G.R. No.

102316 June 30, 1997

VALENZUELA HARDWOOD AND INDUSTRIAL SUPPLY INC., petitioner,

vs.
COURT OF APPEALS AND SEVEN BROTHERS SHIPPING CORPORATION, respondents.

PANGANIBAN, J.:

Is a stipulation in a charter party that the "(o)wners shall not be responsible for loss, split, short-landing, breakages
and any kind of damages to the cargo" 1 valid? This is the main question raised in this petition for review assailing
the Decision of Respondent Court of Appeals 2 in CA-G.R. No. CV-20156 promulgated on October 15, 1991. The
Court of Appeals modified the judgment of the Regional Trial Court of Valenzuela, Metro Manila, Branch 171, the
dispositive portion of which reads:

WHEREFORE, Judgment is hereby rendered ordering South Sea Surety and Insurance Co., Inc. to
pay plaintiff the sum of TWO MILLION PESOS (P2,000,000.00) representing the value of the policy
of the lost logs with legal interest thereon from the date of demand on February 2, 1984 until the
amount is fully paid or in the alternative, defendant Seven Brothers Shipping Corporation to pay
plaintiff the amount of TWO MILLION PESOS (2,000,000.00) representing the value of lost logs plus
legal interest from the date of demand on April 24, 1984 until full payment thereof; the reasonable
attorney's fees in the amount equivalent to five (5) percent of the amount of the claim and the costs
of the suit.

Plaintiff is hereby ordered to pay defendant Seven Brothers Shipping Corporation the sum of TWO
HUNDRED THIRTY THOUSAND PESOS (P230,000.00) representing the balance of the stipulated
freight charges.

Defendant South Sea Surety and Insurance Company's counterclaim is hereby dismissed.

In its assailed Decision, Respondent Court of Appeals held:

WHEREFORE, the appealed judgment is hereby AFFIRMED except in so far (sic) as the liability of
the Seven Brothers Shipping Corporation to the plaintiff is concerned which is hereby REVERSED
and SET ASIDE. 3

The Facts

The factual antecedents of this case as narrated in the Court of Appeals Decision are as follows:

It appears that on 16 January 1984, plaintiff (Valenzuela Hardwood and Industrial Supply, Inc.)
entered into an agreement with the defendant Seven Brothers (Shipping Corporation) whereby the
latter undertook to load on board its vessel M/V Seven Ambassador the former's lauan round logs
numbering 940 at the port of Maconacon, Isabela for shipment to Manila.

On 20 January 1984, plaintiff insured the logs against loss and/or damage with defendant South Sea
Surety and Insurance Co., Inc. for P2,000,000.00 and the latter issued its Marine Cargo Insurance
Policy No. 84/24229 for P2,000,000.00 on said date.

On 24 January 1984, the plaintiff gave the check in payment of the premium on the insurance policy
to Mr. Victorio Chua.

In the meantime, the said vessel M/V Seven Ambassador sank on 25 January 1984 resulting in the
loss of the plaintiff's insured logs.
 On 30 January 1984, a check for P5,625.00 (Exh. "E") to cover payment of the premium and
documentary stamps due on the policy was tendered due to the insurer but was not accepted.
Instead, the South Sea Surety and Insurance Co., Inc. cancelled the insurance policy it issued as of
the date of the inception for non-payment of the premium due in accordance with Section 77 of the
Insurance Code.

On 2 February 1984, plaintiff demanded from defendant South Sea Surety and Insurance Co., Inc.
the payment of the proceeds of the policy but the latter denied liability under the policy. Plaintiff
likewise filed a formal claim with defendant Seven Brothers Shipping Corporation for the value of the
lost logs but the latter denied the claim.

After due hearing and trial, the court a quo rendered judgment in favor of plaintiff and against
defendants. Both defendants shipping corporation and the surety company appealed.

Defendant-appellant Seven Brothers Shipping Corporation impute (sic) to the court a quo the
following assignment of errors, to wit:

A. The lower court erred in holding that the proximate cause of the sinking of the vessel Seven
Ambassadors, was not due to fortuitous event but to the negligence of the captain in stowing and
securing the logs on board, causing the iron chains to snap and the logs to roll to the portside.

B. The lower court erred in declaring that the non-liability clause of the Seven Brothers Shipping
Corporation from logs (sic) of the cargo stipulated in the charter party is void for being contrary to
public policy invoking article 1745 of the New Civil Code.

C. The lower court erred in holding defendant-appellant Seven Brothers Shipping Corporation liable
in the alternative and ordering/directing it to pay plaintiff-appellee the amount of two million
(2,000,000.00) pesos representing the value of the logs plus legal interest from date of demand until
fully paid.

D. The lower court erred in ordering defendant-appellant Seven Brothers Shipping Corporation to
pay appellee reasonable attorney's fees in the amount equivalent to 5% of the amount of the claim
and the costs of the suit.

E. The lower court erred in not awarding defendant-appellant Seven Brothers Corporation its
counter-claim for attorney's fees.

F. The lower court erred in not dismissing the complaint against Seven Brothers Shipping
Corporation.

Defendant-appellant South Sea Surety and Insurance Co., Inc. assigns the following errors:

A. The trial court erred in holding that Victorio Chua was an agent of defendant-appellant South Sea
Surety and Insurance Company, Inc. and likewise erred in not holding that he was the representative
of the insurance broker Columbia Insurance Brokers, Ltd.

B. The trial court erred in holding that Victorio Chua received compensation/commission on the
premiums paid on the policies issued by the defendant-appellant South Sea Surety and Insurance
Company, Inc.

C. The trial court erred in not applying Section 77 of the Insurance Code.

D. The trial court erred in disregarding the "receipt of payment clause" attached to and forming part
of the Marine Cargo Insurance Policy No. 84/24229.

E. The trial court in disregarding the statement of account or bill stating the amount of premium and
documentary stamps to be paid on the policy by the plaintiff-appellee.
 F. The trial court erred in disregarding the endorsement of cancellation of the policy due to non-
payment of premium and documentary stamps.

G. The trial court erred in ordering defendant-appellant South Sea Surety and Insurance Company,
Inc. to pay plaintiff-appellee P2,000,000.00 representing value of the policy with legal interest from 2
February 1984 until the amount is fully paid,

H. The trial court erred in not awarding to the defendant-appellant the attorney's fees alleged and
proven in its counterclaim.

The primary issue to be resolved before us is whether defendants shipping corporation and the
surety company are liable to the plaintiff for the latter's lost logs. 4

The Court of Appeals affirmed in part the RTC judgment by sustaining the liability of South Sea Surety and
Insurance Company ("South Sea"), but modified it by holding that Seven Brothers Shipping Corporation ("Seven
Brothers") was not liable for the lost cargo. 5 In modifying the RTC judgment, the respondent appellate court
ratiocinated thus:

It appears that there is a stipulation in the charter party that the ship owner would be exempted from
liability in case of loss.

The court a quo erred in applying the provisions of the Civil Code on common carriers to establish
the liability of the shipping corporation. The provisions on common carriers should not be applied
where the carrier is not acting as such but as a private carrier.

Under American jurisprudence, a common carrier undertaking to carry a special cargo or chartered
to a special person only, becomes a private carrier.

As a private carrier, a stipulation exempting the owner from liability even for the negligence of its
agent is valid (Home Insurance Company, Inc. vs. American Steamship Agencies, Inc., 23 SCRA
24).

The shipping corporation should not therefore be held liable for the loss of the logs. 6

South Sea and herein Petitioner Valenzuela Hardwood and Industrial Supply, Inc. ("Valenzuela") filed separate
petitions for review before this Court. In a Resolution dated June 2, 1995, this Court denied the petition of South
Sea. 7 There the Court found no reason to reverse the factual findings of the trial court and the Court of Appeals that
Chua was indeed an authorized agent of South Sea when he received Valenzuela's premium payment for the
marine cargo insurance policy which was thus binding on the insurer. 8

The Court is now called upon to resolve the petition for review filed by Valenzuela assailing the CA Decision which
exempted Seven Brothers from any liability for the lost cargo.

The Issue

Petitioner Valenzuela's arguments resolve around a single issue: "whether or not respondent Court (of Appeals)
committed a reversible error in upholding the validity of the stipulation in the charter party executed between the
petitioner and the private respondent exempting the latter from liability for the loss of petitioner's logs arising from
the negligence of its (Seven Brothers') captain." 9

The Court's Ruling

The petition is not meritorious.

Validity of Stipulation is Lis Mota

The charter party between the petitioner and private respondent stipulated that the "(o)wners shall not be
responsible for loss, split, short-landing, breakages and any kind of damages to the cargo." 10 The validity of this
stipulation is the lis mota of this case.

It should be noted at the outset that there is no dispute between the parties that the proximate cause of the sinking
of M/V Seven Ambassadors resulting in the loss of its cargo was the "snapping of the iron chains and the
subsequent rolling of the logs to the portside due to the negligence of the captain in stowing and securing the logs
on board the vessel and not due to fortuitous event." 11 Likewise undisputed is the status of Private Respondent
Seven Brothers as a private carrier when it contracted to transport the cargo of Petitioner Valenzuela. Even the
latter admits this in its petition. 12

The trial court deemed the charter party stipulation void for being contrary to public policy, 13
citing Article 1745 of the
Civil Code which provides:

Art. 1745. Any of the following or similar stipulations shall be considered unreasonable, unjust and
contrary to public policy:

(1) That the goods are transported at the risk of the owner or shipper;

(2) That the common carrier will not be liable for any loss, destruction, or deterioration of the goods;

(3) That the common carrier need not observe any diligence in the custody of the goods;

(4) That the common carrier shall exercise a degree of diligence less than that of a good father of a
family, or of a man of ordinary prudence in the vigilance over the movables transported;

(5) That the common carrier shall not be responsible for the acts or omissions of his or its
employees;

(6) That the common carrier's liability for acts committed by thieves, or of robbers who do not act
with grave or irresistible threat, violence or force, is dispensed with or diminished;

(7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods on
account of the defective condition of the car, vehicle, ship, airplane or other equipment used in the
contract of carriage.

Petitioner Valenzuela adds that the stipulation is void for being contrary to Articles 586 and 587 of the Code of
Commerce 14 and Articles 1170 and 1173 of the Civil Code. Citing Article 1306 and paragraph 1, Article 1409 of the
Civil Code, 15 petitioner further contends that said stipulation "gives no duty or obligation to the private respondent to
observe the diligence of a good father of a family in the custody and transportation of the cargo."

The Court is not persuaded. As adverted to earlier, it is undisputed that private respondent had acted as a private
carrier in transporting petitioner's lauan logs. Thus, Article 1745 and other Civil Code provisions on common carriers
which were cited by petitioner may not be applied unless expressly stipulated by the parties in their charter party. 16

In a contract of private carriage, the parties may validly stipulate that responsibility for the cargo rests solely on the
charterer, exempting the shipowner from liability for loss of or damage to the cargo caused even by the negligence
of the ship captain. Pursuant to Article 1306 17 of the Civil Code, such stipulation is valid because it is freely entered
into by the parties and the same is not contrary to law, morals, good customs, public order, or public policy. Indeed,
their contract of private carriage is not even a contract of adhesion. We stress that in a contract of private carriage,
the parties may freely stipulate their duties and obligations which perforce would be binding on them. Unlike in a
contract involving a common carrier, private carriage does not involve the general public. Hence, the stringent
provisions of the Civil Code on common carriers protecting the general public cannot justifiably be applied to a ship
transporting commercial goods as a private carrier. Consequently, the public policy embodied therein is not
contravened by stipulations in a charter party that lessen or remove the protection given by law in contracts
involving common carriers.
The issue posed in this case and the arguments raised by petitioner are not novel; they were resolved long ago by
this Court in Home Insurance Co. vs. American Steamship Agencies, Inc. 18 In that case, the trial court similarly
nullified a stipulation identical to that involved in the present case for being contrary to public policy based on Article
1744 of the Civil Code and Article 587 of the Code of Commerce. Consequently, the trial court held the shipowner
liable for damages resulting for the partial loss of the cargo. This Court reversed the trial court and laid down,
through Mr. Justice Jose P. Bengzon, the following well-settled observation and doctrine:

The provisions of our Civil Code on common carriers were taken from Anglo-American law. Under
American jurisprudence, a common carrier undertaking to carry a special cargo or chartered to a
special person only, becomes a private carrier. As a private carrier, a stipulation exempting the
owner from liability for the negligence of its agent is not against public policy, and is deemed valid.

Such doctrine We find reasonable. The Civil Code provisions on common carriers should not be
applied where the carrier is not acting as such but as a private carrier. The stipulation in the charter
party absolving the owner from liability for loss due to the negligence of its agent would be void if the
strict public policy governing common carriers is applied. Such policy has no force where the public
at large is not involved, as in this case of a ship totally chartered for the used of a single
party. 19(Emphasis supplied.)

Indeed, where the reason for the rule ceases, the rule itself does not apply. The general public enters into a contract
of transportation with common carriers without a hand or a voice in the preparation thereof. The riding public merely
adheres to the contract; even if the public wants to, it cannot submit its own stipulations for the approval of the
common carrier. Thus, the law on common carriers extends its protective mantle against one-sided stipulations
inserted in tickets, invoices or other documents over which the riding public has no understanding or, worse, no
choice. Compared to the general public, a charterer in a contract of private carriage is not similarly situated. It can —
and in fact it usually does — enter into a free and voluntary agreement. In practice, the parties in a contract of
private carriage can stipulate the carrier's obligations and liabilities over the shipment which, in turn, determine the
price or consideration of the charter. Thus, a charterer, in exchange for convenience and economy, may opt to set
aside the protection of the law on common carriers. When the charterer decides to exercise this option, he takes a
normal business risk.

Petitioner contends that the rule in Home Insurance is not applicable to the present case because it "covers only a
stipulation exempting a private carrier from liability for the negligence of his agent, but it does not apply to a
stipulation exempting a private carrier like private respondent from the negligence of his employee or servant which
is the situation in this case." 20 This contention of petitioner is bereft of merit, for it raises a distinction without any
substantive difference. The case Home Insurance specifically dealt with "the liability of the shipowner for acts or
negligence of its captain and crew" 21 and a charter party stipulation which "exempts the owner of the vessel from
any loss or damage or delay arising from any other source, even from the neglect or fault of the captain or crew or
some other person employed by the owner on
board, for whose acts the owner would ordinarily be liable except for said paragraph." 22 Undoubtedly, Home
Insurance is applicable to the case at bar.

The naked assertion of petitioner that the American rule enunciated in Home Insurance is not the rule in the
Philippines 23 deserves scant consideration. The Court there categorically held that said rule was "reasonable" and
proceeded to apply it in the resolution of that case. Petitioner miserably failed to show such circumstances or
arguments which would necessitate a departure from a well-settled rule. Consequently, our ruling in said case
remains a binding judicial precedent based on the doctrine of stare decisis and Article 8 of the Civil Code which
provides that "(j)udicial decisions applying or interpreting the laws or the Constitution shall form part of the legal
system of the Philippines."

In fine, the respondent appellate court aptly stated that "[in the case of] a private carrier, a stipulation exempting the
owner from liability even for the negligence of its agents is valid." 24

Other Arguments

On the basis of the foregoing alone, the present petition may already be denied; the Court, however, will discuss the
other arguments of petitioner for the benefit and satisfaction of all concerned.
 Articles 586 and 587, Code of Commerce

Petitioner Valenzuela insists that the charter party stipulation is contrary to Articles 586 and 587 of the Code of
Commerce which confer on petitioner the right to recover damages from the shipowner and ship agent for the acts
or conduct of the captain. 25 We are not persuaded. Whatever rights petitioner may have under the aforementioned
statutory provisions were waived when it entered into the charter party.

Article 6 of the Civil Code provides that "(r)ights may be waived, unless the waiver is contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a person with a right recognized by law." As a general rule,
patrimonial rights may be waived as opposed to rights to personality and family rights which may not be made the
subject of waiver. 26 Being patently and undoubtedly patrimonial, petitioner's right conferred under said articles may
be waived. This, the petitioner did by acceding to the contractual stipulation that it is solely responsible or any
damage to the cargo, thereby exempting the private carrier from any responsibility for loss or damage thereto.
Furthermore, as discussed above, the contract of private carriage binds petitioner and private respondent alone; it is
not imbued with public policy considerations for the general public or third persons are not affected thereby.

Articles 1170 and 1173, Civil Code

Petitioner likewise argues that the stipulation subject of this controversy is void for being contrary to Articles 1170
and 1173 of the Civil Code 27 which read:

Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay,
and those who in any manner contravene the tenor thereof, are liable for damages

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and
2201, shall apply.

If the law does not state the diligence which is to be observed in the performance, that which is
expected of a good father of a family shall be required.

The Court notes that the foregoing articles are applicable only to the obligor or the one with an obligation to perform.
In the instant case, Private Respondent Seven Brothers is not an obligor in respect of the cargo, for this obligation to
bear the loss was shifted to petitioner by virtue of the charter party. This shifting of responsibility, as earlier
observed, is not void. The provisions cited by petitioner are, therefore, inapplicable to the present case.

Moreover, the factual milieu of this case does not justify the application of the second paragraph of Article 1173 of
the Civil Code which prescribes the standard of diligence to be observed in the event the law or the contract is
silent. In the instant case, Article 362 of the Code of Commerce 28 provides the standard of ordinary diligence for the
carriage of goods by a carrier. The standard of diligence under this statutory provision may, however, be modified in
a contract of private carriage as the petitioner and private respondent had done in their charter party.

Cases Cited by Petitioner Inapplicable

Petitioner cites Shewaram vs. Philippine Airlines, Inc. 29 which, in turn, quoted Juan Ysmael & Co. vs. Gabino
Barreto & Co. 30 and argues that the public policy considerations stated there vis-a-vis contractual stipulations
limiting the carrier's liability be applied "with equal force" to this case. 31 It also cites Manila Railroad
Co. vs.Compañia Transatlantica 32 and contends that stipulations exempting a party from liability for damages due to
negligence "should not be countenanced" and should be "strictly construed" against the party claiming its
benefit. 33 We disagree.

The cases of Shewaram and Ysmael both involve a common carrier; thus, they necessarily justify the application of
such policy considerations and concomitantly stricter rules. As already discussed above, the public policy
considerations behind the rigorous treatment of common carriers are absent in the case of private carriers. Hence,
the stringent laws applicable to common carriers are not applied to private carries. The case of Manila Railroad is
also inapplicable because the action for damages there does not involve a contract for transportation. Furthermore,
the defendant therein made a "promise to use due care in the lifting operations" and, consequently, it was "bound by
its undertaking"'; besides, the exemption was intended to cover accidents due to hidden defects in the apparatus or
other unforseeable occurrences" not caused by its "personal negligence." This promise was thus constructed to
make sense together with the stipulation against liability for damages. 34 In the present case, we stress that the
private respondent made no such promise. The agreement of the parties to exempt the shipowner from
responsibility for any damage to the cargo and place responsibility over the same to petitioner is the lone stipulation
considered now by this Court.

Finally, petitioner points to Standard Oil Co. of New York vs. Lopez Costelo, 35 Walter A. Smith & Co. vs.Cadwallader
Gibson Lumber Co., 36 N. T . Hashim and Co. vs. Rocha and Co., 37 Ohta Development Co. vs.Steamship
"Pompey" 38 and Limpangco Sons vs. Yangco Steamship Co. 39 in support of its contention that the shipowner be
held liable for damages. 40 These however are not on all fours with the present case because they do not involve a
similar factual milieu or an identical stipulation in the charter party expressly exempting the shipowner form
responsibility for any damage to the cargo.

Effect of the South Sea Resolution

In its memorandum, Seven Brothers argues that petitioner has no cause of action against it because this Court has
earlier affirmed the liability of South Sea for the loss suffered by petitioner. Private respondent submits that
petitioner is not legally entitled to collect twice for a single loss. 41 In view of the above disquisition upholding the
validity of the questioned charter party stipulation and holding that petitioner may not recover from private
respondent, the present issue is moot and academic. It suffices to state that the Resolution of this Court dated June
2, 1995 42 affirming the liability of South Sea does not, by itself, necessarily preclude the petitioner from proceeding
against private respondent. An aggrieved party may still recover the deficiency for the person causing the loss in the
event the amount paid by the insurance company does not fully cover the loss. Article 2207 of the Civil Code
provides:

Art. 2207. If the plaintiff's property has been insured, and he has received indemnity for the
insurance company for the injury or loss arising out of the wrong or breach of contract complained
of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or
the person who has violated the contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency form the
person causing the loss or injury.

WHEREFORE, premises considered, the petition is hereby DENIED for its utter failure to show any reversible error
on the part of Respondent Court. The assailed Decision is AFFIRMED.
G.R. No. 115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,

vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two
children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of
who, between the father and mother, is more suitable and better qualified in helping the children to grow into
responsible, well-adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where
Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local
hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant
status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh,
Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of
husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they
were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United
States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988.

The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed
Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand,
contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to
household expenses.

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the
children and went back to California. She claims, however, that she spent a lot of money on long distance telephone
calls to keep in constant touch with her children.

Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet
completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, co-petitioner
Guillerma Layug and her family.

Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy
against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually
rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-
222, Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition
for a writ of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole
proceedings now reaching this Court.

On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of
visitation to be agreed upon by the parties and to be approved by the Court.

On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring,
reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals
disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and
conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent
Teresita.
We believe that respondent court resolved the question of custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code which reads:

Art. 363. In all questions on the care, custody, education and property of the 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.

and of Article 213 of the Family Code which in turn 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.

The decision under review is based on the report of the Code Commission which drafted Article 213 that a child
below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father
cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals
Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that
a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her
husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action.
(Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)

The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant
facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be
awarded is not a ministerial function to be determined by a simple determination of the age of a minor child.
Whether a child is under or over seven years of age, the paramount criterion must always be the child's interests.
Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the
basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule 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", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the
minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes,
explained its basis in this manner:

. . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose
sight of the basic principle that "in all questions on the care, custody, education and property of
children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for
compelling reasons, even a child under seven may be ordered separated from the mother (do). This
is as it should be, for in the continual evolution of legal institutions, the patria potestas has been
transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the
offspring was virtually a chattel of his parents into a radically different institution, due to the influence
of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig
Pena, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the minor."

As a result, the right of parents to the company and custody of their children is but ancillary to the
proper discharge of parental duties to provide the children with adequate support, education, moral,
intellectual and civic training and development (Civil Code, Art. 356).

(pp. 504-505.)

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.
In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh
birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in
reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent
with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if
the parent thus chosen is unfit to assume parental authority and custodial responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children
and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions
and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically
treated as an arbitrary cut off period and not a guide based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a
result of her character being made a key issue in court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her small child are special in nature, either parent,
whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her
suffering is greater than that of the other parent. 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.

We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to
the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody.

When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to
determine the effects of uprooting her from the Assumption College where she was studying. Four different tests
were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were
very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by
Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and
worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally
emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the
United States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety
arising from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8
recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and
that her welfare will be best served by staying with them (pp. 199-205, Rollo).

At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child
Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for.
Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering
from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for
denial (pp. 206-209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the
petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed.
Considerations involving the choice made by a child must be ascertained at the time that either parent is given
custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody
suffers a future character change and becomes unfit, the matter of custody can always be re-examined and
adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the
good of the child must be determined as of the time that either parent is chosen to be the custodian. At the present
time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe
the father's contention that the children ignored Teresita in court because such an emotional display as described by
Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals
Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What
the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on
the matter.
 And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding,
especially as her conduct and demeanor in the courtroom (during most of the proceedings) or
elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent
temper that tended to corroborate the alleged violence of her physical punishment of the children
(even if only for ordinary disciplinary purposes) and emotional instability, typified by her failure (or
refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC
Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in
turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner
Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which stated
that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were not
substantiated.

The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also
note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by
Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to
support petitioners' position in litigation, because there was then not even an impending possibility of one. That they
were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were
first obtained.

Furthermore, such examinations, when presented to the court must be construed to have been presented not to
sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The
persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters
within their respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali
vs. Abukakar, et al. (17 SCRA 988 [1966]).

The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the
request, not of a public officer or agency of the Government, but of a private litigant, does not
necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to
said documents. Even a non-expert private individual may examine the same, if there are facts
within his knowledge which may help, the court in the determination of said issue. Such examination,
which may properly be undertaken by a non-expert private individual, does not, certainly become
null and void when the examiner is an expert and/or an officer of the NBI.

(pp. 991-992.)

In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185
SCRA 352 [1990]):

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court to decide,
considering the ability and character of the witness, his actions upon the witness stand, the weight
and process of the reasoning by which he has supported his opinion, his possible bias in favor of the
side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and
observation of the matters about which he testifies, and any other matters which reserve to
illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058).
The problem of the credibility of the expert witness and the evaluation of his testimony is left to the
discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of
that discretion.

(p. 359)
It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to
observe their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial
court was correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about
to board a plane when they were off-loaded because there was no required clearance. They were referred to her
office, at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker
Lopez in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The
interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation.
On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was
based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise
her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely
testifying just to support the position of any litigant.

The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder
also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the
interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were
secured because Assumption College wanted an examination of the child for school purposes and not because of
any litigation. She may have been paid to examine the child and to render a finding based on her examination, but
she was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not
even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a
professional of her potential and stature would compromise her professional standing.

Teresita questions the findings of the trial court that:

1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting
marriage with another man.

2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow
NSC employees.

3. She is incapable of providing the children with necessities and conveniences commensurate to
their social standing because she does not even own any home in the Philippines.

4. She is emotionally unstable with ebullient temper.

It is contended that the above findings do not constitute the compelling reasons under the law which would justify
depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been
proved by clear and convincing evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated
from the mother, without considering what the law itself denominates as compelling reasons or relevant
considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no
difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the
obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and
social outlook of [the child] who was in her formative and most impressionable stage . . ."

Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the
difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better
served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is
nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he
has been trying his best to give the children the kind of attention and care which the mother is not in a position to
extend.

The argument that the charges against the mother are false is not supported by the records. The findings of the trial
court are based on evidence.
Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13,
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven
across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The
two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further
that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given
credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious
crime against privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication
that the potential victim is averse to the act. The implication created is that the act would be acceptable if not for the
prior marriage.

More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is
unlikely against a woman who had driven three days and three nights from California, who went straight to the
house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with
him in a relationship which is marital in nature if not in fact.

Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo
and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the
daughter Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and
kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home and the
children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him
and was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is
that letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).

The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling
reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their
clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional
disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to
mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210-
222, Rollo).

Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother
because his job is in the United States while the children will be left behind with their aunt in the Philippines is
misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the
purchase of a steel mill component and various equipment needed by the National Steel Corporation in the
Philippines. Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated
January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent
return to the Philippines (ff.
p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old.
Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a
fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no longer applies as the children are over seven years.
Assuming that the presumption should have persuasive value for children only one or two years beyond the age of
seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody
to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their
emotional growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside,
and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in
Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding
custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special
pronouncement is made as to costs.
SO ORDERED.
G.R. No. 148311. March 31, 2005

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA

HONORATO B. CATINDIG, petitioner.

DECISION

SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her
middle name? This is the issue raised in the instant case.

The facts are undisputed.

On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor illegitimate
child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26,
1994;2that her mother is Gemma Astorga Garcia; that Stephanie has been using her mother’s middle name and
surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie’s middle
name Astorga be changed to "Garcia," her mother’s surname, and that her surname "Garcia" be changed to
"Catindig," his surname.

On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus:

"After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to
the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification
provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the
child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor
Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner’s care and custody of the child since her
birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential
Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga
Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for
civil purposes, shall henceforth be the petitioner’s legitimate child and legal heir. Pursuant to Article 189 of the
Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of
the Rules of Court.

Let copy of this Decision be furnished the National Statistics Office for record purposes.

SO ORDERED."4

On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration 5 praying that Stephanie should be
allowed to use the surname of her natural mother (GARCIA) as her middle name.

On May 28, 2001,6 the trial court denied petitioner’s motion for reconsideration holding that there is no law or
jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name.

Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as
her middle name when she is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption
because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one
adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the
middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the
adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the
middle name "Garcia" (her mother’s surname) avoids the stigma of her illegitimacy; and; (6) her continued use of
"Garcia" as her middle name is not opposed by either the Catindig or Garcia families.

The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be
permitted to use, as her middle name, the surname of her natural mother for the following reasons:

First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother because under Article 189
of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless
hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle
name. What the law does not prohibit, it allows.

Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This
custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed
that "the initial or surname of the mother should immediately precede the surname of the father so that the second
name, if any, will be before the surname of the mother."7

We find merit in the petition.

Use Of Surname Is Fixed By Law –

For all practical and legal purposes, a man's name is the designation by which he is known and called in the
community in which he lives and is best known. It is defined as the word or combination of words by which a person
is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing with him. 8 It is both of personal as well as public
interest that every person must have a name.

The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The
given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other
individuals. The surname or family name is that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the parents for the child, but the surname to which
the child is entitled is fixed by law.9

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an
individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a
married woman or a previously married woman, or a widow, thus:

"Art. 364. Legitimate and legitimated children shall principally use the surname of the father.

Art. 365. An adopted child shall bear the surname of the adopter.

xxx

Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of
the father.

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as ‘Mrs.’

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may
choose to continue employing her former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed
before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with
Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional
name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and descendants, the word ‘Junior’ can be
used only by a son. Grandsons and other direct male descendants shall either:

(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.

x x x"

Law Is Silent As To The Use Of

Middle Name –

As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176 11 of the
Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate Children To
Use The Surname Of Their Father," is silent as to what middle name a child may use.

The middle name or the mother’s surname is only considered in Article 375(1), quoted above, in case there is
identity of names and surnames between ascendants and descendants, in which case, the middle name or the
mother’s surname shall be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code
merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code,
enumerating the legal effects of adoption, is likewise silent on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall
acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of
the adopted to use the surname of the adopters;

x x x"

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that
drafted the Family Code recognized the Filipino custom of adding the surname of the child’s mother as his
middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members
approved the suggestion that the initial or surname of the mother should immediately precede the surname of
the father, thus
"Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the
child because the father’s surname indicates the family to which he belongs, for which reason he would
insist on the use of the father’s surname by the child but that, if he wants to, the child may also use the
surname of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be
written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child
uses the surname of the father and permissive in the case of the surname of the mother.

Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person himself precisely because of
this misunderstanding. He then cited the following example: Alfonso Ponce Enrile’s correct surname is Ponce since
the mother’s surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David’s family name is
Gutierrez and his mother’s surname is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory
on the child to use the surname of the father but he may use the surname of the mother by way of an initial
or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames
since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be
covered in the appropriate chapter.

xxx

Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the
father should always be last because there are so many traditions like the American tradition where they like to use
their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the
Clan name.

xxx

Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they
should say that initial or surname of the mother should immediately precede the surname of the father so
that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really
the Filipino way. The Committee approved the suggestion."12 (Emphasis supplied)

In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters."13Again,
it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for
the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption. 14

The Underlying Intent of

Adoption Is In Favor of the

Adopted Child –

Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the
rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider
adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows
the child with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to
the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that
adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor
the adopted child.18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19 secures
these rights and privileges for the adopted.20
One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and
purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23

Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without discrimination of any kind, including the right to bear the
surname of her father and her mother, as discussed above. This is consistent with the intention of the members
of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or
surname of the mother should immediately precede the surname of the father.

Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s surname (Garcia) as her
middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section
1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at
390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to
both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence,
to allow Stephanie to use her mother’s surname as her middle name will not only sustain her continued loving
relationship with her mother but will also eliminate the stigma of her illegitimacy.

Liberal Construction of

Adoption Statutes In Favor Of

Adoption –

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the
beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary and paramount
consideration,26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.27

Lastly, Art. 10 of the New Civil Code provides that:

"In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right
and justice to prevail."

This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and
justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice
which may apparently be authorized by some way of interpreting the law."28

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use,
as middle name her mother’s surname, we find no reason why she should not be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie
should be allowed to use her mother’s surname "GARCIA" as her middle name.

Let the corresponding entry of her correct and complete name be entered in the decree of adoption.

SO ORDERED.