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Paternity and Filiation

Legitimate Children

• Filiation – nature or adoption (artificial)


• Natural filiation – legitimate or illegitimate

LC – Those born during valid marriage and those born out of artificial insemination
IC – Born out of wedlock or void marriage (except born under Art. 36 void marriage
and Art. 53 – born out of void subsequent marriage because they did not comply
with requirement of registration of decree of annulment – legitimate children)

Children are classified only into legitimate or illegitimate under New Family Code
Illegitimate children were classified into 5 categories under the Civil Code
Now sharing is IC gets ½ of what LC gets from succession

If AI complied with certain conditions it is legitimate:


1. AI previously agreed upon by the husband and the wife (consent must be free
and voluntary)
2. In writing
3. Done before the performance of AI
4. Agreement must be recorded in the OLCR attached to the birth certificate of
the child
• Without consent – illegitimate or if consent was obtained through fraud,
threat, intimidation child is legitimate but has right to impugn legitimacy.

If wife goes through AI using sperm of a 3rd party without consent and knowledge of
husband child is illegitimate unless husband ratifies the AI later.

If wife agreed to AI using the sperm of another man without knowledge and consent
of husband cannot be charged with adultery because there is no sexual intercourse
which is an element of adultery as defined in the RPC.

AI – sperm and egg placed on a test tube or dish treated with a solution then later
injected in the uterine cavity of the wife

What about in vitro fertilization – egg and sperm is mixed and made to develop into
a zygote injected into the uterine cavity of a surrogate mother and not the wife.
Procedure is availed if wife cannot bear the child. – who will own the child? If
surrogate mother refuses to let go of the child and will not accept money anymore.
SC said child belongs to the couple because child came from the sperm and egg of
the couple and surrogate mother is only a carrier. This is a rule adopted by most
states in the US. No case as of yet here in the Philippines.
Grounds to Impugn Legitimacy
(Only husband has the right to impugn legitimacy, on certain cases heirs)
1. Physical impossibility for husband to have sexual intercourse with wife
within first 120 days of the 300 days which immediately preceded the birth
due to:
(Pregnancy normally 9 months (270 days), some instances go to 10 (300
days))
[Ex. Child is born Oct. 30, 2009, 300 days before that would be Dec. 30,
2008. 120 days before would be April 30, 2008. If husband could prove that
they never have SI within Dec.30 to Apr. 30 the presumption is the child is
not of the husband’s. If wife had sex before Dec.30 or after Apr. 30 then it is
presumed not to be his]
[Legal Presumption needed if DNA testing cannot be afforded]
a. Physical Incapacity – complete impotency
b. Living Separately in such a way that SI was impossible
[ex. Husband is not in the Philippines within the period of Dec. 30 to
Apr.30 then wife gave birth on Oct. 30, child cannot be presumed to be
his]
c. Serious Illness which absolutely prevented him from sex.
[ex. Husband was in ICU comatose within Dec. 30 to Apr.30 then wife gave
birth on Oct. 30, child cannot be presumed to be his]

Andal v. Macaraig
Case where husband was suffering from advanced stage of tuberculosis and bed-
ridden already. Legs were already swollen and cannot stand up. Later wife got
pregnant. Husband died and wife gave birth after. Brothers and sisters of deceased
question legitimacy of child invoking illness. SC consulted medical experts and
stated that persons suffering TB even advanced stage are still capable of SI and are
even more aggressive. In case of doubt solve question in favour of legitimacy.

2. For scientific and biological reasons the child could not have been that of
husband except in 2nd paragraph of Art. 164
Ex. Couples are Caucasians and deliver a black baby – cannot be theirs
except if you have ancestors who bear such characteristics.
3. In case of children through AI where consent/authorization was obtained
through fraud

General Rules – 1.) Only husband can impugn the illegitimacy of the child and not
the wife.
[This is dangerous if wife gets angry and makes imprudent
pronunciations out of spite and is without basis]

2.) The child must have been delivered by the wife who is the child’s
natural mother.
Ex. Chua Keng Giap vs. IAC
Maid got pregnant without knowledge of husband and wife but maid
placed in birth certificate as parents the employers. After husband died
child claimed to be the son of the deceased. The daughter of the
deceased questioned the legitimacy and wife of deceased said that she
did not deliver the baby. SC said if alleged mother claims she did not
deliver the child there is no better person to know who delivered the
child but the mother herself.

The fact that the husband had undergone vasectomy is not enough proof to rebut
the presumption if legitimacy of the child sired by his wife because it is still
possible, despite the vasectomy, that the sperm can rechannel itself and effect a
fertilization.

• Compelling the alleged father of a child to submit himself to DNA testing does
not violate his const. right against self-incrimination as the right applies only
to testimonial compulsion (Arnel Agustin vs. Court of Appeals., G.R. No.
162571,
Boyfriend and girlfriend got pregnant. He spent support to wife and baby.
One year later they fought and separated. Mother then demanded for
support. Father denied paternal relations. Woman filed a case against man in
court for support of child. Defense said why give support when he is not the
father. Woman said to submit himself to DNA testing. Man refused because it
will violate his right to self-incrimination. Man was compelled by SC to take
DNA test (99.99% accurate).
/*Court should not accept DNA test given by accused hook, line and sinker*/
In assessing the probative value of DNA evidence must consider among other
things the ff:
1. Method of sampling
2. How they were handled
3. Possibility of contamination
4. Procedures followed in analysing the samples
5. Whether the proper standards and procedures were followed in
conducting the tests
6. Qualifications of the analyst who conducted the test
Rosendo Herrera vs. Alba, G.R. No. 148220

• If the alleged father of the child denies filiation, the court may order DNA
testing even if the said father has already died. The death of the alleged
biological father does not ipso facto negate the application of DNA
(Deoxyribonucleic Acid) testing for as long as there exist appropriate
biological samples of his DNA (Estate of Ong vs. Diaz, G.R. No. 171713, Dec.
17, 2007)
• Status and filiation of a child can never be compromised. Thus, in a case filed
by a child to recover a share in the estate of his alleged father, the
administrator of the estate of the deceased cannot enter into compromise
agreement recognizing the said child as an illegitimate child of the deceased.

A very rich Chinese businessman in Camarines died. His wife also died a
month after. He is survived by 3 children. Eldest is a woman and second and
3rd are both males but both are in the mental asylum. Wealthy businessman
left around P100 million in estate. Suddenly a child appeared represented by
his mother and claims that he is an illegitimate child of the Chinese
businessman asking for his share. Daughter represented in court. While case
is pending the daughter entered into a compromise agreement with the
plaintiff child and mother. Administrator appointed as guardian questioned
the compromise agreement which acknowledged the boy as illegitimate child
of their father. SC said compromise agreement as invalid for you cannot
compromise a status of a person.

• A compromise agreement signed by the illegitimate child and her alleged


father to settle the case for recognition filed by the former against the latter
in the RTC of Cebu City, Branch 9 whereby the child agreed to receive from
her alleged father the sum of 2 million pesos in consideration for the child’s
declaration that there is no blood relation between her and the respondent is
NULL and VOID as it is against the law and public policy. The said
compromise agreement cannot serve as a res judicata to bar the filing of the
said case (Joanie Surposa Uy vs. Jose Ngo Chua, G.R. No. 183965, September
18, 2009).

• The marriage of a woman to a man during the existence of her marriage to


her first husband is null and void for being bigamous. The child born out of
said union can never be considered as illegitimate child but a legitimate child
of the woman and her first husband. Even if the birth certificate of the child
states that his father is Gerardo Concepcion, the same cannot prevail as
against the provision of law. Gerardo being not the father of the child under
the law, he has no demandable visitorial right over the latter. (Gerardo
Concepcion vs. Court of Appeals, G.R. No. 123450, August 31, 2005)
Even if Gerardo was the real father he is not considered the father of the
child under the law because if law will consider Gerardo to be the father the
child will be illegitimate. Law is in favour of legitimacy.

• Dizon vs. De Jesus


A woman who is married and already separated from husband. She made
affair with another man but did not marry her because he is already married
and wife is alive. They had an affair and was able to produce 2 daughters.
Later on the married man died. The man was very rich and before he died he
left a last will and testament which said that when I die I would like a portion
of my estate to 2 daughters as illegitimate children. Daughters then asked
their share but legal wife and children did not give their share. SC said the 2
daughters cannot get any share because they were born at a time that their
mother was lawfully married to another man because their marriage was yet
not dissolved. 2 Girls are considered as legitimate children of the woman and
the husband and not the deceased’s. SC cannot enforce the will because it
will make the 2 girls into illegitimate. Law is in favour of legitimacy. Legal
husband did not question the legitimacy of the 2 girls which lost his right to
impugn legitimacy thus making the 2 girls legitimate children.

• To avoid doubtful paternity wife is prohibited by law to contract a 2nd


marriage within 300 days after termination of her marriage. As in the case of
death of her husband. Should the wife decided to remarry and delivers a child
within the prohibited 300 day period, the said child is presumed to be the
child of the 1st husband if he is born within 180 days of the 2nd marriage,
otherwise, the child is already considered as that of the 2nd husband.

Prescription
One year – If the husband or heirs reside in the same city or municipality where
the child was born.
Two years – If the husband resides in another city or province in the Philippines.
Three years – If husband is residing abroad
N. B. – If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth,
whichever is earlier.

Art. 171. The heris of the husband may impugn the filiation fo the child w/in the
period prescribed in the preceding article only in the ff. cases:
1) If husband should die before the expiration of the period fixed for bringing his
action;
2) If he should die after the filing of the complaint without having desisted
therefrom; or
3) If the child was born after the death of the husband.
• In action for reconveyance filed by the niece to recover the property of her
aunt, respondent cannot question the legitimacy of the niece as he is not the
father of the said child. Legitimacy cannot be collaterally attacked but only
directly attacked by the husband of the niece’s mother.
Tison vs. CA, 276 SCRA 582
• Also in action for partition cannot impugn legitimacy of child because it is
collateral attack.
• An action filed by a legitimate child to cancel the birth certificate of their
housemaid’s child who claimed to be her sister and therefore also a
legitimate chilkd of her parents is not violative of the above mentioned rule,
especially that the legitimate child was able to prove that the said
housemaid’s child was not given birth by her mother and that the

Proof of Filiation
Primary:
1) The record of birth appearing in the civil register (father must participate
through signature the birth certificate)or a final judgment (court declares
you to be a child of that person in a case), or
2) An admission of legitimate filiation in a public document (notarized) or a
private handwritten instrument and signed by the parent concerned
(signature can be foregone if there are other corroborative evidence
presented).
• Jenie San Juan De la Cruz v. Gracia G.R. No. 177728
An unsigned autobiography where the putative father acknowledged
paternity of the child may be considered sufficient proof of filiation if special
circumstances exist to establish that the child is really his. 1.) Where the
private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that
the same must be signed by the acknowledging parent and 2.) Where the
private handwritten instrument is accompanied by other relevant and
competent evidence, it suffices that the claim of filiation therein be shown to
have been made and handwritten by the acknowledging parent as it is
merely corroborative of such other evidence.

Secondary:
1) The open and continuous possession of the status of a legitimate child; or
2) Any other means allowed by the Rules of Court and special laws.

• An action to claim legitimacy may be brought by the child anytime during his
or her lifetime. The heirs of the child may bring the action if the child died
during minority or in the state of insanity. In these cases, the heirs have only
five years from the death of the child within which to institute the action (Art.
173 FC)

Rights of LC

ILLEGITIMATE CHILDREN
- Evidence to establish LC under Art. 172 is the same as Illegitimate filiation
- The action must be brought during the lifetime of the child and shall be
transmitted to the heirs should the child die during minority or in the state if
insanity pursuant to Art. 173. If proof of filiation is primary.
- However if action for recognition is based on the 2nd par. Of Art. 172 it must
be filed only during the lifetime of the alleged parent. If proof of filiation is
secondary.
• If you are IC there is no public document showing that you are your father’s
child (birth certificate, public document or private handwritten instrument
signed by father) only secondary evidence (pictures, support given by father,
friends of father testify through affidavit of the paternity). If you want to
prove that you are IC you have to do it while he is still alive. You tell your
father that I do not have the primary evidence but all is secondary evidence
that you be recognized through a public document acknowledging you as a
child of him. If he denies you tell court to submit himself for DNA testing.
/* primary proofs tantamount to voluntary acknowledgment by your father */

• If father acknowledges child as his but only verbal and not in written and
registered amounts to nothing. Remedy is to get it in writing/affidavit
notarized by a lawyer (public document where acknowledgment is made).
Under the civil code prescriptive period is within 4 years after child reaches
age of majority.
• If father died on the effectivity of FC but child was born on the time of the
Civil Code.
Fiscal in QC who had an affair with his secretary which resulted to the birth of
the child. Fiscal was married and has a family of his own. Later Fiscal died in
1992 (4 years after FC took effect) while child was born in 1982 (6 years
before FC). Child later claims for share of estate of fiscal. Wife and legitimate
children of the fiscal refused to acknowledge the child because fiscal is
already dead and could no longer prove that he is the illegitimate child of the
fiscal. SC said no, the child was born before the FC took effect, at the time of
his birth the prevailing law was the civil code therefore he has vested right to
take action for recognition 4 years after reaching majority if father died. FC
could only be given retroactive effect if it does not impair vested rights.

Rights of IC
• Shall use the surname of the mother – mother is the legal parent of the IC
in Civil Code IC must also use the surname of the mother, however if father
recognizes child and allows the same to use his family name then it can be
done.
• Entitled to a share in the estate of his father
• Entitled to be supported
Moses Gild? vs Republic
Lawyer who impregnated his girlfriend. Father insisted that child will use his
family name but local civil registrar refused. According to LCR the family code
is very clear. Shall use the surname of the mother. Lawyer filed a case
against the LCR to compel them to let child use his surname. SC said under
FC it is very clear that an IC shall use the surname of the mother.

R.A. 9255 – allowing the IC to use the surname of the father if the child is
acknowledged/recognized by the father. So it goes back to the CC rule.

Types of Children
LC
IC
Legitimated – those born out of wedlock to parents who at the time of his
conception have no legal impediment to marry each other but later on contracted
marriage after the birth of the child. Enjoys the same privilege of the LC. LC was
born during the lawful marriage. LeC child born out of wedlock at the time he was
conceived up to the time of his birth. If parents have legal impediments to marry
each other the child can never be legitimated.
Ex. Young lovers got pregnant but decided not to marry because they have to finish
their education. At the time the child was born his parents were only living together
without marriage the child is illegitimate. But later on parents decide to marry each
other the child will be legitimated.

Conditions of LeC
1. Conceived and born at a time when parents are not married to each other yet
2. Parents have no legal impediment to marry at time child was conceived
3. Parents of child contracted marriage to each other after birth of the child.

• Man is married to another woman. He impregnated a girlfriend. Child is born.


Husband cannot marry girlfriend. Then wife died. Man is a widower. He
decides to marry mother of child. Child cannot be legitimated because what
is key point is at time of conception there was legal impediment.
• Mother was a minor when gave birth to IC child. Later mother and father
married when mother reached of age of majority. Can the child be
legitimated? Yes, due to RA 9858.
R.A. 9858
A child born to a parent who is still a minor, therefore, parents have legal
impediment to marry each other can be legitimated by the subsequent
marriage of parents after minor parent has reach the age of majority.

Effects of Legitimation
- Enjoys all privilege of LC
- Shall retroact to the time of the conception and birth of the child.
- Even if the child is already dead (posthumous).
Ex. A and B live together w/out benefit of marriage and produced child X. A
and B continued living together for many years until X graduated, got
married, had children and yet A and B did not get married and X died. When
X died it was then that A and B got married. What is the effect of that
marriage to the grandchildren? That will legitimize their child X who died then
grandchildren can get succession. Grandparents are obliged to support their
child and grandchildren. If son is illegitimate there is a bar to support
grandchildren of IC but only children of IC which are their grandchildren.

• Can legitimation be questioned?


Yes, only those whose rights are affected by the legitimation can question it.
Legal heirs of the parents
Ex. Parents later on contracted marriage. You will be legitimated. During
subsequent marriage they produced 3 LC. So you are LeC but 3 brothers are
LC, they can claim that you are not legitimated. If proven you will be IC and
your share will be smaller.

Artificial Filiation
Created not by God but by Law.

Adoption (Article 183-193) Amended by 2 important legislations RA 8552 – Domestic


Adoption and RA 8043 – Inter-country adoption

• DA – adoption of a child in the Philippines by a Filipino or by a foreigner who


is qualified to adopt a child in the Philippines. Entire proceeding is done in the
Philippines

• ICA – only thing that happens in the Philippines is the choosing of the child to
be adopted. A foreigner who has never set foot in the Philippines can adopt a
Filipino child

• Child refers to a minor (below 18 years of age) or a person over 18 years of


age if he is been living with the adopter during the time of his minority and
been treated by his adopter as his common child

• Child to be adopted must be declared legally available for adoption


2 ways:

1. Voluntarily committed to the DSWD where parental authority of biological


parent is extinguished – parents are there but they voluntarily surrender
their child to DSWD. Let parent first relinquish parental authority to DSWD
so child will be LAFA. Then tell DSWD you want to adopt the LAFA child.
(Old method - File petition for adoption and parents sign affidavit of
consent for adoption)

2. Involuntarily committed to the DSWD where parental authority of


biological parent is extinguished – those children considered as foundling
(found in public places abandoned) DSWD will file petition in court to
declare child as foundling, neglected children which will make the child
LAFA.

• New law provides no need to go to court for purposes to declare child LAFA.
Can be done administratively with DSWD therefore no more judicial
proceedings.

Domestic Adoption RA 8552


• To provide solace to childless couples (old view)
• (Modern view) for the benefit and welfare of the child to be adopted
• Pre-adoption services to be extended by the state:
Provide accredited counsellors to advice the a) biological parents giving
up parental authority of the child to adopter, b) prospective adopter –
obligations, consequences, etc. c) person to be adopted (no adoption shall
proceed without proper counselling of all the key players in adoption)
• Who are qualified to adopt?
Filipinos or foreigners
• Filipino must possess the following qualifications under RA 8552:
1. Must be of legal age
2. In possession of his full civil capacity and legal rights – he must not
be suffering from any impediments like civil interdiction
3. Good moral character
4. Not convicted of any crime involving moral turpitude
5. Emotionally and psychologically capable of caring for his/her own
children
6. Must be at least 16 years older than child to be adopted – however, may
be dispensed with under two conditions: a) adopter is the biological parent
of the child to be adopted in cases of illegitimate filiation [after adoption
the child will be legitimated], b) when you are going to adopt the
illegitimate child of your spouse
7. Must be in position to support and care for his own children in keeping
with the needs of the family – financially capable of supporting not only
the child to be adopted but also his own family and children

• Foreigner must possess the following qualifications:


1. All qualifications of a Filipino adopter
2. Foreigner’s country must have diplomatic relation with the Philippines
3. Must have resided in the Philippines for at least 3 years prior to the filing of
petition to adopt (3 years residence requirement)
Exceptions:
a. If foreigner is a former Filipino citizen and child he is to adopt is his
relative to the 4th civil degree whether by sanguinity or affinity
b. When foreigner seeks to adopt the legitimate son or daughter of his/her
Filipino spouse
c. One who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within 4th civil degree whether by sanguinity or
affinity
Ex. James Anthony Hughes vs RP
An American soldier of US Navy assigned in Olongapo met a Filipina in a
night club they got married. After marriage they went to US to live
because after tour of duty he went back. Filipina became an American
citizen. While in US they were not blessed with a child and decided to
adopt. Filipina has sister in Olongapo also working in a club with 2 children
and have a hard time raising them. They returned purposely to Philippines
to adopt the 2 children of her sister. Will the adoption be granted? Both of
them are not exempted from the 3 years residence requirement even if
wife is a former Filipino citizen, husband is not, therefore not exempted.
This is now a case of 2 Americans adopting a child in the Philippines for
they have not resided in the Philippines for at least 3 years. In case of
doubt rule is against adoption.
If adopter is a married person he cannot do so without adopting jointly
except in the following cases:
1. If one spouse seeks to adopt the legitimate son/daughter of the other.
Ex. I marry a widower with a legitimate child.
2. If one seeks to adopt his/her own illegitimate child. Ex. I have IC when I
was a bachelor and married my wife Later on during the marriage I
decided to adopt my IC I would not have to let my wife join me. All is
needed is her consent and not having her be a joint petitioner. If
approved by the court the IC will be an LC of mine and not of my wife.
3. When husband and wife are already LS. In LS marriage is not dissolved
but legally separated. Either of them can adopt without permission of
the other.
3. Foreigner must come from a country that allows the bringing of the child
adopted to his own country – certification from his own embassy that
based on his own national law the foreigner is legally capacitated to adopt
and he can bring the child to his own country.

• Who can be adopted?


1. The child to be adopted must be declared as legally available for
adoption by the DSWD (administrative) or the court (judicial) – that
biological parents of child must first relinquish their parental authority over
the child in favour of the DSWD. May be voluntary (parents of child are
known) or involuntary (parents of child are unknown).
2. Domestic adoption age is 18 years and below (minor)
[In Inter-country adoption age must be 15 years and below (legally-free
child) ]
o Except if person to be adopted grew up with adopter since the former
was still very young. – still need to declare as LAFA
o RA 9253 which provides to make a child LAFA the certification shall be
only issued by the DSWD so no more judicial issuance.
3. Legitimate son/daughter of your spouse
4. Your own illegitimate child to elevate his/her status to LC even over 18
years of age
5. Adopted before but his adoption has been rescinded
6. Biological parents have died

• Persons who must consent to the adoption:


1. Spouse of adopter
2. Child to be adopted if he/she is over 10 years old
3. Biological parents of child to be adopted
4. Legitimate as well as adopted children also of IC, if they are living with
adopter, of adopter and adoptee

• Procedures in Domestic Adoption Law


[No proceeding will start without counselling/advising the key players in the
adoption] – the law discourages hurried decisions pertaining to adoption
1. Adoption cases are to be filed in the Family Courts. Social worker of the FC
will conduct a case study and submit a case study report to the FC. DSWD will
conduct background check on the prospective adopter, biological parents of
child to be adopted and the child him/herself and make a recommendation to
the court. Once social worker has submitted to the judge that will be the time
the hearing will commence.
2. Petitioner will present evidence that he/she has the qualifications to adopt a
child. Before court will grant petition, the court will grant supervised trial
custody which is 6 months. DSWD social worker will regularly visit the place
of the adopter and monitor the progress of the relationship between the
adopted and adopter. Court may reduce the trial period if they find it for the
best interest of the child unless adopter is an alien. If child is under 7 years
the prospective adopter is entitled all the. Once adopter is able to prove that
he has all qualifications and adoption is for the best interest court will grant
the petition, the DECREE OF ADOPTION will retroact to the time of the filing of
the petition – that when adoption is granted it is as if the child adopted is the
child of the adopter from the moment the petition was filed.
TAMARGO vs CA
The retroactive effect does not include the liability of parents for crimes
committed by children [vicarious liability of parents – if minor child commits a
crime parent is responsible for whatever damage is caused by the child].
- Couple from US, both Filipinos, decided to adopt a relative of the wife from
the Philippines. They went home to adopt the niece of the wife. After hearing,
the couples went back to US waiting for the petition to be granted. While
waiting, child continued to live with biological parents. It turns out that the
child to be adopted killed somebody in school. Parents of the victim decided
to file a case to recover damages. While the case was pending the court
handling it issued an adoption decree. Parents of the victim decided to file a
case against the adopting parents in US and not the biological parents in the
Philippines. Parents of the victim argued that although during the crime the
adoption wasn’t approved but later it was approved and under Sec. 13, the
grant of adoption will retroact to the time of the filing of the adoption. SC said
no it is not correct. Though adoption decree retroacts to the time of the filing
of the petition but it does not include vicarious liability under the law on torts
because liability goes to the parents who have control and supervision over
the child during the commission of the crime.
3. Decree of adoption will be submitted to the LCR and it will be amended. Old
birth certificate will be removed placed in envelope and sealed and
substituted with new birth certificate and this time reflecting the name of the
adopting parents and changing the family name. Record is confidential.
4. Parental authority is now transferred to adopting parents and biological
parents will lose parental authority therefore loses to be an heir to the
biological parents and can now inherit to the adopter.
5. Adoption is strictly personal between adopter and adopted- it creates an
artificial relationship between them. This means that AC will not be
considered a relative of the adopter’s relative. So he cannot inherit from the
parents of his/her adopter.
6. If adopter abused the adopted and adoption is revoked by the court, by order
of the court the authority of the biological parent will be revived.

Who can rescind the adoption?


1. Only the adopted child. The adopter cannot rescind. If adopter is abusive,
adopted child can file a petition to revoke the adoption. Court may revive the
parental authority of the real parents. The adopter cannot. Only adopter can do
is to disinherit the adopted child.

Simulation of birth – when you make it appear that you are the parents of the
child when In truth and in fact you are not.
Ex. A couple is childless but well off. A young student impregnated his girlfriend.
And pregnant girl cannot take care of the child so young couple approached girl
to spend for everything and give money but with the condition that during the
birth of the child the child will be under the name of the couple and not the real
parents. That is not allowed by law because the child will lose his true identity.
Punishable under RA 8552 given amnesty if they will declare within 5 years from
time law effect – 1998.
Monina Lim – Primo Lim
Childless adopted 2 kids through simulation. Children of their househelps. Later
on the surviving wife decided to declare the simulated birth and legally adopted
the children when they were already 18 and 23. Petition was denied because
second husband did not join in the adoption.

INTER-COUNTRY adoption RA 8043


Foreigner may now adopt a Filipino child even if he/she has not been in the
Philippines and also for Filipinos who are already residing abroad.
To provide avenue to Foreigners to qualify if they do not qualify under the
Domestic adoption law.
Ex. German citizen who has not been in the Philippines wants to adopt a Filipino
child for knowing the characters of the same. He can adopt.

A foreigner must go to the nearest accredited adoption agency accredited by the


ICAB (central agency) responsible for all inter-country adoption board. 7
members is the policy making body when it comes to inter-country. They will
decide who can be adopted. They maintain a list of children legally free for
adoption. A foreigner may inquire directly from the ICAB.

1.a. File application to adopt Filipino child and go to AAA who will forward
application to ICAB who will process the application; or

1.b. Foreigner may also come to the Philippines and may file application to adopt to
the RTC of the place where the child reside. RTC will examine application if it is In
order it will transmit the application to the ICAB.

2. ICAB will match the adopter and child to be adopted. Will then give a list of
possible children qualified to be adopted by the prospective adopter then
prospective adopter will decide.

3. After PA decides he/she must personally come to the Philippines to get the AC.
Must have certification under their national law that the PA can bring the AC back to
his country. PA must spend for everything. Trial custody will then begin. PA will file
petition to adopt in the appropriate court in their country. Six months supervised
trial custody will begin by the AAA through whom you course your petition. Is social
worker’s report is good Court will grant a decree of adoption and copy will be sent
to the ICAB of the Philippines. If social worker’s report is not good child will be
offered a prospective adopter in Germany; if cannot be adopted child will be
brought back to the Philippines at the expense of the adopter.
Difference: Petition is filed in country of adopter and also the Court will of their
country. Only involved is the child is from the Philippines. Child inherits citizenship
of the adopter. Much easier to adopt a Filipino child. He/she needs not to come to
the Philippines and file petition in our courts.

SUPPORT
Art. 194. Support comprises everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in keeping with the
financial capacity of the family.
- Not limited to minors. If you want to pursue further education parents are still
obliged to support you until you finish.

Who are obliged to support each other?


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;
5) Legitimate brothers and sisters, whether full or half-blood

Support is a mandatory obligation which cannot be waived, renounced, transmitted


or compensated as it is necessary for the existence, survival and well being of the
individual to be supported.
Ex. If I am your son I can waive those obligations that you have not provided me in
the past but not the right for future support for it is against public policy.

No compromise shall be valid upon the question of future support. Thus, a mother
cannot waive in a compromise agreement support of her son from his father (De
Asis vs. Court of Appeals 303 SCRA 176 Article 2035 Civil Code)

The obligation of the husband and wife to support each other presuppose the
existence of a valid marriage (Yangco vs. Rhode, 1 Phil 404) – if no valid marriage
obligation to support does not exist. If husband denied valid marriage then wife
cannot demand support pendente lite.

A wife who is guilty of adultery is not entitled to support from her husband as said
crime of adultery committed by the wife is a valid defense against an action for
support (Qunitana vs. Lerma, 24 Phil. 285) – mere allegation is not enough, there
must be conviction or at least a very strong evidence to convince the court that the
wife has committed adultery. If husband committed concubinage then the rule on
in pari delicto it will be treated as if both are in good faith and fault occurred,
support continues.

Obligation to support each other is terminated when the court grants annulment of
marriage. – In legal separation despite the fact that marriage is not dissolved the
rule is that the obligation to support each other shall also be terminated by the
decree of LS, however, innocent spouse may petition in court where continuance to
ask for support from the guilty spouse is ordered.

A valid defense to refuse support by a husband to a child claiming support is when


the child is the fruit of an adulterous relationship of the wife, for in such case, the
child is not that of the person from whom support is demanded. (Sanchez vs
Zulueta, 68 Phil 110)

Grandparents shall also support their grandchildren, whether legitimately or


illegitimately related to their children.

The obligation of the grandparents to support their grandchildren do not extend to


the daughter-in-law (Sps. Prudencio and Filomena Lim vs. Ma. Cheryl Lim et al., G.R.
No. 163209, October 30, 2009) – surviving wife of their son claimed support from
her husband’s parents. SC said that cannot be but grandchildren, the wife’s
children, are entitled to support.

A conceived child although still unborn, is entitled to support from the father
because said child is already given by law a provisional personality of its own for all
purposes favourable to it, as provided by Art. 40 of the Civil Code.
Legitimate brothers and sisters, whether full blood or half blood, are obliged to
support each other. Even if brother is of legal age but is incapable of supporting
himself.

If need arises to support IC you have to support the IC brother. But if need is due to
his own fault you have no obligation to do so. Ex. IC brother is a college graduate
but will not go to work and is dependent on his half-brother who is LC. The brother
can stop providing support to his IC brother.

Support of a spouse’s ascendants, brother and sisters, and IC shall be charged


against the separate property of the said spouse and not against the conjugal
partnership. IF separate property is insufficient you may charge it in the conjugal
property but it will be considered as advance to share in liquidation of CP.

From whom will you demand support? (In order)


1) The spouse
2) The descendants in the nearest degree (children)
3) The ascendants in the nearest degree (parents)
4) The brothers and sisters

When there are several persons obliged to give support belonging to the same
category, they should share in the amount needed to support a particular person
(Art. 200)
Where there is one person who needed support and there are several person in the
same category who are capable of supporting him. Ex. Parent and children. Father
dies. Mother, already senior survived. You and your brothers and sisters are all
professionals. You along with your brothers and sisters will have to share in the
support needed by the mother. The law does not state that you have to provide
equal amounts but in proportion to the income of the giver.

When several persons demand support from one person at the same time, and the
latter does not have sufficient means to satisfy all the claims, the order established
in Article 199 shall be followed. Exception spouse and minor child. (Art. 200 par. 3) –
Ex. Wife ask support from husband but son, brothers and sisters and parents also
are demanding support from husband. If minor child is present, he will be given
priority. But if not minor child then wife goes first.

The amount of support depends on the resources of the giver and the needs of the
receiver.
(Left to the sound discretion of the court)
Amount reflected in the court decision can never be final because it can be changed
later on depending on the situation whether an increase or decrease of income of
giver and needs of asker.

It can never be final in amount. It can be increased or reduced proportionately.

Demand for support is necessary as it is only from the time of demand that the
obligation to support commences. Demand can be judicial or extrajudicial. Once
ordered by the court, it must be made within the first 5 days of the month. –
there must be a demand otherwise the supporter is not obligated.
The person obliged to give support has the option to either give it in a fixed monthly
allowance, or maintaining him/her in the family dwelling, except when there is
moral or legal obstacle thereof (Goitia vs. Campos Rueda, 35 Phil 252) – wife
leaves husband for having too much sexual demand. Later wife has economic
problems and asks for support from husband. Husband invokes second

Support cannot be levied or attached except in contractual support. – creditors


cannot attach the support except on contractual support and the amount is more
than what you needed. Ex. Father is an official in a big company and says that
when he dies that the company will give child 50,000 a month by way of support.
Father contracted his company. If father dies, the 50,000 is a contractual support. If
that is more than what he needs for his subsistence the amount in excess can be
attached.

Whoever advances the support shall be entitled to be reimbursed unless he gives it


as an act of charity, and without any intention of being reimbursed. (See Art.
206&207) – if child is left by parents and neighbour out of sympathy supports child
neighbour cannot demand reimbursement from parents. However if he/she intends
in the beginning for reimbursement he/she can do so.

PARENTAL AUTHORITY
Sum total of the rights of parents over the person and property of their
unemancipated children.

Parental authority is inalienable and any abdication of this authority by the parents
is null and void as it cannot be waived, transferred or renounced except in cases
authorized by law (Teresita Sagala-Eslao vs CA, 266 SCRA 317, January 16, 1997) 1)
Adoption – LAFA, 2) Child is placed under guardianship – practically abandoned the
child. If parents left child under care of another person for so many years does not
equate to renunciation of PA but only temporary custody. 3) Voluntary
surrendered/renounced PA.

Santos vs CA
A military man married to a nurse later and they stayed with parents of girl.
Relationship turned sour, wife decided to go to US to work as nurse and left child
with parents with consent of husband. Later on husband want to get the child from
parents-in-law for more than 3 years. Grandparents of the child says no, they will
not give the child for he has abandoned the child and not even gave support during
his absence. Husband snatched his own child and brought to another province.
Grandparents filed a case. Who has the better right? SC said as between the
grandparents and parent the parent is preferred. There is no evidence that father is
unfit to exercise PA over the child. The fact that he left the child with the son for 3
years does not mean he has relinquished his PA. The father did not renounce PA in
fact even wanted to get back the child.

The father and the mother shall jointly exercise PA over the persons of their
common children.
- If father and mother of IC are living under one roof and father has
acknowledge IC as his own then he has PA over the IC. In case of
disagreement the decision of the father will prevail over mother.
Briones vs. Miguel 2004
If child is IC mother exercise PA even if father recognizes the child (Latest ruling use
this)
In case of separation of the parents, PA shall be exercised by the parent designated
by the Court.

The award of parental authority to one parent in case of separation does not mean
that the parental authority of the other parent is necessarily terminated or lost.
Thus, when the court awards the custody of the child n a legal separation case to
the mother, the adoption of the child still requires the consent of the father (Cang
vs. CA 296 SCRA 128)

General rule – if parents separate and children are minors if below 7 go with mother
(maternal preference rule) if above 7 they decide
Exception – Unless there are compelling reasons to deprive custody of child – ex.
Being a prostitute is not enough reason to deprive her of PA, mother, however,
being a prostitute have shown her low moral ascendancy over the child is.
Sufficiency in income is not compelling reason to deprive mother for that can be
remedied by asking for support from father. (Court will decide such cases in case-to-
case basis)

As between the parents and the grandparents of the child, the parents should be
preferred in the battle of custody of the child The court’s judgment in custody cases
will not attain finality as it can be changed by the court anytime
depending on what it feels is best for the interest of the child (Luna vs.
Intermediate Appellate Court, 137 SCRA 7) Grandparents maternal side are rich.
Child grew up with his grandparents. Time came when parents wanted to get their
child back. Child does not want to go to his parents. Child cannot go to US because
parents won’t give consent. Grandparents wanted the parents to sign the parental
consent. When grandparents returned from US child wanted to go back to
grandparents prompting parents to file a case against grandparents. SC decided in
favour of the parents. Grandparents appealed to CA until it reached the SC. The
child should go to the parents. Decision became final and executory. When sheriff
went to grandparent’s house to take the child the child said that he will kill himself
if they will take him to his parents. The decision was reversed by SC.

The court may award custody of the child to a stranger if such award would best
serve the paramount interest of the child (Balatbat vs. Balatbat, 98 Phil 998)
Bartolome Cabangbang is a well known politician, former congressman in Bohol.
They were not gifted with a child so they decided to adopt one. There was a bar
girl(hostess) in Manila who was impregnated by her boyfriend and they cannot
afford they gave their child to Cabangbang (not legally adopted). Simulation of
birth. They treated the child as their own. Later, the real mother of the child was
able to work in Japan and was able to save money. When she returned she was rich.
She and the father wanted to get back to the child. Cabangbang said why should
they do it when they raised her. Child also do not want to go back to real parents.
Mother of child filed a case against the Cabangbangs. Court said, although you are
real parents you do not deserve to be called parents and are unfit to be given
custody. AS between real parents and a stranger the Cabangbang couple should be
given custody for that is the best interest of the child.

The Maternal Preference Rule, which gives preference to the mother over the father
in the custody of a child under seven years of age, is based on the nversally
recognized rule tha t the mother is the natural custodian of her young.

However, the rule is subject ot the condition that the mother is fit to exercise
custody of her child. Thus, if there are compelling reasons to deprive the mother
then it may be awarded to the father.

1) Mother who after the separation, lived with her brother-in-law with whom she
now has a child, is not morally fit to have the custody of the child with her
estranged husband
2) 2) When the child is already in the custody of her father during the pendency
of the guardianship proceedings. This is to prevent havoc.
3) When the mother is already maintaining a common law relationship with a
marriesd man, there is a compelling reason to deprive her of the custody of
her child

Not compelling reasons


a) The father is well off
b) Lesbianism
c) Mother is a prostitute

The issue of custody of children shall be resolved in the court where the case for
Declaration of Nullity of Marriage is pending pursuant to Art. 49 and 50 of the FC.
This means that the filing of a separate action for custody is not necessary. (Yu vs.
Yu, G.R. No. 164915, March 10, 2006)

The law creating the FC (RA 8369) did not divest the CA and the SC of their
jurisdiction over habeas corpus cases involving the custody of minor children

Substitute Parental Authority


• It is given by law to grandparents in case of death, absence or unsuitability of
the child’s parents to exercise parental authority. If minor child has eldest
brother or sister are of legal age and are capable of giving support to minor
child.
• Old Rule – Paternal Grandparents are given preference
• FC – In case both sets of grandparents are still alive the court will decide who
will get PA over the child considering the paramount interest of the child.
• The Filial Privilege Rule refers to the right of the descendant not to be
compelled to testify in a criminal case against his parents and grandparents,
except when such testimony is indispensable in a crime, against the
descendant or by one parent against the other (ex. Father attempted to rape
his daughter, daughter can be compelled to testify or mother attempted to
kill father).
• In the absence of both parents, the following may exercise SPA (Art. 216)
a) Grandparents
b) Oldest brother or sister over 21 years unless disqualified
c) Actual guardian
• N.B. in case of foundling, abandoned or any similarly situated children, PA will
be vested upon heads of children’s homes, orphanages and similar
institutions properly accredited to handle such cases.
• The persons enumerated in Article 216 of the FC shall assume SPA in the
same order of preference mentioned in the same article.
• The child’s actual custodian may be awarded custody of the child as against
the real parents if the latter is found to be unfit. May even be awarded to a
stranger if necessary.

SPECIAL PARENTAL AUTHORITY


This refer to the special parental authority of the school, its administrators and
teachers, or the individual, entity or institution engaged in child care over the minor
child while under their supervision, instruction or custody (Art. 218)
- Includes excursions or out of school liability but still school activity if injury
occurs and teacher, principal or school administrator did not exercise due
diligence

The liability of the school etc. is solidary while that of the parent is only subsidiary
- Example an elementary student stabbed classmate with sharpened pencil in
the eye. Who is answerable? No. It is the teacher, the principal or school
administrator who is primarily liable. Parents are only liable if school teacher,
principal or school administrator cannot – this is what subsidiary liability
means.

The rule before was that a teacher can be held liable for the tortuous act of his
student or pupil only when he is a teacher of a school of arts and trade

The said rule has already been abandoned by the case of Amadora vs CA GR L-
47745, April 15, 1988, when the SC ruled that there is no substantial distinction
between the academic and the non-academic schools in so far as torts committed
by their students are concerned
• Fiscal’s child was killed inside the University premises. He went back to
school despite that there is no more class to finish projects in preparation for
graduation. While doing so a bully shot him point blank. A case was filed by
the parents of the victim against USJR. Their defense is the liability of the
teacher, principal or school administrator or school itself only applies if it’s a
school of arts and trade. SC said no, it should also apply to private and public
schools. SC reversed RTC’s decision and exonerated USJR from any liability
on the ground that there is no sufficient evidence that USJR was negligent.
Defense if they can prove they exercised due diligence in the performance of
their functions.

The liability of the school and teachers will only apply if the student is still a MINOR,
if the student is no longer a minor, only the teacher or head of the school of arts
and trade and not the school who is liable (Art. 2180). However, the respondeat
superior rule may apply. <– if employee cannot pay it will be the employer who will
pay on non-minors.

Those liable may set up the defense of due diligence of a good father of the
family.

Parental authority of parents consist of the authority over the person or over the
property of the child

Parental authority over the person includes the authority of parents to keep their
children in their company, support and educate them, and provide them examples.

Refusal of the parents to give their consent ot the marriage of their minor child is no
justification for the said child to abandon her parents and live in the home of the
judge. A petition for custody

Petition for habeas corpus filed by the parents against the religious institution, to
whom they entrusted their child who was still 2 ½ years old, is proper even if the
child testified that she was there of her own free will (Reyes vs. Alvarez)

A mother has right to file a petition for change of name for and in behalf of her
unemancipated child as it is part of her duty to represent their children in all
matters.

Vicarious Liability of Parents


• Parents are answerable for the crimes committed by their children.
• Principally and primarily liable for the acts or omissions of their
unemancipated children which resulted to the damage or prejudice another.
For this liability to attach it is necessary that the UC is still living with their
company and under their authority. This is also known as doctrine of
imputed negligence.
• Adopting parents are not liable for the crime committed by their adopted
child during the pendency of the adoption proceeding in court. This is
because when the child
• Libi vs IAC
2 young sweethearts whose relationship turned sour. Girl broke of
relationship with guy. He was broken-hearted that after the break-up he went
home and shot girl and committed suicide. Parents of girl filed charges for
damages against parents of boy. SC said that lower court is correct that they
are liable for damages. No evidence shown that you exercised due diligence
of a good father of a family.
In order to free themselves from liability for acts committed by their minor
children, it is imperative that the parents must show that they exercised the
due diligence of a good father of a family.

Although parents are the natural guardians over the person and property of their
minor children, the court may forfeit that right if the welfare and best interest of the
child dictates.

Parents have primary responsibility to discipline their children. IF child is incorrigible


despite efforts of the parents, the latter may seek assistance of court to impose
discipline.

PARENTAL AUTHORITY OVER THE PROPERTY OF THE CHILD


The parents of an unemancipated child are automatically considered as legal
guardian over the property of the said child without need of a court appointment

In case the value of the property or the income of the child exceeds P50,000 the
parents are required to put up a bond in such amount as the court may determine
but not less than 10% of the value of the property or the annual income of the said
child. The petition for approval of the bond shall be in a summary proceeding.

The authority of the parents over the property of their children as legal guardian is
limited only to acts of administration or management. It does not include acts of
encumbrance or disposition.

The property acquired by the child through his own effort or industry or by
gratuitous title shall belong to him in ownership. The said properties shall be
devoted primarily for his own welfare, support and education. However, if the said
child’s property and income is more than enough for his own needs, the same may
be used for the collective daily needs of his family if the latter is truly in need of
such amount.

Suspension or termination of PA
PA is terminated permanently
1. Death of parents
2. Death of a child
3. Emancipation of the child – child reaches age of majority

Temporary termination of PA (READ)


1. Adoption of child
2. Appointment of general guardian
3. J declaration of abandonment
4. Final judgment of a competent court divest parents of PA

Grounds for suspension of PA (READ)


1. Conviction of parent

IF parents of child subjected child to sexual abuse such person shall be deprived by
the court of such authority (Art. 232)

In no case shall the school admin, teacher or individual engaged in child care
exercising special PA inflict corporal punishment upon the child. (Art. 233 par.2).
Parents may, however may inflict corporal punishment on their child provided it is
not excessive, otherwise, they would be violating RA 7610, otherwise known as the
Special Protection of Children against Child Abuse, Exploitation and Discrimination
Act.
Emancipation upon age of majority
Attainment of age of majority – 18 RA 6809
Despite lowering of the age of majority, those between the age of 18 to 21 are still
required to secure parental consent if they decide to marry

Between age of 18 to 21 but still living with parents, such parents are still liable for
crime committed by their children.
Elcano vs. Hill
Under Civil Code age of majority was 21. But 18 year old can already marry. Those
who enter into marriage within age of 18 to 21 were considered minors but
emancipate by marriage. Later on lowered by RA 6809 but do not derogate parent’s
responsibility for the crimes committed by children 18 to 21 who are still living with
them and are dependent for support from them. Son over 18 but below 21 living
with Atty. Hill. Son and wife lived with him. One time Atty. Hill asked son to drive on
an errand. The injured party demanded for damages included Atty. Hill because son
couldn’t pay. Father said son is already emancipated by virtue of marriage therefore
not making him liable. SC said, no, because your child is still living with you and still
entirely dependent from you even if he is emancipated by marriage you are still
liable. Parents may avoid liability if they can prove that they exercised due ca
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
A. Petition for judicial authorization to sell or encumber common property
B. Petition for judicial authority or administer or encumber specific separate
property of the abandoning spouse and to use the friuits or proceeds thereof for the
support of the family
Venue; Family Court where either party reside
Procedure (READ)
1. Notify other party and let him/her show cause why petition should not be
granted
2. Preliminary conference
3. Z
C. Incidents involving PA (223-225)
D. Other matters subject to summary proceeding.