Section 6 42 of Rule 99 of
the Rules of Court has been held to connote a mandatory character. 43 Article 213 and Rule 99
similarly contemplate a situation in which the parents of the minor are married to each other,
but are separated by virtue of either a decree of legal separation or a de facto separation. 44 In
the present case, the parents are living separately as a matter of fact.

The Best Interest of the Child a Primary Consideration

The Convention on the Rights of the Child provides that "[i]n 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."45

The principle of "best interest of the child" pervades Philippine cases involving adoption,
guardianship, support, personal status, minors in conflict with the law, and child custody. In
these cases, it has long been recognized that in choosing the parent to whom custody is given,
the welfare of the minors should always be the paramount consideration. 46 Courts are
mandated to take into account all relevant circumstances that would have a bearing on the
children's well-being and development. Aside from the material resources and the moral and
social situations of each parent, other factors may also be considered to ascertain which one
has the capability to attend to the physical, educational, social and moral welfare of the
children.47 Among these factors are the previous care and devotion shown by each of the
parents; their religious background, moral uprightness, home environment and time
availability; as well as the children's emotional and educational needs

Tender-Age Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is
to be preferred in awarding custody of children under the age of seven. The caveat in Article
213 of the Family Code cannot be ignored, except when the court finds cause to order
otherwise.48

The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome
only by compelling evidence of the mother's unfitness. The mother has been declared
unsuitable to have custody of her children in one or more of the following instances: neglect,
abandonment, unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a communicable disease. 49

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to
deprive Joycelyn of custody. It has indeed been held that under certain circumstances, the
mother's immoral conduct may constitute a compelling reason to deprive her of custody. 50

But sexual preference or moral laxity alone does not prove parental neglect or incompetence.
Not even the fact that a mother is a prostitute or has been unfaithful to her husband would
render her unfit to have custody of her minor child. 51 To deprive the wife of custody, the
husband must clearly establish that her moral lapses have had an adverse effect on the welfare
of the child or have distracted the offending spouse from exercising proper parental care. 52

To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly living
with her brother-in-law, the child's uncle. Under that circumstance, the Court deemed it in the
nine-year-old child's best interest to free her "from the obviously unwholesome, not to say
immoral influence, that the situation in which the mother ha[d] placed herself might create in
[the child's] moral and social outlook."54
In Espiritu v. CA,55 the Court took into account psychological and case study reports on the child,
whose feelings of insecurity and anxiety had been traced to strong conflicts with the mother. To
the psychologist the child revealed, among other things, that the latter was disturbed upon
seeing "her mother hugging and kissing a 'bad' man who lived in their house and worked for her
father." The Court held that the "illicit or immoral activities of the mother had already caused
the child emotional disturbances, personality conflicts, and exposure to conflicting moral values
x x x."

Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that
Joycelyn was a lesbian. He must also demonstrate that she carried on her purported
relationship with a person of the same sex in the presence of their son or under circumstances
not conducive to the child's proper moral development. Such a fact has not been shown here.
There is no evidence that the son was exposed to the mother's alleged sexual proclivities or
that his proper moral and psychological development suffered as a result.

Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her
May 17, 2002 Order that she had found the "reason stated by [Crisanto] not to be
compelling"56 as to suffice as a ground for separating the child from his mother. The judge made
this conclusion after personally observing the two of them, both in the courtroom and in her
chambers on April 16, 2002, and after a chance to talk to the boy and to observe him firsthand.
This assessment, based on her unique opportunity to witness the child's behavior in the
presence of each parent, should carry more weight than a mere reliance on the records. All
told, no compelling reason has been adduced to wrench the child from the mother's custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ
of habeas corpus and the preliminary mandatory injunction prayed for by Crisanto have no leg
to stand on. A writ of habeas corpus may be issued only when the "rightful custody of any
person is withheld from the person entitled thereto," 57 a situation that does not apply here.

On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be
granted, because Crisanto's right to custody has not been proven to be "clear and
unmistakable."58 Unlike an ordinary preliminary injunction, the writ of preliminary mandatory
injunction is more cautiously regarded, since the latter requires the performance of a particular
act that tends to go beyond the maintenance of the status quo. 59 Besides, such an injunction
would serve no purpose, now that the case has been decided on its merit

[G.R. No. 114742. July 17, 1997]

CARLITOS E. SILVA, Petitioner, v. HON. COURT OF APPEALS and SUZANNE T.

GONZALES, Respondents.
 DECISION

VITUG, J.:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see
to their proper upbringing and safeguard their best interest and welfare. This authority and
responsibility may not be unduly denied the parents; neither may it be renounced by them.
Even when the parents are estranged and their affection for each other is lost, the attachment
and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts
allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-
being of the child.

The issue before us is not really a question of child custody; instead, the case merely concerns
the visitation right of a parent over his children which the trial court has adjudged in favor of
petitioner by holding that he shall have visitorial rights to his children during Saturdays and/or
Sundays, but in no case (could) he take out the children without the written consent of the
mother x x x." The visitation right referred to is the right of access of a noncustodial parent to
his or her child or children.3chanroblesvirtuallawlibrary

There is, despite a dearth of specific legal provisions, enough recognition on

the inherent and natural right of parents over their children. Article 150 of the Family Code
expresses that "(f)amily relations include those x x x (2) (b)etween parents and children; x x x."
Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of
parents and those exercising parental authority to, among other things, keep children in their
company and to give them love and affection, advice and counsel, companionship and
understanding. The Constitution itself speaks in terms of the "natural and primary rights of
parents in the rearing of the youth. 4 There is nothing conclusive to indicate that these
provisions are meant to solely address themselves to legitimate relationships. Indeed, although
in varying degrees, the laws on support and successional rights, by way of examples, clearly go
beyond the legitimate members of the family and so explicitly encompass illegitimate
relationships as well.5 Then, too, and most importantly, in the declaration of nullity of
marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family
Code provides for appropriate visitation rights to parents who are not given custody of their
children.

There is no doubt that in all cases involving a child, his interest and welfare is always the
paramount consideration. The Court shares the view of the Solicitor General, who has
recommended due course to the petition, that a few hours spent by petitioner with the
children, however, could not all be that detrimental to the children. Similarly, what the trial
court has observed is not entirely without merit; thus:

"The allegations of respondent against the character of petitioner, even assuming as true,
cannot be taken as sufficient basis to render petitioner an unfit father. The fears expressed by
respondent to the effect that petitioner shall be able to corrupt and degrade their children once
allowed to even temporarily associate with petitioner is but the product of respondent's
unfounded imagination, for no man, bereft of all moral persuasions and goodness, would ever
take the trouble and expense in instituting a legal action for the purpose of seeing his
illegitimate children. It can just be imagined the deep sorrows of a father who is deprived of his
children of tender ages."6chanroblesvirtuallawlibrary

The Court appreciates the apprehensions of private respondent and their well-meant concern
for the children; nevertheless, it seems unlikely that petitioner would have ulterior motives or
undue designs more than a parents natural desire to be able to call on, even if it were only on
brief visits, his own children. The trial court, in any case, has seen it fit to understandably
provide this precautionary measure, i.e., "in no case (can petitioner) take out the children
without the written consent of the mother."

EN BANC

G.R. No. L-14414 April 27, 1960

SEVERINO SALEN and ELENA SALBANERA, Plaintiffs-Appellants, vs. JOSE BALCE, Defendant-

Appellee.

Marciano C. Dating, Jr. for appellants.

Severino Balce for appellee.

BAUTISTA ANGELO, J.:

While we agree with the theory that, as a rule, the civil liability arising from a crime shall be
governed by the provisions of the Revised Penal Code, we disagree with the contention that the
subsidiary liability of persons for acts of those who are under their custody should likewise be
governed by the same Code even in the absence of any provision governing the case, for that
would leave the transgression of certain right without any punishment or sanction in the law.
Such would be the case if we would uphold the theory of appellee as sustained by the trial
court.chanroblesvirtualawlibrary chanrobles virtual law library

It is true that under Article 101 of the Revised Penal Code, a father is made civilly liable for the
acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, over
9 but under 15 years of age, who act without discernment, unless it appears that there is no
fault or negligence on his part. This is because a son who commits the act under any of those
conditions is by law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised
Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil
liability to the person who has the deliquent minor under his legal authority or control. But a
minor over 15 who acts with discernment is not exempt from criminal liability, for which reason
the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that
case, resort should be had to the general law which is our Civil
Code.chanroblesvirtualawlibrary chanrobles virtual law library

The particular law that governs this case is Article 2180, the pertinent portion of which
provides: "The father and, in case of his death or incapacity, the mother, are responsible for
damages caused by the minor children who lived in their company." To hold that this provision
does not apply to the instant case because it only covers obligations which arise from quasi-
delicts and not obligations which arise from criminal offenses, would result in the absurdity that
while for an act where mere negligence intervenes the father or mother may stand subsidiarily
liable for the damage caused by his or her son, no liability would attach if the damage is caused
with criminal intent. Verily, the void that apparently exists in the Revised Penal Code is
subserved by this particular provision of our Civil Code, as may be gleaned from some recent
decisions of this Court which cover equal or identical
cases.chanroblesvirtualawlibrary chanrobles virtual law library

A case in point is Exconde vs. Capuno, 101 Phil., 843, the facts of which are as follows:

Dante Capuno, a minor of 15 years of age, lives in the company of his father, Delfin Capuno. He
is a student of the Balintawak Elementary School in the City of San Pablo and a member of the
Boy Scout Organization of his school. On Marcy 31, 1949, on the occasion of a certain parade in
honor of Dr. Jose Rizal in the City of San Pablo, Dante Capuno was one of those instructed by
the City School Supervisor to join the parade. From the school, Dante Capuno, together with
other students, boarded a jeep. When the jeep started to run, Dante Capuno took hold of the
wheel and drove it while the driver sat on his left side. They have not gone far when the jeep
turned turtle and two of its passengers, Amando Ticson and Isidro Caperina died as a
consequence. The corresponding criminal action for double homicide through reckless
imprudence was instituted against Dante Capuno. During the trial, Sabina Exconde, as mother
of the deceased Isidro Caperina, reserved her right to bring a separate civil action for damages
against the accused. Dante Capuno was found guilty of the criminal offense charged against
him. In line with said reservation of Sabina Exconde, the corresponding civil action for damages
was filed against Delfin Capuno, Dante Capuno and others.

In holding Delfin Capuno jointly and severally liable with his minor son Dante Capuno arising
from the criminal act committed by the latter, this Court made the following ruling:

The civil liability which the law imposes upon the father and, in case of his death or incapacity,
the mother, for any damages that may be caused by the minor children who live with them, is
obvious. This is a necessary consequence of the parental authority they exercise over them
which imposes upon the parents the "duty of supporting them, keeping them in their company,
educating them in proportion to their means", while, on the other hand, gives them the "right
to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only
way by which they can relieved themselves of this liability is if they prove that they exercised all
the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph,
Spanish Civil Code.) This defendants failed to prove.

Another case in point is Araneta vs. Arreglado 104 Phil., 524; 55 Off. Gaz. [9] 1961. The facts of
this case are as follows:

On March 7, 1951, while plaintiff Benjamin Araneta was talking with the other students of the
Ateneo de Manila while seated atop a low ruined wall bordering the Ateneo grounds along
Dakota Street, in the City of Manila, Dario Arreglado, a former student of the Ateneo, chanced
to pass by. Those on the wall called Dario and conversed with him, and in the course of their
talk, twitted him on his leaving the Ateneo and enrolling in the De La Salle College. Apparently,
Arreglado resented the banter and suddenly pulling from his pocket a Japanese Luger pistol
(licensed in the name of his father Juan Arreglado), fired the same at Araneta, hitting him in the
lower jaw, causing him to drop backward, bleeding profusely. Helped by his friends, the injured
lad was taken first to the school infirmary and later to the Singian Hospital, where he lay
hovering between life and death for three days. The vigor of youth came to his rescue; he
rallied and after sometime finally recovered, the gunshot would left him with a degenerative
injury to the jawbone (mandible) and a scar in the lower portion of the face, where the bullet
had plowed through. The behavior of Benjamin was likewise affected, he becoming inhibited
and morose after leaving the hospital.

Dario Arreglado was indicted for frustrated homicide and pleaded guilty, but in view of his
youth, he being only 14 years of age, the court suspended the proceedings as prescribed by
Article 80 of the Revised Penal Code. Thereafter, an action was instituted by Araneta and his
father against Juan Arreglado, his wife, and their son Dario, to recover material, moral and
exemplary damages. The court of first instance, after trial, sentenced the Arreglados to pay
P3,943.00 as damages and attorney's fees. From this decision, the Araneta appealed in view of
the meager amount of indemnity awarded. This Court affirmed the decision but increased the
indemnity to P18,000.00. This is a typical case of parental subsidiary liability arising from the
criminal act of a minor son.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the decision appealed from is reversed. Judgement is hereby rendered ordering
appellee to pay appellants the sum of P2,000.00, with legal interest thereon from the filing of
the complaint, and the costs.chanroblesvirtua