1.) Sagala-Eslao v.
Court of Appeals James Ouye, expressed his willingness to adopt Leslie and Angelica and to
(G.R. No. 116773, 16 January 1997)
FACTS:
1. The right of the mother to the custody of her daughter is the issue in the
case at bar.
2. From the evidence, it appears that on June 22, 1984, [respondent] Maria Paz
Cordero-Ouye and Reynaldo Eslao were married; after their marriage, the
couple stayed with [petitioner] Teresita Eslao, mother of the husband and
hence mother-in-law of respondent Maria, at 1825, Road 14, Fabie Estate,
Paco, Manila.
3. That out of their marriage, two children were begotten, namely, Leslie Eslao
who was born on February 23, 1986 and Angelica Eslao who was born on
April 20, 1987.
4. In the meantime, Leslie was entrusted to the care and custody of
[respondent Maria's] mother in Sta. Ana, Pampanga, while Angelica stayed
with her parents (respondent Maria and Reynaldo) at [petitioner Teresita's]
house.
5. On August 6, 1990, [respondent Maria's] husband Reynaldo Eslao died.
6. [Respondent] Maria intended to bring Angelica with her to Pampanga but
[petitioner] Teresita prevailed upon her to entrust the custody of Angelica to
her, [petitioner] Teresita reasoning out that her son just died and to assuage
her grief therefor, she needed the company of the child to at least
compensate for the loss of her late son.
7. In the meantime, the [respondent] Maria returned to her mother's house in
Pampanga where she stayed with Leslie.
8. Subsequently, [respondent] Maria was introduced by her auntie to Dr.
James Manabu-Ouye, a Japanese-American, who is an orthodontist
practicing in the United States; their acquaintance blossomed into a
meaningful relationship where on March 18, 1992, the [respondent] Maria
and Dr. James Ouye decided to get married; less than ten months thereafter,
or on January 15, 1993, the petitioner migrated to San Francisco, California,
USA, to join her new husband.
9. At present, [respondent] Maria is a trainee at the Union Bank in San
Francisco, while her husband is a progressive practitioner of his profession
who owns three cars, a dental clinic and earns US$5,000 a month.
10. On June 24, 1993, the [respondent] Maria returned to the Philippines to be
reunited with her children and bring them to the United States;
[Respondent] Maria then informed the [petitioner] Teresita about her desire
to take custody of Angelica and explained that her present husband, Dr.
provide for their support and education.
11. However, [petitioner] Teresita resisted the idea by way of explaining that
the child was entrusted to her when she was ten days old and accused the
[respondent] Maria of having abandoned Angelica.
12. Because of the adamant attitude of [petitioner] Teresita, [respondent] Maria
then sought the assistance of a lawyer, Atty. Mariano de Joya, Jr., who
wrote a letter to [petitioner] Teresita demanding for the return of the
custody of Angelica to her natural mother 6 and when the demand
remain[ed] unheeded, the [respondent] Maria instituted the present action.7
13. After the trial on the merits, the lower court rendered its decision, granting
custody of Angelica to respondent Maria. CA affirmed. Hence this petition.
ISSUES:
1. W/N respondent Maria has the right to the custody of Angelica. Yes. When
private respondent Maria entrusted the custody of her minor child to the
petitioner Teresita, what she gave to the latter was merely temporary
custody and it did not constitute abandonment or renunciation of parental
authority. For the right attached to parental authority, being purely personal,
the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children's home or an orphan institution
which do not appear in the case at bar.
RULING: IN VIEW WHEREOF, the decision appealed from dated March 25, 1994
being in accordance with law and the evidence, the same is hereby AFFIRMED and
the petition DISMISSED for lack of merit.
RATIO:
1. The petition is without merit.
2. Petitioner Teresita argues that she would be deserving to take care of
Angelica; that she had managed to raise 12 children of her own herself; that
she has the financial means to carry out her plans for Angelica; that she
maintains a store which earns a net income of about P500 a day, she gets
P900 a month as pension for the death of her husband, she rents out rooms
in her house which she owns, for which she earns a total of P6,000 a month,
and that from her gross income of roughly P21,000, she spends about
P10,000 for the maintenance of her house.
3. Despite the foregoing, however, and petitioner Teresita's "genuine desire to
remain with said child, that would qualify her to have custody of Angelica,"
 the trial court's disquisition, in consonance with the provision that the
child's welfare is always the paramount consideration in all questions
concerning his care and custody8 convinced this Court to decide in favor of
private respondent Maria, thus:
a. The [respondent] Maria herein is married to an Orthodontist who has lucrative
practice of his profession in San Francisco, California, USA. The [respondent] and
her present husband have a home of their own and they have three cars. The
[respondent]'s husband is willing to adopt the [respondent]'s children. If the children
will be with their mother, the probability is that they will be afforded a bright
future.
b. Contrast this situation with the one prevailing in the [petitioner]'s [grandmother's]
house. As admitted by [petitioner] Teresita, four of the rooms in her house are being
rented to other persons with each room occupied by 4 and 5 persons. Added to these
persons are [petitioner] Teresita's 2 sons, Samuel and Alfredo, and their respective
families and one can just visualize the kind of atmosphere pervading thereat. And to
aggravate the situation, the house has only 2 toilets and 3 faucets. Finally,
considering that in all controversies involving the custody of minors, the foremost
criterion is the physical and moral well-being of the child taking into account the
respective resources and social and moral situations of the contending parties, the
Court is left with no other recourse but to grant the writ prayed for.10
4. Petitioner Teresita further contends that the respondent court erred in
finding that there was no abandonment committed by the private respondent
Maria. Petitioner Teresita argues that it has been amply demonstrated
during the trial that private respondent Maria had indeed abandoned
Angelica to the care and custody of the petitioner; that during all the time
that Angelica stayed with petitioner Teresita, there were only three instances
or occasions wherein the private respondent Maria saw Angelica; that
private respondent Maria never visited Angelica on important occasions,
such as her birthday, and neither did the former give her cards or gifts, "not
even a single candy;"11 that while private respondent Maria claims
otherwise and that she visited Angelica "many times" and insists that she
visited Angelica as often as four times a month and gave her remembrances
such as candies and clothes, she would not even remember when the fourth
birthday of Angelica was.
5. We are not persuaded by such averments.
6. In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,  we stated, viz:
12
a. . . . [Parental authority] is a mass of rights and obligations which the law grants to
parents for the purpose of the children's physical preservation and development, as
well as the cultivation of their intellect and the education of their heart and
senses.13 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."14
b. Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law.15 The right attached
to parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a children's home
or an orphan institution. When a parent entrusts the custody of a minor to another,
such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental
authority.17 Even if a definite renunciation is manifest, the law still disallows the
same.
c. The father and mother, being the natural guardians of unemancipated children, are
duty-bound and entitled to keep them in their custody and company.19
7. Thus, in the instant petition, when private respondent Maria entrusted the
custody of her minor child to the petitioner Teresita, what she gave to the
latter was merely temporary custody and it did not constitute abandonment
or renunciation of parental authority.
8. For the right attached to parental authority, being purely personal, the law
allows a waiver of parental authority only in cases of adoption, guardianship
and surrender to a children's home or an orphan institution which do not
appear in the case at bar.
9. Of considerable importance is the rule long accepted by the courts that the
right of parents to the custody of their minor children is one of the natural
rights incident to parenthood, a right supported by law and sound public
policy. The right is an inherent one, which is not created by the state or
decisions of the courts, but derives from the nature of the parental
relationship.
2.) Christina Dempsey v. RTC
(G.R. Nos. 77737-38, 15 August 1988)
FACTS:
1. On January 30, 1986, two separate informations were filed against
respondent Joel Dempsey before the Municipal Trial Court, Branch II,
Olongapo City charging him with violation of Article 59 (par. 2) of P.D.
603 and Article 46, par. 8 of P.D. 603. 
2. The Informations read: 
a. Criminal Case No. 68-86 – Abandonment of Child
b. That on or about and during the period from December 1985 to the present, in the
City of Olongapo, Philippines,…, the above-named accused did then and there
wilfully, unlawfully and feloniously leave their conjugal dwelling at No. 15 Ohio
Street, Upper Kalaklan, Olongapo City and abandon his child Christina R. Dempsey
and deprive him (sic) of his love, care and protection she from the accused (sic)
since then, by continuously failing and refusing to give adequate support to the said
minor child and despite pleas, the accused without lawful justification, failed,
disregarded and still continues to fail and disregard to perform his obligations to his
said minor child Christina R. Dempsey, 
c. Criminal Case No. 69-86 – Refusal to Support
d. That on or about and during the period from December 1985 to the present, in the
City of Olongapo, Philippines, …, the above-named accused, did then and there
wilfully, unlawfully and criminally fail and refuse to provide his child Christina
 R. Dempsey with adequate support, as defined in Article 290 of the Civil Code, Manuel Rosapapan as Chairman of the Committee on Legal Aid of the IBP Chapter
despite the fact that he is capable of supporting his child, and despite pleas, the of Zambales Olongapo City and the same to form part of the legal aid fund. 
accused without lawful justification, failed and refused and still fails and refuses to
provide his child with adequate support, to the damage and prejudice of the said 9. The private respondent appealed the municipal trial court's decision to the
child.  regional trial court and prayed that the award on civil liability be set aside
3. The facts of the case are summarized by the Trial Court as follows:  and the penalty of imprisonment be reduced to a penalty of fine only. 

4. xxx xxx xxx The testimony of complainant Janalita Rapada purports to 10. In a decision rendered on November 28, 1986, the respondent regional trial
show that in her cohabitation with the accused, without the benefit of court reversed the municipal trial court's decision on the following
marriage, Christina Marie was born on October 01, 1984, at the St. Jude's grounds: 
Family Clinic, Olongapo City where she delivered the child. Her birth a. 1. Parental authority to which certain parental obligations are attached pertains only
certificate, Exhibit "A" bears an entry of the name of the accused as the to legitimate and adopted children unlike petitioner who is an acknowledged
illegitimate minor child of private respondent; that in cases of abandonment of
father and Exhibit "A-1 " the Affidavit of the Acknowledgment duly signed minors, the proper forum is the Department of Social Welfare where the person to
by him.  whom the minor has been left must report immediately (Art. 161, P.D. 603). 
5. At the present, the child receives a monthly support from the accused in the b. 2. A person cannot he held criminally liable for failure to support a minor child. 
sum of $150.00 thru the child's mother, Janalita Rapada. Aside from this c. 3. The Municipal Trial Court had determined a matter not within its competence
monthly support, Janalita Rapada obtained a promise from the accused to and authority. 
declare Christina Marie as his dependent and also a commitment to declare
the child after his citizenship. This will entitle the child for all the benefits 11. Hence, the present petition on pure questions of law. 
and privileges extended to dependents of American US Navy servicemen 12. The petitioner maintains that the penalty of imprisonment and fine in both
like free medical check-up. Efforts were made with the Naval Legal Service cases is sanctioned by the law and jurisprudence and that the award of civil
Office, US Naval Facilities, Subic Bay, Philippines to compel the accused liability is justified.
to fulfill these commitments but to no avail. To seek redress thru the Court,
she engaged the services of Atty. Estanislao L. Cesa, Jr., offering P5,000.00 ISSUES:
as Attorney's fee payable after the cases are decided.  1. W/N
6. xxx xxx xxx At the Naval Legal Service Office, someone entertained her RATIO:
demand for the accused to declare Christina Marie as his dependent and
after his American citizenship. She was of the belief that these could be 1. We find merit in the instant petition. 
done not knowing that the American who entertained her demands had no 2. The respondent court committed reversible error when it failed to take into
authority to effect the same. (Rollo, pp. 21-22)  account that the decision of the municipal trial court was based on the
7. Upon arraignment, the private respondent freely, voluntarily, and private respondent's plea of guilty.
spontaneously entered a plea of guilty to the offense charged in the 3. Respondent Joel Dempsey did not and does not challenge the validity of
Information.  Presidential Decree No. 603, Articles 46 and 59 on certain obligations of
8. On August 26, 1986, the Trial Court rendered a decision, the dispositive parents to their children and Articles 60 and 210 penalizing violations of
portion of which reads:  mandatory provisions. As a matter of fact, respondent Dempsey's appeal
impliedly recognizes the validity of the judgment of conviction because
a. WHEREFORE, finding the accused guilty beyond reasonable doubt of the charges
against him, considering the mitigating circumstances of his voluntary plea of he asked that the penalty of imprisonment be changed to fine, not that
guilty, this Court sentences him to a prison term of Three (3) Months and Eleven the trial court's decision was void or that he be acquitted. 
(11) days to Four (4) months of Arresto Mayor, medium period and fine of Three
hundred (P300.00) Pesos for each of the cases and to pay the costs.  4. There can be no question about the trial court's jurisdiction over the criminal
prosecutions. Article 69 of P.D. 603 penalizes abandonment of a minor
b. For the civil liability, judgment is rendered against accused Joel Dempsey child by its parent, as provided in Article 59, with imprisonment from
confirming the payment of US $150.00 monthly support to Christina Marie and to
continue payment thru Janalita Rapada, to be used solely for the needs of the child two to six months or a fine not exceeding five hundred pesos or both.
until she reaches the age of majority; to recognize the child Christina Marie as his
natural child; to pay Christina Marie thru Janalita Rapada the sum of P10,000.00 as
5. Article 210 penalizes a violation of the obligation to give adequate
exemplary damage; and to pay the sum of P5,000.00 as attorney's fee to Atty. support found in Article 46 with imprisonment not exceeding one
 month or a fine not exceeding two hundred pesos or both, unless a
higher penalty is provided for in the Revised Penal Code or special
laws.  Development. It is readily apparent that the DSSD cannot take cognizance
6. The respondent court erred in its ruling that the trial court determined a
matter not within its competence and authority. There is likewise no basis
for its gratuitous finding that a parent cannot be held criminally liable under
P.D. 603 for withholding support from his minor child. There is absolutely
no discussion on this ruling.
7. The records show, however, that Joel Dempsey's plea of guilt to the
charge of withholding support from his minor daughter was made
without a full understanding of that particular charge. Janalita Rapada
herself testified that she is receiving $150.00 a month for the support of the
minor Christina Marie Dempsey. The amount of P3,000.00 monthly appears
to fulfill the requirement of "adequate support" found in Par. 8, Art. 46 of
P.D. No. 603. What Rapada wants is a judicial declaration for this support
to continue. This cannot be the basis of a criminal conviction. 
8. As to the information charging abandonment, the private respondent entered
his plea of guilt with full knowledge of the consequences and meaning of
his act and with the assistance of his counsel. The reversal of conviction
based on a plea of guilty is an act which is not at all explained by the
respondent court and, therefore, in excess of its jurisdiction. It is well-
settled as a general rule that a plea of guilt is sufficient to sustain conviction
without introduction of further evidence (People v. Formentera, 130 SCRA
114; People v. Balisacan, 17 SCRA 119; People v. Gravino, et al., 122
SCRA 123; People v. Pajarillo, 94 SCRA 828). Only in such exceptional
cases as capital offenses is evidence still required.  imposed is erroneous. The award of exemplary damages and attorney's fees
9. The respondent court further ruled that Christina Dempsey is not entitled to
the rights arising from the parental responsibility of her father, she being an
illegitimate child. Reliance was made on Art. 17 of P.D. 603 which defines
the joint parental authority of parents over their legitimate or adopted
children. The respondent court's observations are wrong because the
law itself protects even illegitimate children. Illegitimate children have
rights of the same nature as legitimate and adopted children. This is
enunciated in Art. 3, P.D. 603 which provides that "all children shall be
entitled to the rights herein set forth without distinction as to legitimacy or
illegitimacy, sex, social status, religion, political antecedents, and other
factors." Rights must be enforced or protected to the extent that it is possible
to do so. 
10. The Solicitor General points out that the new Family Code promulgated as
Executive Order No. 209, July 17, 1978 erases any distinction between
legitimate or adopted children on one hand and acknowledged illegitimate
children on the other, insofar as joint parental authority is concerned.
Article 211 of the Family Code, whose date of effectivity is approaching,
merely formalizes into statute the practice on parental authority.  Criminal Case No. 69-86 he is ACQUITTED.
11. The respondent court would shift jurisdiction over the case from the
municipal trial court to the Department of Social Services and
of and enforce the criminal sanctions of P.D. 603. Besides, Christina
Marie Dempsey is not an abandoned child in the strict sense of the
word as she is still in the custody and care of her mother.
12. Art. 141 of P.D. 603 defines an abandoned child as follows: "... An
abandoned child is one who has no parental care or guardianship or whose
parents or guardians have deserted him for a period of at least six
continuous months ... ."
13. Article 161 cannot, therefore, be applied to the case at bar. Thus, it is not
the Department of Social Services and Development which has jurisdiction
but the Municipal Trial Court. 
14. There is one other point which has to be corrected. As part of the civil
liability in its judgment, the trial court required the accused to
recognize Christina Marie as his natural child. This should not have
been done.
15. The recognition of a child by her father is provided for in the Civil Code
and now in the new Family Code. In this criminal prosecution, where the
accused pleaded guilty to criminal charges and the issue of recognition was
not specifically and fully heard and tried, the trial court committed
reversible error when it ordered recognition of a natural child as part
of the civil liability in the criminal case. 
16. We also agree with the respondent regional trial court that the penalty
is improper. Although fathers like Joel Dempsey should be deterred from
committing similar acts of irresponsibility, the law does not allow us to
affirm the grant of exemplary damages only on the basis of the facts herein
presented. Exemplary damages cannot be awarded inasmuch as there is not
one or more aggravating circumstances (Art. 2230, Civil Code). 
17. As to the penalties, we agree with the Solicitor General that these should be
modified accordingly. And finally, it should be noted that the Regional Trial
Court after declaring that the Municipal Trial Court acted outside of its
competence merely set aside the appealed decision. Instead of acquitting the
accused, it suggested the filing of necessary pleadings before the proper
court. 
18. WHEREFORE, the questioned decision of the RTC of Olongapo City,
Branch 75 of the Third Judicial Region is hereby REVERSED and SET
ASIDE. The decision of Branch II of the Municipal Trial Court of
Olongapo City is REINSTATED with the modification that in Criminal
Case No. 6886, Joel Dempsey is sentenced to imprisonment of One (1)
month and to pay a fine of Three Hundred Pesos (P300.00) while in

3.) Cang v. Court of Appeals
(G.R. No. 105308, 25 September 1998)
FACTS:
1. Can minor children be legally adopted without the written consent of a
natural parent on the ground that the latter has abandoned them? The answer
to this interesting query, certainly not one of first impression, would have to
be reached, not solely on the basis of law and jurisprudence, but also the
hard reality presented by the facts of the case.
2. This is the question posed before this Court in this petition for review on certiorari of the
Decision1 of the Court of Appeals affirming the decree of adoption issued by the Regional Trial
Court of Cebu City, Branch 14,2 in Special Proceedings No. 1744-CEB,
3. Petitioner Herbert Cang and Anna Marie Clavano who were married on
January 27, 1973, begot three children, namely: Keith, born on July 3, 1973;
Charmaine, born on January 23, 1977, and Joseph Anthony, born on
January 3, 1981.
4. During the early years of their marriage, the Cang couple's relationship was
undisturbed. Not long thereafter, however, Anna Marie learned of her
husband's alleged extramarital affair with Wilma Soco, a family friend of
the Clavanos.
5. Upon learning of her husband's alleged illicit liaison, Anna Marie filed a
petition for legal separation with alimony pendente lite 3 with the then
Juvenile and Domestic Relations Court of Cebu 4 which rendered a
decision5 approving the joint manifestation of the Cang spouses providing
that they agreed to "live separately and apart or from bed and board." They
further agreed:
a. (c) That the children of the parties shall be entitled to a monthly support of ONE
THOUSAND PESOS (P1,000.00) effective from the date of the filing of the
complaint. This shall constitute a first lien on the net proceeds of the house and lot
jointly owned by the parties situated at Cinco Village, Mandaue City;
b. (d) That the plaintiff shall be entitled to enter into any contract or agreement with
any person or persons, natural or juridical without the written consent of the
husband; or any undertaking or acts that ordinarily requires husband's consent as the
parties are by this agreement legally separated; 6
6. Petitioner then left for the United States where he sought a divorce from
Anna Marie before the Second Judicial District Court of the State of
Nevada. Said court issued the divorce decree that also granted sole custody
of the three minor children to Anna Marie, reserving "rights of visitation at
all reasonable times and places" to petitioner. 7
7. Thereafter, petitioner took an American wife and thus became a naturalized
American citizen. In 1986, he divorced his American wife and never
remarried.
8. While in the United States, petitioner worked in Tablante Medical Clinic
earning P18,000.00 to P20,000.00 a month8a portion of which was remitted
to the Philippines for his children's expenses and another, deposited in the
bank in the name of his children.
9. Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano
and Maria Clara Diago Clavano, respectively the brother and sister-in-law
of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of
the three minor Cang children before the Regional Trial Court of Cebu. The
petition bears the signature of then 14-year-old Keith signifying consent to
his adoption. Anna Marie likewise filed an affidavit of consent alleging that
her husband had "evaded his legal obligation to support" his children; that
her brothers and sisters including Ronald V. Clavano, had been helping her
in taking care of the children; that because she would be going to the United
States to attend to a family business, "leaving the children would be a
problem and would naturally hamper (her) job-seeking venture abroad;" and
that her husband had "long forfeited his parental rights" over the children
for the following reasons:
a. 1. The decision in Civil Case No. JD-707 allowed her to enter into any contract
without the written consent of her husband;
b. 2. Her husband had left the Philippines to be an illegal alien in the United States and
had been transferring from one place to another to avoid detection by Immigration
authorities, and
c. 3. Her husband had divorced her.
10. Upon learning of the petitioner for adoption, petitioner immediately
returned to the Philippines and filed an opposition thereto, alleging that,
although private respondents Ronald and Maria Clara Clavano were
financially capable of supporting the children while his finances were "too
meager" compared to theirs, he could not "in conscience, allow anybody to
strip him of his parental authority over his beloved children."
11. Pending resolution of the petition for adoption, petitioner moved to
reacquire custody over his children alleging that Anna Marie had transferred
to the United States thereby leaving custody of their children to private
respondents.
12. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19,
issued an order finding that Anna Marie had, in effect, relinquished custody
over the children and, therefore, such custody should be transferred to the
father. The court then directed the Clavanos to deliver custody over the
 minors to petitioner.
13. On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14,
issued a decree of adoption with a dispositive portion reading as follows:
a. WHEREFORE, premises considered, the petition for adoption of the minors Keith,
Charmaine and Joseph Anthony all surnamed Cang, by the petitioner-spouses
Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved.
These children shall henceforth be known and called as Keith D. Clavano,
Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover,
this Decree of Adoption shall:
b. (1) Confer upon the adopted children the same rights and duties as though they were
in fact the legitimate children of the petitioners;
c. (2) Dissolve the authority vested in the parents by nature, of the children; and,
d. (3) Vest the same authority in the petitioners.
e. Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this
Decree of Adoption for registration purposes.
14. In so ruling, the lower court was "impelled" by these reasons:
a. (1) The Cang children had, since birth, developed "close filial ties with the Clavano
family, especially their maternal uncle," petitioner Ronald Clavano.
b. (2) Ronald and Maria Clara Clavano were childless and, with their printing
press, real estate business, export business and gasoline station and mini-mart in
Rosemead, California, U.S.A., had substantial assets and income.
c. (3) The natural mother of the children, Anna Marie, nicknamed "Menchu,"
approved of the adoption because of her heart ailment, near-fatal accident in 1981,
and the fact that she could not provide them a secure and happy future as she
"travels a lot."
d. (4) The Clavanos could provide the children moral and spiritual direction as they
would go to church together and had sent the children to Catholic schools.
e. (5) The children themselves manifested their desire to be adopted by the Clavanos
— Keith had testified and expressed the wish to be adopted by the Clavanos while
the two younger ones were observed by the court to have "snuggled" close to
Ronald even though their natural mother was around.
15. On the other hand, the lower court considered the opposition of petitioner to
rest on "a very shaky foundation" because of its findings that:
a. (1) Petitioner was "morally unfit to be the father of his children" on account of his
being "an improvident father of his family" and an "undisguised Lothario."
This conclusion is based on the testimony of his alleged paramour, mother of his
two sons and close friend of Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house of the Cangs in Opao,
Mandaue City.
b. (2) The alleged deposits of around $10,000 that were of "comparatively recent
dates" were "attempts at verisimilitude" as these were joint deposits the authenticity
of which could not be verified.
c. (3) Contrary to petitioner's claim, the possibility of his reconciliation with Anna
Marie was "dim if not nil" because it was petitioner who "devised, engineered and
executed the divorce proceedings at the Nevada Washoe County court."
d. (4) By his naturalization as a U.S. citizen, petitioner "is now an alien from the
standpoint of Philippine laws" and therefore, how his "new attachments and
loyalties would sit with his (Filipino) children is an open question."
16. Quoting with approval the evaluation and recommendation of the RTC
Social Worker in her Child Study Report, the lower court concluded as
follows:
a. Simply put, the oppositor Herbert Cang has abandoned his children. And
abandonment of a child by its (sic) parent is commonly specified by statute as a
ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514
P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not
only without the consent of the parent, but even against his opposition
17. Before the Court of Appeals, petitioner contended that the lower court erred
in holding that it would be in the best interest of the three children if they
were adopted by private respondents Ronald and Maria Clara Clavano. He
asserted that the petition for adoption was fatally defective and tailored to
divest him of parental authority because: (a) he did not have a written
consent to the adoption; (b) he never abandoned his children; (c) Keith and
Charmaine did not properly give their written consent; and (d) the
petitioners for adoption did not present as witness the representative of the
Department of Social Welfare and Development who made the case study
report required by law.
18. The Court of Appeals affirmed the decree of adoption stating:
a. Art. 188 of the Family Code requires the written consent of the natural parents of
the child to be adopted. It has been held however that the consent of the parent who
has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs.
Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may
be considered as having abandoned the children.
b. In adoption cases, abandonment connotes any conduct on the part of the parent to
forego parental duties and relinquish parental claims to the child, or the neglect or
refusal to perform the natural and legal obligations which parents owe their children
(Santos vs. Ananzanso, supra), or the withholding of the parent's presence, his care
and the opportunity to display voluntary affection. The issue of abandonment is
amply covered by the discussion of the first error.
c. Oppositor argues that he has been sending dollar remittances to the children and has
in fact even maintained bank accounts in their names. His duty to provide support
comes from two judicial pronouncements. The first, the decision in JD-707
CEB, supra, obliges him to pay the children P1,000.00 a month. The second is
mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders
him to pay monthly support of US$50.00 for each child.
d. Oppositor has not submitted any evidence to show compliance with the decision in
JD-101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24 to 45)
drawn in the children's names totalling $2,126.98. The last remittance was on
October 6, 1987 (Exh. 45). His obligation to provide support commenced under the
divorce decree on May 5, 1982 so that as of October 6, 1987, oppositor should have
made 53 remittances of $150.00, or a total of $7,950.00.
e. No other remittances were shown to have been made after October 6, 1987, so that
as of this date, oppositor was woefully in arrears under the terms of the divorce
decree. And since he was totally in default of the judgment in JD-707 CEB, the
 inevitable conclusion is oppositor had not really been performing his duties as a
father, contrary to his protestations.
f. True, it has been shown that oppositor had opened three accounts in different banks,
as follows —
g. The first and third accounts were opened however in oppositor's name as trustee for
Charmaine Cang and Joseph Anthony Cang, respectively. In other words, the
accounts are operated and the amounts withdrawable by oppositor himself and it
cannot be said that they belong to the minors. The second is an "or" account, in
the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the
Philippines, said account is operable only by oppositor and the funds withdrawable
by him alone.
h. The bank accounts do not really serve what oppositor claimed in his offer of
evidence "the aim and purpose of providing for a better future and security of his
family."10
19. Petitioner moved to reconsider the decision of the Court of Appeals. He
emphasized that the decree of legal separation was not based on the merits
of the case as it was based on a manifestation amounting to a compromise
agreement between him and Anna Marie. That he and his wife agreed upon
the plan for him to leave for the United States was borne out by the fact that
prior to his departure to the United States, the family lived with petitioner's
parents. Moreover, he alone did not instigate the divorce proceedings as he
and his wife initiated the "joint complaint" for divorce.
20. Petitioner argued that the finding that he was not fit to rear and care for his
children was belied by the award to him of custody over the children in
Civil Case No. JD-707. He took exception to the appellate court's findings
that as an American citizen he could no longer lay claim to custody over his
children because his citizenship would not take away the fact that he "is still
a father to his children."
21. As regards his alleged illicit relationship with another woman, he had
always denied the same both in Civil Case No. JD-707 and the instant
adoption case. Neither was it true that Wilma Soco was a neighbor and
family friend of the Clavanos as she was residing in Mandaue City seven
(7) kilometers away from the Clavanos who were residents of Cebu City.
Petitioner insisted that the testimony of Wilma Soco should not have been
given weight for it was only during the hearing of the petition for adoption
that Jose Clavano, a brother of Ronald, came to know her and went to her
residence in Iligan City to convince her to be a witness for monetary
considerations. Lastly, petitioner averred that it would be hypocritical of the
Clavanos to claim that they could love the children much more than he
could. 11
22. His motion for reconsideration having been denied, petitioner is now before
this Court, alleging that the petition for adoption was fatally defective as it
did not have his written consent as a natural father as required by Article 31
(2) of Presidential Decree No. 603, the Child and Youth Welfare Code, and
Article 188 (2) of the Family Code.
23. Art. 31 of P.D. No. 603 provides —
a. Art. 31. Whose Consent is Necessary. — The written consent of the following to the
adoption shall be necessary:
b. (1) The person to be adopted, if fourteen years of age or, over;
c. (2) The natural parents of the child or his legal guardian of the Department of
Social Welfare or any duly licensed child placement agency under whose care the
child may be;
d. (3) The natural children, fourteen years and above, of the adopting parents.
24. On December 17, 1986, then President Corazon C. Aquino issued Executive
Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and
Youth Welfare Code. As thus amended, Article 31 read:
a. Art. 31. Whose Consent is Necessary. — The written consent of the following to the
adoption shall be necessary:
b. (1) The person to be adopted, if fourteen years of age or over;
c. (2) The natural parents of the child or his legal guardian after receiving counselling
and appropriate social services from the Ministry of Social Services and
Development or from a duly licensed child-placement agency;
d. (3) The Ministry of Social Services and Development or any duly licensed child-
placement agency under whose care and legal custody the child may be;
e. (4) The natural children, fourteen years and above, of the adopting parents.
(Emphasis supplied
ISSUES:
1. W/N
RATIO:
1. Jurisdiction being a matter of substantive law, the established rule is that the
statute in force at the time of the commencement of the action determines
the jurisdiction of the court. 12 As such, when private respondents filed the
petition for adoption on September 25, 1987, the applicable law was the
Child and Youth Welfare Code, as amended by Executive Order No. 91.
2. During the pendency of the petition for adoption or on August 3, 1988, the
Family Code which amended the Child and Youth Welfare Code took
effect. Article 256 of the Family Code provides for its retroactivity "insofar
as it does not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws." As amended by the Family Code, the
statutory provision on consent for adoption now reads:
a. Art. 188. The written consent of the following to the adoption shall be necessary:
b. (1) The person to be adopted, if ten years of age or over;
c. (2) The  parents by nature of the child, the legal guardian, or the proper government
instrumentality;
d. (3) The legitimate and adopted children, ten years of age or over, of the adopting
parent or parents;
 e. (4) The illegitimate children, ten years of age or over, of the adopting parents, if
living with said parent and the latter's spouse, if any; and
f. (5) The spouse, if any, of the person adopting or to be adopted. (Emphasis supplied)
3. Based on the foregoing, it is thus evident that notwithstanding the
amendments to the law, the written consent of the natural parent to the
adoption has remained a requisite for its validity. Notably, such requirement
is also embodied in Rule 99 of the Rules of Court as follows:
a. Sec. 3. Consent to adoption. — There shall be filed with the petition a written
consent to the adoption signed by the child, if fourteen years of age or over and not
incompetent, and by the child's spouse, if any, and by each of its known living
parents who is not insane or hopelessly intemperate or has not abandoned the child,
or if the child is in the custody of an orphan asylum, children's home, or benevolent
society or person, by the proper officer or officers of such asylum, home, or society,
or by such persons; but if the child is illegitimate and has not been recognized, the
consent of its father to the adoption shall not be required. (Emphasis supplied)
4. As clearly inferred from the foregoing provisions of law, the written
consent of the natural parent is indispensable for the validity of the
decree of adoption.
5. Nevertheless, the requirement of written consent can be dispensed with if
the parent has abandoned the child 13 or that such parent is "insane or
hopelessly intemperate." The court may acquire jurisdiction over the case
even, without the written consent of the parents or one of the parents
provided that the petition for adoption alleges facts sufficient to warrant
exemption from compliance therewith. This is in consonance with the
liberality with which this Court treats the procedural aspect of adoption.
Thus, the Court declared:
a. . . . . The technical rules of pleading should not be stringently applied to adoption
proceedings, and it is deemed more important that the petition should contain facts
relating to the child and its parents, which may give information to those interested,
than that it should be formally correct as a pleading. Accordingly, it is generally
held that a petition will confer jurisdiction if it substantially complies with the
adoption statute, alleging all facts necessary to give the court jurisdiction. 14
6. In the instant case, only the affidavit of consent of the natural mother was
attached to the petition for adoption. Petitioner's consent, as the natural
father is lacking. Nonetheless, the petition sufficiently alleged the fact of
abandonment of the minors for adoption by the natural father as follows:
a. 3. That the children's mother, sister of petitioner RONALD V. CLAVANO, has
given her express consent to this adoption, as shown by Affidavit of Consent,
Annex "A". Likewise, the written consent of Keith Cang, now 14 years of age
appears on page 2 of this petition; However, the father of the children, Herbert
Cang, had already left his wife and children and had already divorced the former, as
evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County
of Washoe, State of Nevada, U.S.A. (Annex "B") which was filed at the instance of
Mr. Cang, not long after he abandoned his family to live in the United States as an
illegal immigrant. 15
7. The allegations of abandonment in the petition for adoption, even
absent the written consent of petitioner, sufficiently vested the lower
court with jurisdiction since abandonment of the child by his natural
parents is one of the circumstances under which our statutes and
jurisprudence 16 dispense with the requirement of written consent to the
adoption of their minor children.
8. However, in cases where the father opposes the adoption primarily because
his consent thereto was not sought, the matter of whether he had abandoned
his child becomes a proper issue for determination. The issue of
abandonment by the oppositor natural parent is a preliminary issue that an
adoption court must first confront. Only upon, failure of the oppositor
natural father to prove to the satisfaction of the court that he did not
abandon his child may the petition for adoption be considered on its merits.
9. This Court finds that both the lower court and the Court of Appeals failed to
appreciate facts and circumstances that should have elicited a different
conclusion 21 on the issue of whether petitioner has so abandoned his
children, thereby making his consent to the adoption unnecessary.
10. In its ordinary sense, the word "abandon'' means to forsake entirely, to
forsake or renounce utterly. The dictionaries trace this word to the root idea
of "putting under a ban." The emphasis is on the finality and publicity with
which a thing or body is thus put in the control of another, hence, the
meaning of giving up absolutely, with intent never to resume or claim one's
rights or interests. 22 
11. In reference to abandonment of a child by his parent, the act of
abandonment imports "any conduct of the parent which evinces a settled
purpose to forego all parental duties and relinquish all parental claims to the
child." It means "neglect or refusal to perform the natural and legal
obligations of care and support which parents owe their children." 23
12. In the instant case, records disclose that petitioner's conduct did not
manifest a settled purpose to forego all parental duties and relinquish
all parental claims over his children as to, constitute abandonment.
Physical estrangement alone, without financial and moral desertion, is
not tantamount to abandonment. 24 While admittedly, petitioner was
physically absent as he was then in the United States, he was not remiss in
his natural and legal obligations of love, care and support for his children.
He maintained regular communication with his wife and children through
letters and telephone. He used to send packages by mail and catered to their
whims.
13. Petitioner's testimony on the matter is supported by documentary evidence
consisting of the following handwritten letters to him of both his wife and
children:
a. 1. Exh. 1 — a 4-page updated letter of Menchu (Anna Marie) addressed to "Dear Bert" on a C.
Westates Carbon Phil. Corp. stationery. Menchu stated therein that it had been "a long time
since the last time you've heard from me excluding that of the phone conversation we've had."
She discussed petitioner's intention to buy a motorbike for Keith, expressing apprehension over
risks that could be engendered by Keith's use of it. She said that in the "last phone conversation"
 she had with petitioner on the birthday of "Ma," she forgot to tell petitioner that Keith's voice
had changed; he had become a "bagito" or a teen-ager with many "fans" who sent him
Valentine's cards. She told him how Charmaine had become quite a talkative "almost dalaga"
who could carry on a conversation with her angkong and how pretty she was in white dress
when she won among the candidates in the Flores de Mayo after she had prayed so hard for it.
She informed him, however, that she was worried because Charmaine was vain and wont to
extravagance as she loved clothes. About Joeton (Joseph Anthony), she told petitioner that the
boy was smart for his age and "quite spoiled" being the youngest of the children in Lahug.
Joeton was mischievous but Keith was his idol with whom he would sleep anytime. She
admitted having said so much about the children-because they might not have informed
petitioner of "some happenings and spices of life" about themselves. She said that it was "just
very exciting to know how they've grown up and very pleasant, too, that each of them have (sic)
different characters." She ended the letter with the hope that petitioner was "at the best of
health." After extending her regards "to all," she signed her name after the word "Love." This
letter was mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445,
Williamson, West Virginia 25661 (Exh. 1-D).
b. 2. Exh. 2 — letter dated 11/13/84 on a green stationery with golden print of "a note from
Menchu" on the left upper corner. Anna Marie stated that "we" wrote to petitioner on Oct. 2,
1984 and that Keith and Joeton were very excited when petitioner "called up last time." She told
him how Joeton would grab the phone from Keith just so petitioner would know what he
wanted to order. Charmaine, who was asleep, was so disappointed that she missed petitioner's
call because she also wanted something that petitioner should buy. Menchu told petitioner that
Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap
sack. Anna Marie informed petitioner that the kids were growing up and so were their needs.
She told petitioner to be "very fatherly" about the children's needs because those were expensive
here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines and
that whatever expenses he would incur, she would "replace" these. As a postscript, she told
petitioner that Keith wanted a size 6 khaki-colored "Sperry topsider shoes."
c. 3. Exh. 3 — an undated note on a yellow small piece of paper that reads:
d. Dear Herbert,
e. Hi, how was Christmas and New Year? Hope you had a wonderful one.
f. By the way thanks for the shoes, it was a nice one. It's nice to be thought of at X'mas. Thanks
again.
g. Sincerely,
h. Menchu
i. 4. Exh. 4 — a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to
"Dear Dad." Keith told his father that they tried to tell their mother "to stay for a little while,
just a few weeks after classes start(s)" on June 16. He informed petitioner that Joeton would be
in Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and
"we'll see what you're (sic) decision will be." He asked for chocolates, nuts, basketball shirt and
shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner
that they had been going to Labug with their mother picking them up after  Angkong or Ama had
prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about
9:30 or 10:00 o'clock in the evening. He wished his father "luck and the best of health" and that
they prayed for him and their other relatives. The letter was ended with "Love Keith."
j. 5. Exh. 5 — another undated long letter of Keith. He thanked his father for the Christmas card
"with $40.00, $30.00 and $30.00" and the "card of Joeton with $5.00 inside." He told petitioner
the amounts following his father's instructions and promise to send money through the mail. He
asked his father to address his letter directly to him because he wanted to open his own letters.
He informed petitioner of activities during the Christmas season — that they enjoyed eating,
playing and giving surprises to their mother. He apprised him of his daily schedule and that
their mother had been closely supervising them, instructing them to fold their blankets and pile
up their pillows. He informed petitioner that Joeton had become very smart while Charmaine,
who was also smart, was very demanding of their mother. Because their mother was leaving for
the United States on February 5, they would be missing her like they were missing petitioner.
He asked for his "things" and $200.00. He told petitioner more anecdotes about Joeton like he
would make the sign of the cross even when they would pass by the Iglesia ni Cristo church
and his insistence that Aquino was not dead because he had seen him on the betamax machine.
For Keith, Charmaine had become "very maldita" who was not always satisfied with her dolls
and things but Joeton was full of surprises. He ended the letter with "Love your son, Keith." The
letter was mailed on February 6, 1985 (Exh. 5-D).
k. 6. Exh. 6 — an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain,
pencil box, socks, half shirt, pencil sharpener and $50.00. She reminded him of her birthday on
January 23 when she would turn 9 years old. She informed him that she wore size 10 and the
size of her feet was IM. They had fun at Christmas in Lahug but classes would start on January
9 although Keith's classes had started on January 6. They would feel sad again because Mommy
would be leaving soon. She hoped petitioner would keep writing them. She signed, "Love,
Charmaine."
l. 7. Exh . 7 — an undated letter of Keith. He explained to petitioner that they had not been remiss
in writing letters to him. He informed him of their trip to Manila — they went to Malacañang,
Tito Doy Laurel's house, the Ministry of Foreign Affairs, the executive house, Tagaytay for
three days and Baguio for one week. He informed him that he got "honors," Charmaine was 7th
in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and
he was glad they would be together in that school. He asked for his "reward" from petitioner
and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He
told petitioner that he was saving the money he had been sending them. He said he missed
petitioner and wished him the best. He added that petitioner should call them on Sundays.
m. 8. Exh. 8 — a letter from Joeton and Charmaine but apparently written by the latter. She asked
for money from petitioner to buy something for the school and "something else." She, promised
not to spend so much and to save some. She said she loved petitioner and missed him. Joeton
said "hi!" to petitioner. After ending the letter with "Love, Joeton and Charmaine," she asked
for her prize for her grades as she got seventh place.
n. 9. Exh. 9 — undated letter of Keith. He assured petitioner that he had been writing him; that he
would like to have some money but he would save them; that he learned that petitioner had
called them up but he was not around; that he would be going to Manila but would be back
home May 3; that his Mommy had just arrived Thursday afternoon, and that he would be the
"official altar boy." He asked petitioner to write them soon.
o. 10. Exh. 10 — Keith thanked petitioner for the money he sent. He told petitioner that he was
saving some in the bank and he was proud because he was the only one in his group who saved
in the bank. He told him that Joeton had become naughty and would claim as his own the shirts
sent to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and
asked for a pair of topsider shoes and candies. He informed petitioner that he was a member of
the basketball team and that his mom would drive for his group. He asked him to call them
often like the father of Ana Christie and to write them when he would call so that they could
wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped
petitioner would be happy with the letter that had taken him so long to write because he did not
want to commit any mistakes. He asked petitioner to buy him perfume (Drakkar) and, after
thanking petitioner, added that the latter should buy something for Mommy.
p. 11. Exh. 11 — a Christmas card "For My Wonderful Father" dated October 8, 1984 from Keith,
Charmaine and Joeton.
q. 13. Exh. 13 — a letter of Keith telling petitioner that he had written him even when their Mom
"was there" where she bought them clothes and shoes. Keith asked petitioner for $300.00.
Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that
would cost P12,000.00. He informed petitioner that he would go to an afternoon disco with
friends but their grades were all good with Joeton receiving "stars" for excellence. Keith wanted
a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come
and visit them someday.
r. 14. Exh. 14 — a letter of Keith with one of the four pages bearing the date January 1986. Keith
told his father that they had received the package that the latter sent them. The clothes he sent,
however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith
asked for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-
heeled shoes and a dress to match, jogging pants, tights and leotards that would make her look
sexy. He intimated to petitioner that he had grown taller and that he was already ashamed to be
asking for things to buy in the grocery even though his mother had told him not to be shy about
it.
14. Aside from these letters, petitioner also presented certifications of banks in
the U.S.A. showing that even prior to the filing of the petition for adoption,
he had deposited amounts for the benefit of his children. 25 Exhibits 24 to 45
are copies of checks sent by petitioner to the children from 1985 to 1989.
15. These pieces of evidence are all on record. It is, therefore, quite
surprising why the courts below simply glossed over these, ignoring not
only evidence on financial support but also the emotional exchange of
sentiments between petitioner and his family. Instead, the courts below
emphasized the meagerness of the amounts he sent to his children and
the fact that, as regards the bank deposits, these were "withdrawable
by him alone." Simply put, the courts below attached a high premium
to the prospective adopters' financial status but totally brushed aside
the possible repercussion of the adoption on the emotional and
psychological well-being of the children.
16. True, Keith had expressed his desire to be adopted by his uncle and
aunt. However, his seeming steadfastness on the matter as shown by his
testimony is contradicted by his feelings towards his father as revealed
in his letters to him. It is not at all farfetched to conclude that Keith's
testimony was actually the effect of the filing of the petition for
adoption that would certainly have engendered confusion in his young
mind as to the capability of his father to sustain the lifestyle he had
been used to.
17. The courts below emphasized respondents' emotional attachment to the
children. This is hardly surprising for, from the very start of their young
lives, the children were used to their presence. Such attachment had
persisted and certainly, the young ones' act of snuggling close to private
respondent Ronald Clavano was not indicative of their emotional
detachment from their father. Private respondents, being the uncle and
aunt of the children, could not but come to their succor when they needed
help as when Keith got sick and private respondent Ronald spent for his
hospital bills.
18. In a number of cases, this Court has held that parental authority
cannot be entrusted to a person simply because he could give the child a
larger measure of material comfort than his natural parent. Thus,
in David v. Court of Appeals, 26 the Court awarded custody of a minor
illegitimate child to his mother who was a mere secretary and market
vendor instead of to his affluent father who was a married man, not solely
because the child opted to go with his mother. The Court said:
a. Daisie and her children may not be enjoying a life of affluence that private
respondent promises if the child lives with him. It is enough, however, that
petitioner is earning a decent living and is able to support her children according to
her means.
19. In Celis v. Cafuir 27 where the Court was confronted with the issue of
whether to award custody of a child to the natural mother or to a foster
mother:
a. This court should avert the tragedy in the years to come of having deprived mother
and son of the beautiful associations and tender, imperishable memories engendered
by the relationship of parent and child. We should not take away from a mother the
opportunity of bringing up her own child even at the cost of extreme sacrifice due to
poverty and lack of means; so that afterwards, she may be able to look back with
pride and a sense of satisfaction at her sacrifices and her efforts, however humble,
to make her dreams of her little boy come true.
b. We should not forget that the relationship between a foster mother and a child is not
natural but artificial. If the child turns out to be a failure or forgetful of what its
foster parents had done for him, said parents might yet count and appraise (sic) all
that they have done and spent for him and with regret consider all of it as a dead
loss, and even rue the day they committed the blunder of taking the child into their
hearts and their home. Not so with a real natural mother who never counts the cost
and her sacrifices, ever treasuring memories of her associations with her child,
however unpleasant and disappointing. Flesh and blood count. . . . .
20. In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining the
welfare and best interests of the child, courts are mandated by the Family
Code to take into account all relevant considerations." Thus, in awarding
custody of the child to the father, the Court said:
a. 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. 
b. 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. (Emphasis
supplied) 29
21. Indeed, it would be against the spirit of the law if financial
consideration were to be the paramount consideration in deciding
whether to deprive a person of parental authority over his children.
There should be a holistic approach to the matter, taking into account the
physical, emotional, psychological, mental, social and spiritual needs of the
child. 30 
22. The conclusion of the courts below that petitioner abandoned his family
needs more evidentiary support other than his inability to provide them the
material comfort that his admittedly affluent in-laws could provide.
23. There should be proof that he had so emotionally abandoned them that
his children would not miss his guidance and counsel if they were given
to adopting parents. The letters he received from his children prove that
petitioner maintained the more important emotional tie between him and his
children. The children needed him not only because he could cater to their
whims but also because he was a person they could share with their daily
activities, problems and triumphs.
24. The Court is thus dismayed that the courts below did not look beyond
petitioner's "meager" financial support to ferret out other indications on
whether petitioner had in fact abandoned his family. The omission of said
courts has led us to examine why the children were subjected to the process
of adoption, notwithstanding the proven ties that bound them to their father.
To our consternation, the record of the case bears out the fact that the
welfare of the children was not exactly the "paramount consideration" that
impelled Anna Marie to consent to their adoption.
25. In her affidavit of consent, Anna Marie expressly said that leaving the
children in the country, as she was wont to travel abroad often, was a
problem that would naturally hamper her job-seeking abroad. In other
words, the adoption appears to be a matter of convenience for her because
Anna Marie herself is financially capable of supporting her children. 31 In
his testimony, private respondent Ronald swore that Anna Marie had been
out of the country for two years and came home twice or three
times, 32 thereby manifesting the fact that it was she who actually left her
children to the care of her relatives. It was bad enough that their father left
their children when he went abroad, but when their mother followed suit for
her own reasons, the situation worsened. The Clavano family must have
realized this. Hence, when the family first discussed the adoption of the
children, they decided that the prospective adopter should be Anna Marie's
brother Jose. However, because he had children of his own, the family
decided to devolve the task upon private respondents. 33
26. This couple, however, could not always be in Cebu to care for the children.
A businessman, private respondent Ronald Clavano commutes between
Cebu and Manila while his wife, private respondent Maria Clara, is an
international flight stewardess. 34 Moreover, private respondent Ronald
claimed that he could "take care of the children while their parents are
away," 35 thereby indicating the evanescence of his intention. He wanted to
have the children's surname changed to Clavano for the reason that he
wanted to take them to the United States as it would be difficult for them to
get a visa if their surname were different from his. 36 To be sure, he also
testified that he wanted to spare the children the stigma of being products of
a broken home.
27. Nevertheless, a close analysis of the testimonies of private respondent
Ronald, his sister Anna Marie and their brother Jose points to the
inescapable conclusion that they just wanted to keep the children away
from their father. One of the overriding considerations for the adoption
was allegedly the state of Anna Marie's health — she was a victim of an
almost fatal accident and suffers from a heart ailment. However, she herself
admitted that her health condition was not that serious as she could still take
care of the children. 37 An eloquent evidence of her ability to physically care
for them was her employment at the Philippine Consulate in Los
Angeles 38 — she could not have been employed if her health were
endangered.
28. It is thus clear that the Clavanos' attempt at depriving petitioner of parental
authority apparently stemmed from their notion that he was an inveterate
womanizer. Anna Marie in fact expressed fear that her children would
"never be at ease with the wife of their father." 39
29. Petitioner, who described himself as single in status, denied being a
womanizer and father to the sons of Wilma Soco. 40 As to whether he was
telling the truth is beside the point. Philippine society, being comparatively
conservative and traditional, aside from being Catholic in orientation, it
does not countenance womanizing on the part of a family man, considering
the baneful effects such irresponsible act visits on his family. Neither may
the Court place a premium on the inability of a man to distinguish between
siring children and parenting them.
30. Nonetheless, the actuality that petitioner carried on an affair with a
paramour cannot be taken as sufficient basis for the conclusion that
petitioner was necessarily an unfit father. 41 Conventional wisdom and
common human experience show that a "bad" husband does not
necessarily make a "bad" father.
31. That a husband is not exactly an upright man is not, strictly speaking, a
sufficient ground to deprive him as a father of his inherent right to parental
authority over the children. 42 Petitioner has demonstrated his love and
concern for his children when he took the trouble of sending a telegram 43 to
the lower court expressing his intention to oppose the adoption immediately
after learning about it. He traveled back to this country to attend to the case
and to testify about his love for his children and his desire to unite his
family once more in the United States. 44
32. Private respondents themselves explained why petitioner failed to abide by
the agreement with his wife on the support of the children. Petitioner was an
illegal alien in the United States. As such, he could not have procured
gainful employment. Private respondents failed to refute petitioner's
testimony that he did not receive his share from the sale of the conjugal
home, 45 pursuant to their manifestation/compromise agreement in the legal
separation case. Hence, it can be reasonably presumed that the proceeds of
the sale redounded to the benefit of his family, particularly his children. The
proceeds may not have lasted long but there is ample evidence to show that
thereafter, petitioner tried to abide by his agreement with his wife and sent
his family money, no matter how "meager."
33. The liberality with which this Court treats matters leading to adoption
insofar as it carries out the beneficent purposes of the law to ensure the
rights and privileges of the adopted child arising therefrom, ever mindful
that the paramount consideration is the overall benefit and interest of the
adopted child, should be understood in its proper context and perspective.
34. The Court's position, should not be misconstrued or misinterpreted as to
extend to inferences beyond the contemplation of law and
 jurisprudence. 46 The discretion to approve adoption proceedings is not to be
anchored solely on best interests of the child but likewise, with due regard
to the natural rights of the parents over the child. 47
35. In this regard, this Court notes private respondents' reliance on the
manifestation/compromise agreement between petitioner and Anna Marie
which became the basis of the decree of legal separation. According to
private respondents' counsel, 48 the authority given to Anna Marie by that
decree to enter into contracts as a result of the legal separation was "all
embracing" 49 and, therefore, included giving her sole consent to the
adoption.
36. This conclusion is however, anchored on the wrong premise that the
authority given to the innocent spouse to enter into contracts that
obviously refer to their conjugal properties, shall include entering into
agreements leading to the adoption of the children. Such conclusion is as
devoid of a legal basis as private respondents' apparent reliance on the
decree of legal separation for doing away with petitioner's consent to the
adoption.
37. The transfer of custody over the children to Anna Marie by virtue of
the decree of legal separation did not, of necessity; deprive petitioner of
parental authority for the purpose of placing the children up for
adoption. Article 213 of the Family Code states: ". . . in case of legal
separation of parents, parental authority shall be exercised by the parent
designated by the court." In awarding custody, 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."
38. If should be noted, however, that the law only confers on the innocent
spouse the "exercise" of parental authority. Having custody of the child, the
innocent spouse shall implement the sum of parental rights with respect to
his rearing and care. The innocent spouse shall have the right to the child's
services and earnings, and the right to direct his activities and make
decisions regarding his care and control, education, health and religion. 50
39. In a number of cases, this Court has considered parental authority,
the joint exercise of which is vested by the law upon the parents, 51 as
a. . . . 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 hearts 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."
b. Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. The right attached to parental
authority, being purely personal, the law allows a waiver of parental authority only
in cases of adoption, guardianship and surrender to a children's home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a
friend or godfather, even in a document, what is given is merely temporary custody
and it does not constitute a renunciation of parental authority. Even if a definite
renunciation is manifest, the law still disallows the same.
c. The father and mother, being the natural guardians of unemancipated children, are
duty-bound and entitled to keep them in their custody and company. 52 
40. As such, in instant case, petitioner may not be deemed as having been
completely deprived of parental authority, notwithstanding the award
of custody to Anna Marie in the legal separation case. To reiterate, that
award was arrived at by the lower court on the basis of the agreement of the
spouses.
41. While parental authority may be waived, as in law it may be subject to a
compromise, 53 there was no factual finding in the legal separation case that
petitioner was such an irresponsible person that he should be deprived of
custody of his children or that there are grounds under the law that could
deprive him of parental authority.
42. In fact, in the legal separation case, the court thereafter ordered the transfer
of custody over the children from Anna Marie back to petitioner. The order
was not implemented because of Anna Marie's motion for reconsideration
thereon. The Clavano family also vehemently objected to the transfer of
custody to the petitioner, such that the latter was forced to file a contempt
charge against them. 54
43. The law is clear that either parent may lose parental authority over the child
only for a valid reason. No such reason was established in the legal
separation case. In the instant case for adoption, the issue is whether or not
petitioner had abandoned his children as to warrant dispensation of his
consent to their adoption. Deprivation of parental authority is one of the
effects of a decree of adoption. 55 But there cannot be a valid decree of
adoption in this case precisely because, as this Court has demonstrated
earlier, the finding of the courts below on the issue of petitioner's
abandonment of his family was based on a misappreciation that was
tantamount to non-appreciation, of facts on record.
44. As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v.
Escaño 56 that a divorce obtained by Filipino citizens after the effectivity of the Civil Code is
not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an
American citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the
divorce has no legal effect.
45. Parental authority is a constitutionally protected State policy borne out of
established customs and tradition of our people. Thus, in Silva v. Court of
Appeals, 57 a case involving the visitorial rights of an illegitimate parent
over his child, the Court expressed the opinion that:
a. Parents have the natural right, as well as the moral and legal duty, to care for their
children, see to their upbringing and safeguard their best interest and welfare. This
authority and responsibility may not be unduly denied the parents; neither may it be
renounced by them. Even when the parents are estranged and their affection for
each other is lost, the attachment and feeling for their offsprings invariably remain
unchanged. Neither the law not the courts allow this affinity to suffer absent, of
course, any real, grave and imminent threat to the well being of the child.
46. Since the incorporation of the law concerning adoption in the Civil Code, there has been a
pronounced trend to place emphasis in adoption proceedings, not so much on the need of
childless couples for a child, as on the paramount interest, of a child who needs the love and
care of parents. After the passage of the Child and Youth Welfare Code and the Family Code,
the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry,
Adoption 58 and Republic Act No. 8552 establishing the rules on the domestic adoption of
Filipino children. 59
47. The case at bar applies the relevant provisions of these recent laws, such as
the following policies in the "Domestic Adoption Act of 1998":
a. (a) To ensure that every child remains under the care and custody of his/her
parent(s) and be provided with love, care, understanding and security towards the
full and harmonious development of his/her personality. 60
b. (b) In all matters relating to the care, custody and adoption of a child, his/her
interest shall be the paramount consideration in accordance with the tenets set forth
in the United Nations (UN) Convention on the Rights of the Child. 61
c. (c) To prevent the child from unnecessary separation from his/her biological
parent(s). 62
48. Inasmuch as the Philippines is a signatory to the United Nations Convention
on the Rights of the Child, the government and its officials are duty bound
to comply with its mandates. Of particular relevance to instant case are the
following provisions:
a. States Parties shall respect the responsibilities, rights and duties of parents . . . to
provide, in a manner consistent with the evolving capacities of the child,
appropriate direction and guidance in the exercise by the child of the rights
recognized in the present Convention. 63
b. States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a
regular basis, except if it is contrary to the child's best interests. 64
c. A child whose parents reside in different States shall have the right to maintain on a
regular basis, save in exceptional circumstances personal relations and direct
contacts with both parents . . . 65
d. States Parties shall respect the rights and duties of the parents . . . to provide
direction to the child in the exercise of his or her right in a manner consistent with
the evolving capacities of the child. 66
49. Underlying the policies and precepts in international conventions and the
domestic statutes with respect to children is the overriding principle that all
actuations should be in the best interests of the child. This is not, however,
to be implemented in derogation of the primary right of the parent or
parents to exercise parental authority over him. The rights of parents vis-à-
vis that of their children are not antithetical to each other, as in fact, they
must be respected and harmonized to the fullest extent possible.
50. Keith, Charmaine and Joseph Anthony have all grown up. Keith and
Charmaine are now of legal age while Joseph Anthony is approaching
eighteen, the age of majority. For sure, they shall be endowed with the
discretion to lead lives independent of their parents. This is not to state that
this case has been rendered moot and academic, for their welfare and best
interests regarding their adoption, must be determined as of the time that the
petition for adoption was filed. 67 
51. Said petition must be denied as it was filed without the required
consent of their father who, by law and under the facts of the case at
bar, has not abandoned them.
52. WHEREFORE, the instant petition for review on certiorari is hereby
GRANTED. The questioned Decision and Resolution of the CA, as well as
the decision of the RTC of Cebu, are SET ASIDE thereby denying the
petition for adoption of Keith, Charmaine and Joseph Anthony, all
surnamed Cang, by the spouse respondents Ronald and Maria Clara
Clavano. This Decision is immediately executory.
4.) Pablo-Gualberto v. Gualberto
(G.R. No. 154994, 28 June 2005)
FACTS:
1. Before us are two consolidated petitions. The first is a Petition for
Review1 filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of
Court, assailing the August 30, 2002 Decision 2 of the (CA) in CA-GR SP
No. 70878. The assailed Decision disposed as follows:
a. "WHEREFORE, premises considered, the Petition for Certiorari is
hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET
ASIDE and ANNULLED. The custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].
b. "The [respondent] court/Judge is hereby directed to consider, hear and resolve
[petitioner’s] motion to lift the award of custody pendente lite  of the child to
[respondent]."3
2. The Facts. The CA narrated the antecedents as follows:
3. "x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed
before [the RTC of Parañaque City] a petition for declaration of nullity of
his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer
for custody pendente lite of their almost 4-year-old son, minor Rafaello (the
child, for brevity), whom [Joycelyn] allegedly took away with her from the
conjugal home and his school (Infant Toddler’s Discovery Center in
Parañaque City) when [she] decided to abandon [Crisanto] sometime in
early February 2002[.]
4. x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary
prayer of [Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn]
allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato
Santos, and Ms. Cherry Batistel, testified before the x x x Judge; x x x
documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x
x [the] Judge awarded custody pendente lite of the child to [Crisanto.] [T]he
Order partly read x x x:
 a. ‘x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their
minor child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the
minor was enrolled at B.F. Homes, Parañaque City. Despite effort[s] exerted by
him, he has failed to see his child. [Joycelyn] and the child are at present staying
with the former’s step-father at the latter’s [residence] at Caminawit, San Jose,
Occidental Mindoro.
b. ‘Renato Santos, President of United Security Logistic testified that he was
commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up
with the conclusion that [she] is having lesbian relations with one Noreen Gay
Cuidadano in Cebu City.
c. ‘The findings of Renato Santos [were] corroborated by Cherry Batistel, a house
helper of the spouses who stated that [the mother] does not care for the child as she
very often goes out of the house and on one occasion, she saw [Joycelyn] slapping
the child.
d. ‘Art. 211 of the Family Code provides as follows:
i. ‘The father and the mother shall jointly exercise parental authority over
the persons of their children. In the case of disagreement, the father’s
decision shall prevail, unless there is a judicial order to the contrary.’
ii. ‘The authority of the father and mother over their children is exercised
jointly. This recognition, however, does not place her in exactly the
same place as the father; her authority is subordinated to that of the
father.
iii. ‘In all controversies regarding the custody of minors, the sole and
foremost consideration is the physical, educational, social and moral
welfare of the child, taking into account the respective resources and
social and moral situations of the contending parties.
e. ‘The Court believes that [Joycelyn] had no reason to take the child with her.
Moreover, per Sheriff returns, she is not with him at Caminawit, San Jose,
Occidental Mindoro.
f. ‘WHEREFORE, pendente lite, the Court hereby awards custody of the minor,
Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.’
5. "x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the
award of custody pendente lite of the child to [Crisanto] was set but the
former did not allegedly present any evidence to support her motion.
However, on May 17, 2002, [the] Judge allegedly issued the assailed Order
reversing her Order of April 3, 2002 and this time awarding custody of the
child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced:
a. ‘Submitted is [Crisanto’s] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyn’s] Motion to Dismiss and the respective Oppositions thereto.
b. ‘The Court believes that on that day, summons was duly served and this Court
acquired jurisdiction over [Joycelyn].
c. ‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.
d. ‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four
years old. Under Article 213 of the Family Code, he shall not be separated from his
mother unless the Court finds compelling reasons to order otherwise. The Court
finds the reason stated by [Crisanto] not [to] be compelling reasons. The father
should however be entitled to spend time with the minor. These do not appear
compelling reasons to deprive him of the company of his child.
e. ‘When [Joycelyn] appeared before this Court, she stated that she has no objection to
the father visiting the child even everyday provided it is in Mindoro.
f. ‘The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello
P. Gualberto, with [the] right of [Crisanto] to have the child with him every other
weekend.
g. ‘WHEREFORE:
h. 1. The [M]otion to Dismiss is hereby DENIED;
i. 2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto
with the right of the father, x x x [Crisanto], to have him every other week-end.
6. In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial Court (Branch
260) of Parañaque City with grave abuse of discretion for issuing its aforequoted May 17, 2002
Order. He alleged that this Order superseded, without any factual or legal basis, the still valid
and subsisting April 3, 2002 Order awarding him custody pendente lite  of his minor son; and
that it violated Section 14 of Article VII of the 1987 Constitution.
7. Ruling of the Court of Appeals
8. Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been committed by
the trial court in reversing the latter court’s previous Order dated April 3, 2002, by issuing the
assailed May 17, 2002 Order. The appellate court explained that the only incident to resolve
was Joycelyn’s Motion to Dismiss, not the issuance of the earlier Order. According to the CA,
the prior Order awarding provisional custody to the father should prevail, not only because it
was issued after a hearing, but also because the trial court did not resolve the correct incident in
the later Order.
9. Nonetheless, the CA stressed that the trial court judge was not precluded from considering and
resolving Joycelyn’s Motion to lift the award of custody pendente lite to Crisanto, as that
Motion had yet to be properly considered and ruled upon. However, it directed that the child be
turned over to him until the issue was resolved.
10. Hence, these Petitions.8
11. In GR No. 154994, Petitioner Joycelyn submits these issues for our
consideration:
a. "1. Whether or not the Respondent Court of Appeals, when it awarded the custody
of the child to the father, violated Art. 213 of the Family Code, which mandates that
‘no child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.’
12. On the other hand, Crisanto raises the following issues:
a. "A. Did Respondent Court commit grave abuse of discretion amounting to or in
excess of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent
court/Judge ‘to consider, hear and resolve the motion to lift award of custody
pendente lite of the child to petitioner and x x x denied the motion for
reconsideration thereof in its November 27, 2002 Resolution, considering that: (1)
there is no such motion ever, then or now pending, with the court a quo; (2) the
November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002 Order
of respondent Judge, the validity of which has been upheld in the August 30, 2002
Decision of the respondent Court, has become final and executory; and
b. "B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts,
physical and mental condition of the illegally detained Minor Rafaello is now
unknown to petitioner and preliminary mandatory injunction with urgent prayer for
 immediate issuance of preliminary [injunction], petitioner having a clear and settled filing of his Motion, she should have manifested that fact to this Court.
right to custody of Minor Rafaello which has been violated and still is being 15. With the CA’s final denial of Crisanto’s Motion for Reconsideration, Joycelyn’s lapse may be excused in the interest of
continuously violated by [petitioner Joycelyn], be granted by this Honorable resolving the substantive issues raised by the parties.
Court?"10
16. First Issue:
ISSUES:
17. Grave Abuse of Discretion
1. W/N
18. In GR No. 156254, Crisanto submits that the CA gravely abused its
RATIO: discretion when it ordered the trial court judge to "consider, hear and
1. The Court’s Ruling resolve the motion to lift the award of custody pendente lite" without any
proper motion by Joycelyn and after the April 3, 2002 Order of the
2. There is merit in the Petition in GR No. 154994, but not in GR No. 156254. trial court had become final and executory. The CA is also charged with
3. Preliminary Issue: grave abuse of discretion for denying his Motion for Partial Reconsideration
4. The Alleged Prematurity of the Petition in GR No. 154994 without stating the reasons for the denial, allegedly in contravention of
5. Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue. In GR No. 154994,
Section 1 of Rule 36 of the Rules of Court.
therein Respondent Crisanto contends that the Petition for Review was filed beyond the deadline (October 24, 2002) allowed
by the Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition was sent by speed mail, 19. The Order to Hear the Motion to Lift the Award of Custody Pendente Lite
only on November 4, 2002. Furthermore, he assails the Petition for its prematurity, since his Motion for Partial
Reconsideration of the August 30, 2002 CA Decision was still pending before the appellate court. Thus, he argues that the Proper
Supreme Court has no jurisdiction over Joycelyn’s Petition.

6. Timeliness of the Petition

20. To begin with, grave abuse of discretion is committed when an act is 1)
done contrary to the Constitution, the law or jurisprudence; 20 or 2) executed
7. The manner of filing and service Joycelyn’s Petition by mail is governed by Sections 3 and 7 of Rule 13 of the Rules of Court,
which we quote: "whimsically or arbitrarily" in a manner "so patent and so gross as to
a. "SEC. 3. Manner of filing. – The filing of pleadings, appearances, motions, notices, orders, judgments and all amount to an evasion of a positive duty, or to a virtual refusal to perform the
other papers shall be made by presenting the original copies thereof, plainly indicated as such personally to the duty enjoined."21 What constitutes grave abuse of discretion is such
clerk of court or by sending them by registered mail. xxx In the second case,  the date of mailing of motions,
pleadings and other papers or payments or deposits, as shown by the post office stamp on the envelope or the capricious and arbitrary exercise of judgment as that which is equivalent, in
registry receipt, shall be considered as the date of their filing, payment, or deposit in court.  The envelope shall
be attached to the records of the case. the eyes of the law, to lack of jurisdiction.22
b. "x x x x x x x x x 21. On the basis of these criteria, we hold that the CA did not commit grave
c. "SEC. 7. Service by mail. – Service by registered mail shall be made by depositing the copy in the office, in a abuse of discretion.
sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence,
if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender
after ten (10) days if undelivered. If no registry service is available in the locality of either the sender of the 22. First, there can be no question that a court of competent jurisdiction is
addressee, service may be done by ordinary mail. (Italics supplied) vested with the authority to resolve even unassigned issues. It can do so
8. The records disclose that Joycelyn received the CA’s August 30, 2002 Decision on September 9, 2002. On September 17, she when such a step is indispensable or necessary to a just resolution of issues
filed before this Court a Motion for a 30-day extension of time to file a petition for review on certiorari. This Motion was
granted,11 and the deadline was thus extended until October 24, 2002. raised in a particular pleading or when the unassigned issues are
9. A further perusal of the records reveals that copies of the Petition were sent to this Court and to the parties by registered inextricably linked or germane to those that have been pleaded. 23 This
mail12 at the Biñan, Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face of the envelope 13 and truism applies with more force when the relief granted has been specifically
attested to in the Affidavit of Service 14 accompanying the Petition. Petitioner Joycelyn explained that the filing and the service
had been made by registered mail due to the "volume of delivery assignments and the lack of a regular messenger." 15 prayed for, as in this case.
10. The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as shown by the post office
stamp on the envelope. The last sentence of Section 3 of Rule 13 of the Rules provides that the date of filing may be 23. Explicit in the Motion to Dismiss 24 filed by Joycelyn before the RTC is her
shown either by the post office stamp on the envelope or by the registry receipt. Proof of its filing, on the other hand, is shown
by the existence of the petition in the record, pursuant to Section 12 of Rule 13.16
ancillary prayer for the court to lift and set aside its April 3, 2002 Order
awarding to Crisanto custody pendente lite of their minor son. Indeed, the
11. The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002, merely discloses
when the mail matters received by the Biñan Post Office on October 24, 2002, were dispatched or sent to the Central Mail necessary consequence of granting her Motion to Dismiss would have been
Exchange for distribution to their final destinations.17 The Registry Bill does not reflect the actual mailing date. Instead, it is the
postal Registration Book18 that shows the list of mail matters that have been registered for mailing on a particular day, along
the setting aside of the Order awarding Crisanto provisional custody of the
with the names of the senders and the addressees. That book shows that Registry Receipt Nos. 2832-A and 2832-B, pertaining child. Besides, even if the Motion to Dismiss was denied -- as indeed it was
to the mailed matters for the Supreme Court, were issued on October 24, 2002.
-- the trial court, in its discretion and if warranted, could still have granted
12. Prematurity of the Petition
the ancillary prayer as an alternative relief.
13. As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for Partial
Reconsideration19 was still awaiting resolution by the CA when she filed her Petition before this Court on October 24, 2002.
The CA ruled on the Motion only on November 27, 2002.

14. The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002. Thus, on September 17,
2002, when Joycelyn filed her Motion for Extension of Time to file her Petition for Review, she might have still been unaware
that he had moved for a partial reconsideration of the August 20, 2002 CA Decision. Nevertheless, upon being notified of the
24. Parenthetically, Joycelyn’s Motion need not have been verified because of the provisional
nature of the April 3, 2002 Order. Under Rule 38 25 of the Rules of Court, verification is
required only when relief is sought from a final and executory Order. Accordingly, the court
may set aside its own orders even without a proper motion, whenever such action is warranted
by the Rules and to prevent a miscarriage of justice.26
25. Denial of the Motion for Reconsideration Proper
26. Second, the requirement in Section 1 of Rule 36 (for judges to state clearly
and distinctly the reasons for their dispositions) refers only to decisions and
final orders on the merits, not to those resolving incidental matters. 27 The
provision reads:
a. "SECTION 1. Rendition of judgments and final orders. – A judgment or final order
determining the merits of the caseshall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of court." (Italics supplied)
27. Here, the declaration of the nullity of marriage is the subject of the main
case, in which the issue of custody pendente lite is an incident. That custody
and support of common children may be ruled upon by the court while the
action is pending is provided in Article 49 of the Family Code, which we
quote :
a. "Art. 49. During the pendency of the action 28 and in the absence of adequate
provisions in a written agreement between the spouses, the Court shall provide for
the support of the spouses and the custody and support of their common children. x
x x."
28. Clearly then, the requirement cited by Crisanto is inapplicable. In any event,
in its questioned Resolution, the CA clearly stated that it "could not find any
cogent reason" to reconsider and set aside the assailed portion of its August
30, 2002 Decision.
29. The April 3, 2002 Order Not Final and Executory
30. Third, the award of temporary custody, as the term implies, is provisional
and subject to change as circumstances may warrant. In this connection,
there is no need for a lengthy discussion of the alleged finality of the April
3, 2002 RTC Order granting Crisanto temporary custody of his son. For that
matter, even the award of child custody after a judgment on a marriage
annulment is not permanent; it may be reexamined and adjusted if and when
the parent who was given custody becomes unfit.29
31. Second Issue:
32. Custody of a Minor Child
33. When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children.
The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years old. 30 On
the one hand, the mother insists that, based on Article 213 of the Family
Code, her minor child cannot be separated from her. On the other hand, the
father argues that she is "unfit" to take care of their son; hence, for
"compelling reasons," he must be awarded custody of the child.
34. Article 213 of the Family Code31 provides:
a. "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.
b. No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise."
35. This Court has held that when the parents are separated, legally or
otherwise, the foregoing provision governs the custody of their
child.32 Article 213 takes its bearing from Article 363 of the Civil Code,
which reads:
a. "Art. 363. In all questions on the care, custody, education and property of children,
the latter’s welfare shall be paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling reasons for such
measure."(Italics supplied)
36. The general rule that children under seven years of age shall not be
separated from their mother finds its raison d’etre in the basic need of
minor children for their mother’s loving care.33 In explaining the
rationale for Article 363 of the Civil Code, the Code Commission stressed
thus:
a. "The general rule is recommended in order to avoid a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows of a mother
who is deprived of her child of tender age. The exception allowed by the rule has to
be for ‘compelling reasons’ for the good of the child: those cases must indeed be
rare, if the mother’s heart is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the (relative) divorce decree will
ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not
have any effect upon the baby who is as yet unable to understand the situation."
(Report of the Code Commission, p. 12)
37. A similar provision is embodied in Article 8 of the Child and Youth
Welfare Code (Presidential Decree No. 603). 34Article 17 of the same Code
is even more explicit in providing for the child’s custody under various
circumstances, specifically in case the parents are separated. It clearly
mandates that "no child under five years of age shall be separated from his
mother, unless the court finds compelling reasons to do so." The provision
is reproduced in its entirety as follows:
a. "Art. 17. Joint Parental Authority. – The father and the mother shall exercise jointly
just and reasonable parental authority and responsibility over their legitimate or
adopted children. In case of disagreement, the father’s decision shall prevail unless
there is a judicial order to the contrary.
b. "In case of the absence or death of either parent, the present or surviving parent
shall continue to exercise parental authority over such children, unless in case of the
surviving parent’s remarriage, the court for justifiable reasons, appoints another
person as guardian.
 c. "In case of separation of his parents, no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so."
(Italics supplied)
38. The above mandates reverberate in Articles 211, 212 and 213 of the Family
Code. It is unmistakable from the language of these provisions that Article
21135 was derived from the first sentence of the aforequoted Article 17;
Article 212,36 from the second sentence; and Article 213, 37 save for a few
additions, from the third sentence. It should be noted that the Family Code
has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.38
39. Mandatory Character of Article 213 of the Family Code
40. In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in
Article 363 of the Civil Code and the observations made by the Code
Commission underscore the mandatory character of the word. 40 Holding in
that case that it was a mistake to deprive the mother of custody of her two
children, both then below the age of seven, the Court stressed:
a. "[Article 363] prohibits in no uncertain terms the separation of a mother and her
child below seven years, unless such a separation is grounded upon compelling
reasons as determined by a court."41
41. In like manner, the word "shall" in Article 213 of the Family Code and
Section 642 of Rule 99 of the Rules of Court has been held to connote a
mandatory character.43 Article 213 and Rule 99 similarly contemplate a
situation in which the parents of the minor are married to each other, but are
separated by virtue of either a decree of legal separation or a de facto
separation.44 In the present case, the parents are living separately as a matter
of fact.
42. The Best Interest of the Child a Primary Consideration
43. The Convention on the Rights of the Child provides that "[i]n all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration."45
44. The principle of "best interest of the child" pervades Philippine cases
involving adoption, guardianship, support, personal status, minors in
conflict with the law, and child custody. In these cases, it has long been
recognized that in choosing the parent to whom custody is given, the
welfare of the minors should always be the paramount
consideration.46 Courts are mandated to take into account all relevant
circumstances that would have a bearing on the children’s well-being and
development. Aside from the material resources and the moral and social
situations of each parent, other factors may also be considered to ascertain
which one has the capability to attend to the physical, educational, social
and moral welfare of the children. 47 Among these factors are the previous
care and devotion shown by each of the parents; their religious background,
moral uprightness, home environment and time availability; as well as the
children’s emotional and educational needs
45. Tender-Age Presumption
46. As pointed out earlier, there is express statutory recognition that, as a
general rule, a mother is to be preferred in awarding custody of children
under the age of seven. The caveat in Article 213 of the Family Code cannot
be ignored, except when the court finds cause to order otherwise.48
47. The so-called "tender-age presumption" under Article 213 of the Family
Code may be overcome only by compellingevidence of the mother’s
unfitness. The mother has been declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a communicable
disease.49
48. Here, Crisanto cites immorality due to alleged lesbian relations as the
compelling reason to deprive Joycelyn of custody. It has indeed been
held that under certain circumstances, the mother’s immoral conduct
may constitute a compelling reason to deprive her of custody.50
49. But sexual preference or moral laxity alone does not prove parental
neglect or incompetence. Not even the fact that a mother is a prostitute
or has been unfaithful to her husband would render her unfit to have
custody of her minor child.51 To deprive the wife of custody, the
husband must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have distracted the
offending spouse from exercising proper parental care.52
50. To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly
living with her brother-in-law, the child’s uncle. Under that circumstance, the Court deemed it
in the nine-year-old child’s best interest to free her "from the obviously unwholesome, not to
say immoral influence, that the situation in which the mother ha[d] placed herself might create
in [the child’s] moral and social outlook."54
51. In Espiritu v. CA,55 the Court took into account psychological and case study reports on the
child, whose feelings of insecurity and anxiety had been traced to strong conflicts with the
mother. To the psychologist the child revealed, among other things, that the latter was
disturbed upon seeing "her mother hugging and kissing a ‘bad’ man who lived in their house
and worked for her father." The Court held that the "illicit or immoral activities of the mother
had already caused the child emotional disturbances, personality conflicts, and exposure to
conflicting moral values x x x."
52. Based on the above jurisprudence, it is therefore not enough for
Crisanto to show merely that Joycelyn was a lesbian. He must also
demonstrate that she carried on her purported relationship with a
person of the same sex in the presence of their son or under
circumstances not conducive to the child’s proper moral development.
Such a fact has not been shown here. There is no evidence that the son
was exposed to the mother’s alleged sexual proclivities or that his
proper moral and psychological development suffered as a result.
 53. Moreover, it is worthy to note that the trial court judge, Helen Bautista-
Ricafort, ruled in her May 17, 2002 Order that she had found the "reason
stated by [Crisanto] not to be compelling" 56 as to suffice as a ground for
separating the child from his mother.
54. The judge made this conclusion after personally observing the two of them,
both in the courtroom and in her chambers on April 16, 2002, and after a
chance to talk to the boy and to observe him firsthand. This assessment,
based on her unique opportunity to witness the child’s behavior in the
presence of each parent, should carry more weight than a mere reliance on
the records. All told, no compelling reason has been adduced to wrench the
child from the mother’s custody.
55. No Grant of Habeas Corpus and Preliminary Injunction
56. As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of
habeas corpus and the preliminary mandatory injunction prayed for by Crisanto have no leg to
stand on. A writ of habeas corpus may be issued only when the "rightful custody of any person
is withheld from the person entitled thereto,"57 a situation that does not apply here.
57. On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be
granted, because Crisanto’s right to custody has not been proven to be "clear and
unmistakable."58 Unlike an ordinary preliminary injunction, the writ of preliminary mandatory
injunction is more cautiously regarded, since the latter requires the performance of a particular
act that tends to go beyond the maintenance of the status quo. 59 Besides, such an injunction
would serve no purpose, now that the case has been decided on its merits. 60
58. WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed
Decision of the Court of Appeals is hereby REVERSED and the May 17,
2002 Regional Trial Court Order REINSTATED. The Petition in GR No.
156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito
Gualberto V.
5.) Beckett v. Sarmiento
(A.M. No. RTJ-12-2326, 30 January 2013)
FACTS:
1. In all questions relating to the care, custody, education and property of the
children, the latter's welfare is paramount. This means that the best interest
of the minor can override procedural rules and even the rights of parents to
the custody of their children. Since, in this case, the very life and existence
of the minor is at stake and the child is in an age when 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, moral and intellectual
development.1 x x x
2. This case arose from a complaint filed by Geoffrey Beckett charging Judge
Olegario R. Sarmiento, Jr. of the (RTC) of Cebu City, Branch 24, with gross
ignorance of the law, manifest partiality and dereliction and neglect of duty
allegedly committed in relation to Sp. Proc. No. 18182-CEB, entitled
Geoffrey Beckett v. Eltesa Densing Beckett, while pending before that
court.
3. Geoffrey Beckett (Beckett or Complainant), an Australian national, was
previously married to Eltesa Densing Beckett (Eltesa), a Filipina. Out of the
marriage was born on June 29, 2001, Geoffrey Beckett, Jr. (Geoffrey, Jr.).
4. In his Complaint-Affidavit,2 Beckett alleged that their union was, from the
start, far from ideal. In fact, according to him, they eventually separated
and, worse still, they sued each other.
5. In 2006, Eltesa filed a case against Beckett for violation of Republic Act
No. (RA) 7610, otherwise known as the Violence against Women and
Children Act, followed by a suit for the declaration of nullity of their
marriage, docketed as Civil Case No. CEB -32254. Both cases ended in the
sala of Judge Olegario Sarmiento, Jr. (respondent or Judge Sarmiento). For
his part, Beckett commenced criminal charges against Eltesa, one of which
was for adultery.
6. The couple’s initial legal battle ended when Judge Sarmiento, on September
25, 2006 in Civil Case No. CEB-32254, rendered judgment 3 based on a
compromise agreement in which Eltesa and Beckett agreed and undertook,
among others, to cause the dismissal of all pending civil and criminal cases
each may have filed against the other. They categorically agreed too that
Beckett shall have full and permanent custody over Geoffrey, Jr., then five
(5) years old, subject to the visitorial rights of Eltesa.
7. Thereafter, Beckett left for Australia, taking Geoffrey, Jr. with him. As with
his three other children from previous relationships, so Beckett alleged, he
cared and provided well for Geoffrey, Jr. Moreover, as agreed upon, they
would come and see Eltesa in Cebu every Christmas.
8. In 2007, Beckett obtained a divorce from Eltesa in Australia. This
notwithstanding, the yearly Christmas visits continued. In the 2010 visit,
Beckett consented to have Geoffrey, Jr. stay with Eltesa even after the
holidays, provided she return the child on January 9, 2011. January 9 came
and went but Geoffrey, Jr. remained with Eltesa, prompting Beckett to file a
petition against Eltesa for violation of RA 7610. Docketed as Sp. Proc. No.
18182-CEB,4this petition was again raffled to the sala of Judge Sarmiento.
And because Geoffrey remained in the meantime in the custody of Eltesa,
Beckett later applied in Sp. Proc. No. 18182-CEB for the issuance of a writ
of habeas corpus.
9. Beckett further relates that, during the March 1, 2011 conference on the
application for habeas corpus, Geoffrey, Jr., then nine (9) years old,
displayed inside the courtroom hysterical conduct, shouting and crying, not
wanting to let go of Eltesa and acting as though, he, the father, was a total
stranger. Despite Geoffrey Jr.’s outburst, Judge Sarmiento issued an Order 5,
dated March 1, 2011, directing inter alia the following: (1) Eltesa to return
Geoffrey, Jr. to Beckett; and (2) Beckett to bring the child in the pre-trial
 conference set for March 15, 2001.
10. For some reason, the turnover of Geoffrey, Jr. to Beckett did not
materialize.
11. Beckett also alleged that while waiting for the March 15, 2011 pre-trial
conference to start, he saw one Helen Sy, purportedly a close friend of
Eltesa, enter Judge Sarmiento’s chambers. Then, during the conference
itself, Eltesa moved for reconsideration of the court’s March 1, 2011 Order,
praying that it be set aside insofar as it directed her to return the custody of
Geoffrey, Jr. to Beckett. To this partial motion, Beckett requested, and was
granted, a period of five (5) days to file his comment/opposition.
Additionally, Beckett sought the immediate implementation of the said
March 1, 2011 Order.
12. But instead of enforcing said order and/or waiting for Beckett’s
comment, Judge Sarmiento, in open court, issued another order giving
Eltesa provisional custody over Geoffrey, Jr. and at the same time
directing the Department of Social Welfare and Development (DSWD)
to conduct a social case study on the child.
13. Weeks later, or in the March 30, 2011 setting, Beckett moved for the
reconsideration of the judge’s March 15, 2011 Order, on the main
contention that Judge Sarmiento can no longer grant provisional custody to
Eltesa in light of the adverted judgment on compromise agreement. Also,
according to him, during this March 30 proceeding, respondent judge
conversed with Eltesa in Cebuano, a dialect which neither the former nor
his counsel understood, and which they (respondent and Eltesa) persisted on
using despite requests that they communicate in English or Filipino.
Beckett’s lawyer then asked that he be allowed to confer in private with his
client for a few minutes but when they returned to the courtroom, the
proceedings had already been adjourned.
14. As his motion for reconsideration had remained unresolved as of June 13,
2011, Beckett filed on that day an urgent motion to resolve. Several
hearings on the case were postponed because of the belated submission by
the DSWD of the case study report requested by respondent judge.
15. It is upon the foregoing factual backdrop that Beckett has instituted the
instant complaint, docketed as A.M. OCA IPI No. 11-3692- RTJ, later
redocketed as A.M. No. RTJ-12-2326. As argued, respondent is liable for
(1) gross ignorance of the law for granting Eltesa provisional custody over
Geoffrey Jr.; and (2) partiality by committing acts of serious misconduct
and irregularities in the performance of official duties, such as but not
limited to allowing one Helen Sy to enter his chambers before the March
15, 2011 hearing, his habit of conversing with Eltesa in the local dialect and
for adjourning a hearing while he was conferring with his counsel in
private. Beckett predicates his charge of dereliction and neglect of duty on
respondent’s alleged failure to resolve his motion for reconsideration of the
March 15, 2011 order giving provisional custody of his child to his mother.
16. In his answer in response to the 1st Indorsement dated July 14, 2011 of the
Office of the Court of Administrator (OCA), respondent judge denied
complainant’s allegations of partiality and of being biased against the latter,
particularly describing his order granting Eltesa provisional custody as
proper.
17. In this regard, respondent judge averred that, per his Order of March 30,
2011, he deferred action on Beckett’s motion for reconsideration of the
court’s March 15, 2011 Order pending submission of the Social Case Study
Report, while the June 21, 2011 Order denying Beckett’s said motion for
reconsideration was based on that Social Case Study Report 6 of Social
Welfare Officer Clavel Saycon, DWSD- Region VII, who recommended
that Geoffrey, Jr. be in the care and custody of the mother.
18. As an added observation, respondent judge stated that Beckett did not cry
"Bias" when he (respondent) approved the compromise agreement in Civil
Case CEB 32254 and when he later urged Beckett to commence habeas
corpus proceedings. Attached to the letter-answer are the case study reports
submitted by the DSWD regional office, one of which was prepared by
psychologist Christine V. Duhaylungsod,7 who elicited from Geoffrey, Jr.
the following information: that (1) complainant always leaves him to the
care of his older half-brother or his father’s girlfriends; (2) he was at one
time sent out of the house by one of complainant’s girlfriends and he had to
stay in the garage alone; and (3) he never wanted to stay with complainant
whom he feared and who once locked him in his room without food. In their
respective reports, Dr. Obra and Dr. Saycon, a psychiatrist, both strongly
recommended that custody over Geoffrey, Jr. be given to Eltesa.
19. Respondent judge also denied knowing one Helen Sy adverted to in the
basic complaint and explained in some detail why he spoke at one instance
to Eltesa in Cebuano. He closed with a statement that he issued his assailed
Orders in good faith and that he had, as sought by complainant, inhibited
himself from further hearing SP Proc. No. 18182-CEB.
20. In the Agenda Report dated March 8, 2012, the OCA regards the complaint
meritorious insofar as the charges for gross ignorance of the law is
concerned given that respondent judge issued his March 15, 2011 Order
granting provisional custody in favor of Eltesa despite the existence of the
judicial compromise. The OCA, thus, recommended that respondent judge
be adjudged liable for gross ignorance of the law and fined with stern
warning. The inculpatory portions of the OCA’s evaluation report
pertinently read:
a. x x x A compromise agreement that is intended to resolve a matter already under
litigation is normally called a judicial compromise. Once it is stamped with judicial
imprimatur, it becomes more than a mere contract binding upon the parties. x x x It
has the force of and effect of any other judgment. x x x Thus, a compromise
agreement that has been made and duly approved by the court attains the effect and
 authority of res judicata x x x.
b. xxxx
c. The pertinent portion of the judgment on Compromise Agreement x x x, which
granted and transferred permanent custody of Geoffrey, Jr. to the herein
complainant is unequivocal. Moreover, the same order even allowed complainant to
bring with him Geoffrey, Jr. to Australia. Thus, in granting Geoffrey, Jr.’s custody
to his mother in an Order issued on 15 March 2011 on a mere Motion for Partial
Reconsideration, respondent judge violated a basic and fundamental principle of res
judicata. When the law is elementary, not to be aware of it constitutes gross
ignorance thereof. After all, judges are expected to have more than just a modicum
of acquaintance with the statutes and procedural rules. Hence, the respondent judge
is guilty of gross ignorance of the law.8
21. The OCA, however, effectively recommends the dismissal of the charge of
manifest partiality and other offenses for want of sufficient substantiation,
noting that the complainant has failed to adduce substantial evidence to
overcome the presumption of regularity in the performance of judicial
duties.
a. Anent the charge of Manifest Partiality, this Office finds the same not supported by
substantial evidence. In administrative proceedings, the complainant bears the onus
of establishing, by substantial evidence, the averments in his complaint.
Complainant failed to present substantial evidence to show the alleged partiality and
ignorance of respondent judge, Mere suspicion that a judge is biased is not enough.
Bare allegations of partiality will not suffice in the absence of clear showing that
will overcome the presumption that the judge dispensed justice without fear or
favor.9
22. The Court also notes that, contrary to complainant’s pretense, respondent
judge had acted on his motion for reconsideration of the contentious March
15, 2011 Order.
23. The OCA’s recommendation for the dismissal of the complaint insofar as it
charges respondent judge with manifest partiality and dereliction and
neglect of duties is well-taken. The Court cannot presume partiality and
serious misconduct and irregularities based on circumstances alleged in the
complaint. Moreover, for serious misconduct to obtain, the judicial act/s
complained of should be corrupt or inspired by an intention to violate the
law or persistent disregard of well-known legal precepts. 10 Nothing in the
records tends to suggest that respondent judge was actuated by malice or
corrupt motives in issuing his disputed March 15, 2011 order granting
Eltesa custody of Geoffrey, Jr. despite the adverted compromise agreement.
ISSUES:
1. W/N The remaining issue then boils down to whether or not respondent
Judge Sarmiento is guilty of gross ignorance of the law.
RATIO:
1. T Gross ignorance of the law on the part of a judge presupposes an
appalling lack of familiarity with simple rules of law or procedures and
well-established jurisprudence which tends to erode the public trust in the
competence and fairness of the court which he personifies. Not to know the
law as basic, almost elementary, as the Rules of Court, or acting in
disregard of established rule of law as if he were not aware of the same
constitutes gross ignorance whence no one is excused, especially an RTC
judge.11
2. Complainant has charged respondent judge with gross ignorance of the law.
He states in this regard that respondent judge, in arbitrary defiance of his
own Decision of September 25, 2006 which constitutes res judicata or a bar
to him to pass upon the issue of Geoffrey, Jr’s. custody, granted, via his
March 15, 2011 Order, provisional custody over Geoffrey, Jr. to Eltesa. The
Decision adverted to refers to the judgment on compromise agreement.
3. The Court cannot go along with complainant’s above posture.
4. Respondent judge, in granting provisional custody over Geoffrey, Jr. in
favor of his mother, Eltesa, did not disregard the res judicata rule. The
more appropriate description of the legal situation engendered by the
March 15, 2011 Order issued amidst the persistent plea of the child not
to be returned to his father, is that respondent judge exhibited fidelity
to jurisprudential command to accord primacy to the welfare and
interest of a minor child.
5. As it were, the matter of custody, to borrow from Espiritu v. Court of
Appeals,12 "is not permanent and unalterable and can always be re-
examined and adjusted." And as aptly observed in a separate opinion in
Dacasin v. Dacasin,13 a custody agreement can never be regarded as
"permanent and unbending," the simple reason being that the situation of
the parents and even of the child can change, such that sticking to the
agreed arrangement would no longer be to the latter’s best interest. In a very
real sense, then, a judgment involving the custody of a minor child cannot
be accorded the force and effect of res judicata.
6. Now to another point. In disputes concerning post-separation custody over a
minor, the well-settled rule is that no child under seven (7) years of age
shall be separated from the mother, unless the court finds compelling
reasons to order otherwise. 14 And if already over 7 years of age, the child’s
choice as to which of his parents he prefers to be under custody shall be
respected, unless the parent chosen proves to be unfit.15 
7. Finally, in Perez v. Court of Appeals, 16 We held that in custody cases, the
foremost consideration is always the welfare and best interest of the child,
as reflected in no less than the U.N. Convention on the Rights of the Child
which provides that "in all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration."17
8. In the light of the foregoing, respondent judge cannot be held guilty of the
charges hurled by the complainant against him for the reason that absent a
 finding of strong reasons to rule otherwise, the preference of a child over 7
years of age as to whom he desired to live with shall be respected.
Moreover, custody, even if previously granted by a competent court in
favor of a parent, is not, to reiterate, permanent. In Espiritu,18 We ruled
that:
a. x x x The matter of custody is not permanent and unalterable.1âwphi1 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 x x x. 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. x x x

9. As Rosalind and Reginald Espiritu in Espiritu, 19 Geoffrey, Jr., at the time

when he persistently refused to be turned over to his father, was already
over 7 years of age. As such, he was very much capable of deciding, based
on his past experiences, with whom he wanted to stay. Noteworthy too are
the results of the interviews which were reflected in the three reports
previously mentioned, excerpts from which are hereunder quoted, to wit:
a. x x x In so far as Geoffrey, Jr.’s account of experience, being with his father’s
custody is something that he is afraid of and something he does not want to happen
again. However, being with his mother is the one (sic) he is looking to (sic) and
aspires.20
b. xxxx
c. x x x Being in the custody of his mother is something (sic) he feel (sic) secure and
protected and this is manifested in the child’s craving for his mother’s presence all
the time and the desire to be always with her that even (sic) he sleeps he wants his
mother to embrace and hug him and cries when he wakes up and he cannot see his
mother.21
d. x x x x x x x He locked me in the room. He always leave (sic) me. x x x they keep
fighting, Daddy and his girlfriend ... they'll get angry with (sic) me ... I'm scared
with (sic) Daddy.22
e. x x x x Meanwhile, Ms. Barbo (the caregiver or yaya of Geoffrey, Jr.), expressed
peculiarities, "Sa Daddy niya, he dd (sic) not fear his mom. Sa mommy niya, he fear
(sic) his dad."23

10. With these, We see no reason to sustain the charge against respondent judge
for gross ignorance of the law. For clearly, absent any evidence to the
contrary, Geoffrey, Jr. chose to live with his mother for a reason, which
respondent judge, consistent with the promotion of the best interest of the
child, provisionally granted through the issuance of the disputed March 15,
2011 Order. In fact, in issuing the disputed Order, respondent judge
rectified an error previously made when he handed out the Judgment on
Compromise Agreement in 2006.
11. WHEREFORE, premises considered, the complaint is hereby DISMISSED.