ENOC, CLIFFORD R.

JD – 1 December 7, 2020
Persons and Family Relations
Atty. Rosalyn Cesar

Seatwork No. 1

Under the Family Code of the Philippines the fact that a right to be supported is recognized in favor
of the person to be supported such recognition of right does not automatically entitle him to receive
support as the obligation to give support shall be demandable from the time the person who has a
right to receive the same needs it for maintenance and support will not be paid except from the date
it is extra-judicially demanded. (Art. 203, [par. 1], Family Code). Appropriately, therefore, the right to
demand support arises from imperative necessity, without which it cannot be demanded, and the
law presumes that such necessity does not exist unless support is demanded. (Jocson, et al. vs. Empire
Insurance Co., et al., 50 O.G. 2628).

As a general rule, support includes whatever is necessary to keep a person alive. This is highlighted
by the term “indispensable” in Article 194 which states:

“Support compromises everything indispensable for sustenance, dwelling, clothing, medical

attendance, education and transportation, in keeping with the financial capacity of the family.”

The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place of
work. (290a).

In accordance with existing jurisprudence, even an unborn child is entitled to support. This is so,
because a conceived child, although as yet unborn, is given by law a provisional personality of its
own for purposes favorable to it and correspondingly, the right to support from its progenitors, even
if the said child is only “en ventre de sa mere;” just as a conceived child, even if as yet unborn, may
receive donations under Article 742, New Civil Code. (Quimiguing vs. Icao, 34 SCRA 132).

Persons who are obliged to support each other, Article 195 provides, thus:
“Subject to the provisions of the succeeding articles, the following are obliged to support each other
to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the
latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the
latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood (291a)”

Insofar as ascendants and descendants are concerned, they are mutually bound to support each
other, but in Castillo vs. Castillo, 39 O.G. No. 37, March 27, 1941, p. 968, it was ruled that if the
mother brought the child to the custody of another when he was only two years old, and since then,
never took care of the child, abandoning the same, the mother relinquishes the right to be
supported and parental care. [Persons and Family Relations, E Vicent S. Albano, p. 681]
The law sets the order of the persons upon whom the liability of giving support devolves. Hence, in
the presence of the spouse, the descendants nearest in degree are not obliged to give support. In
the same vein, the ascendants nearest in degree shall be obliged to give support only in the absence
of or in case of failure or refusal to give support by the descendants in the nearest degree.

Support devolves upon the following persons as stated in Article 199 of the Family Code, thus:

“Whenever two or more persons are obliged to give support, the liability shall devolve upon the
following persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)”

If a person who is married has ascendants, or descendants whether legitimate or illegitimate, or

brothers and sisters, and he is obliged to support them, such support shall come from the separate
properties of such spouse. If he has no separate properties, the absolute community or conjugal
partnership shall advance the support. Upon the liquidation of the absolute community of property
or the conjugal partnership, such advances shall be deducted from the share of such spouse. The
reason for the law is that there is no obligation of the lawful spouse to support the children of the
other spouse with another person, unless they have been adopted by them. If that is so, the
properties of the husband and wife are not bound to answer for their support.

The law is in conformity with Article 49 of the Family Code mandating that during the pendency of
an action for annulment or declaration of nullity of the marriage, the court shall provide for the
support of the spouses and the children. The same is true in Article 62 in cases of legal separation.
The reason for the law is that, of utmost consideration is the welfare, moral or maternal, of the
children. The support shall come from the conjugal properties or the absolute community of
properties.

The support given is known as support pendente lite, but the moment there is declaration of nullity
of the marriage, the obligation to support and the right to be supported cease to exist. The reason is
that, after annulment or declaration of nullity of the marriage, the relationship ceases to exist. But in
legal separation, the court may still order the guilty spouse to support the other, but it is
discretionary on the part of the court and as such, it cannot be demanded as a matter of right.

ARTICLE 200. When the obligation to give support falls upon two or more persons, the payment of
the same shall be divided between them in proportion to the resources of each.

However, in case of urgent need and by special circumstances, the judge may order only one of them
to furnish the support provisionally, without prejudice to his right to claim from the other obligors the
share due from them.

When two or more recipients at the same time claim support from one and the same person legally
obliged to give it, should the latter not have sufficient means to satisfy all claims, the order
established in the preceding article shall be followed, unless the concurrent obligees should be the
spouse and a child subject to parental authority, in which case the child shall be preferred. (295a)
Pursuant to Article 201, the demand for support of the recipient is always tempered by the financial
resources or means of the giver, thus:

“Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in
proportion to the resources or means of the giver and to the necessities of the recipient. (296a)

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased
proportionately, according to the reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to furnish the same.”

The obligation to provide support arising from parental authority ends upon the emancipation of the
child, the same obligation arising from spousal and general familial ties ideally lasts during the
obligee's lifetime. Also, while parental authority under Title IX (and the correlative parental rights)
pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to
provide legal support passes on to ascendants not only upon default of the parents but also for the
latter's inability to provide sufficient support.

Anything obtained by way of support necessarily implies provisions made for the survival and well-
being of the recipient. To deprive such recipient of these provisions will clearly be prejudicial to his
or her very existence. Hence, the law makes it very clear that the right to receive support and the
money or property obtained as such support cannot be made to satisfy any judgment against the
recipient. It cannot be attached nor be subject to execution.

However, in case of contractual support or that given by will, the excess in amount beyond that
required for legal support shall be subject to levy on attachment or execution (Article 208 of the
Family Code).

Parental authority or patria potestas in Roman Law is the juridical institution whereby parents
rightfully assume control and protection of their unemancipated children to the extent required by
the latter’s needs. It 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.’” (Santos, Sr. vs. CA, et al., G.R. No. 113054, March 16, 1995, 59 SCAD 672).

Parental authority includes caring for and rearing the children for civic consciousness and efficiency
and the development of their moral, mental and physical character and well-being. The father and
the mother shall jointly exercise parental authority over the persons of their common children. Even
the remarriage of the surviving parent shall not affect the parental authority over the children,
unless the court appoints another person to be the guardian of the person or property of the
children. (In re Lim, G.R. Nos. 168992-93, [May 21, 2009], 606 PHIL 82-94)

When the child reaches the age of emancipation — that is, when he attains the age of majority or 18
years of age— emancipation terminates parental authority over the person and property of the
child, who shall then be qualified and responsible for all acts of civil life.

Under the so-called parental preference rule, a natural parent, father or mother, as the case may
be, who is of good character and a proper person to have the custody of the child and is reasonably
able to provide for such child, ordinarily is entitled to the custody as against all persons. Accordingly,
such parents are entitled to the custody of their children as against foster or prospective adoptive
parents; and such entitlement applies also as against other relatives of the child, including
grandparents, or as against an agency or institution (pp. 207 & 208, Vol. 67A C.J.S.).

It has been an established rule that the preference of a child is only one factor to be considered, and
it is not controlling, decisive, or determinative. Thus, notwithstanding the preference, the court has
a discretion to determine the question of custody, and it is not error for the court to refuse to
discuss the custody issue with the child. The rights of a parent will not be disregarded in order to
gratify the mere wishes of a child where a parent is found to be a proper person to be entrusted
with the custody of a child (pp. 231-232, Vol. 67A C.J.S.).

The law recognizes the joint parental authority of parents over their children. They are now in equal
footing, except that if there is a disagreement, still, the father’s decision shall prevail, unless there is
a judicial order to the contrary. In matters of the physical, moral, and educational development of
the child, their authority is joint. There are, however, instances where the law recognizes the
preferential authority of the father like:

(1) Article 225 of the Family Code which provides for the joint exercise of guardianship over a
minor child’s properties. But in case of conflict, the decision of the father shall prevail,
except if there is a judicial order to the contrary;
(2) In cases where the child gets married, but needs the consent of the parents, Article 14 of the
Family Code provides that the father is preferred to that of the mother.

If the child is adopted by both parents, there is joint adoption. Under the law, there are two (2) basic
duties of the children toward their parents, like:

(1) to obey their parents as long as they are under parental authority;
(2) to observe respect and reverence toward their parents.

In Maternal Preference Rule, Article 213 of the Family Code enunciates the rule that no child below
the age of seven years shall be separated from the mother, except for compelling reasons. The
reason for the law is that the welfare of the child is always given priority. Insanity may be considered
a compelling reason to separate the child from the mother. But mere unfaithfulness to her husband
may not be a ground. Even prostitution is not.

In all questions relating to the child, his welfare is paramount. This means that the best interest of
the child can override procedural rules and even the rights of parents to the custody of their
children. Since the very life and existence of the minor is at stake and the child is in an age where she
can exercise an intelligent choice, the courts can do no less than respect, enforce, and give meaning
and substance to that choice and uphold her right to live in an atmosphere conducive to her physical
and moral, as well as intellectual development. (Luna vs. CA, 137 SCRA 7).

Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

“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. “

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.

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.

If there is judicial separation between the spouses, the mother takes sole custody under the law if
the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends
the joint custody regime for (1) children under seven of (2) separated or divorced spouses.

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to
judicial custodial agreements based on its text that "No child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise." To limit
this provision's enforceability to court sanctioned agreements while placing private agreements
beyond its reach is to sanction a double standard in custody regulation of children under seven years
old of separated parents. This effectively empowers separated parents, by the simple expedient of
avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of
her children under seven years of age "to avoid a tragedy where a mother has seen her baby torn
away from her." This ignores the legislative basis that "[n]o man can sound the deep sorrows of a
mother who is deprived of her child of tender age." (Dacasin v. Dacasin, G.R. No. 168785, [February 5, 2010],
625 PHIL 494-513)

Pursuant to Article 214 of the Family Code. In Santos, Sr. vs. Court of Appeals, this Court ruled: "The
law vests on the father and mother joint parental authority over the persons of their common
children. In case of absence or death of either parent, the parent present shall continue exercising
parental authority. “

Only in case of the parents' death, absence or unsuitability may substitute parental authority be
exercised by the surviving grandparent."

The surviving grandparent, can exercise substitute parental authority only in case of death, absence
or unsuitability of respondent.

Under Article 218 of the Family Code, the following shall have special parental authority over a
minor child while under their supervision, instruction or custody:

(1) the school, its administrators and teachers; or

(2) the individual, entity or institution engaged in child care.

This special parental authority and responsibility applies to all authorized activities, whether inside
or outside the premises of the school, entity or institution. Thus, such authority and responsibility
applies to field trips, excursions and other affairs of the pupils and students outside the school
premises whenever authorized by the school or its teachers. (St. Mary's Academy v. Carpitanos, G.R. No.
143363, [February 6, 2002], 426 PHIL 878-887)

Article 228 of the Family Code enumerates the Parental authority terminates permanently:

(1) Upon the death of the parents;

(2) Upon the death of the child; or
 (3) Upon emancipation of the child. (327a)

Also, in Article 229, unless subsequently revived by a final judgment, parental authority also
terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority. (327a)

The grounds for suspension or temporary termination of Parental Authority clearly explains and
enumerated in Article 230 and Article 231:

ARTICLE 230. Parental authority is suspended upon conviction of the parent or the person exercising
the same of a crime which carries with it the penalty of civil interdiction. The authority is
automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.
(330a)

ARTICLE 231. The court in an action filed for the purpose in a related case may also suspend parental
authority if the parent or the person exercising the same:

(1) Treats the child with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to include cases which have resulted from culpable
negligence of the parent or the person exercising parental authority. If the degree of seriousness so
warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental
authority or adopt such other measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived in a case filed for
the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will
not be repeated. (33a)