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Custody: Determining the best interest of the child Ex Parte Devine Facts: Alice and Christopher Devine were

married on Dec. 1966, and separated on March 1979. Their marriage produced two children. After their divorce, custody of the child was awarded to Alice, the wife. The court’s deci was based on the “tender years presumption” which states that custody of children in the tender years are awarded to the mother (based on natural law). Both parents were unfit to take custody. Issue: WON the Trial court’s reliance on the tender years presumption deprived the father of his constitutional entitlement to the equal protection of the law Held: The tender years presumption represents an UNCONSTITUTIONAL classification which discriminates between fathers and mothers in child custody proceedings SOLELY ON THE BASIS OF SEX (Gender is not a fair proxy for fitness) Ration: *It creates a presumption of fitness and suitability of one parent without any consideration of the Actual capabilities of the parties. *Aside from sex, there are other factors to consider… Cervantes v. Fajardo Nature: Petition for a writ of Habeas Corpus re: Angelie Anne Cervantes Facts: Angelie Anne Fajardo, born February 14, 1987, was offered for adoption by her parents – Conrado Fajardo and Gina Carreon – to Zenaida Carreon-Cervantes and Nelson Cervantes (Angelie’s aunt and uncle) when she was just barely 2 weeks old. Gina executed an Affidavit of Consent to the adoption in April, and Angelie was legally adopted by August 1987 and was named Angelie Anne Cervantes. March/April 1987, Gina and Conrado wrote a letter demanding P150K from the petitioners, or else they would get back their child. September 1987, Gina took Angelie from Zenaida’s house in Rizal, saying that she did not have desire to give up her child, that the Affidavit of Consent that she executed was not fully explained to her, and that she would only return Angelie if the petitioners pay P150K. However, a social worker countered Gina’s claim, saying that during the investigation for the adoption of Angelie, Gina manifested desire to have her child adopted by the petitioners. From there, this case arose. Issue: WON the petitioners could have custody over Angelie Held: Yes. Custody and care of Angelie, a minor, is granted to the petitioners Ratio: In cases involving custody, care, education and property of children, the child’s welfare is paramount. *The foremost consideration is the moral, physical, and social welfare of the child concerned. *take into account the resources and moral as well as social standing of the contending parents *provision that children below 5 yrs old shall not be separated from mother could be waived if Court finds compelling reason *[Conrado is married to another, not to Gina + Gina has another daughter from another married man who left her + Gina jobless] vs. [petitioners who are legally married, morally, physically, financially and socially capable of supporting the minor and giving her a better future] *Angelie was already legally adopted by the petitioners: of a decree of adoption: dissolve authority vested in natural parents (except in cases where 2nd spouse of natural parent adopts the child) Espirity v. CA Nature: Petition for review of a decision of the Court of Appeals Facts: Reynaldo Espiritu and Teresita Masauding met in Iligan City 1976, Teresita went to California and Reynaldo to Pittsburgh and there the two met again in 1984 and lived as common law husband and wife. 1986, Rosalind was born. 1987, went back to the Philippines and got married. Returned to US and 1987, Reginald was born. Relationship deteriorated, first allegedly because of financial matters: Reynaldo thrifty vs. Teresita spendthrift. Also, Reynaldo later found out that Teresita was already married in 1984, and also, she was having illicit affair with his coworker who was living with them in Pittsburgh. Reynaldo tried to give marriage second chance but Teresita left for California and left Reynaldo and the two children. Teresita claims to have called the children. Reynaldo and children went back to RP but Reynaldo had to return to Pittsburgh so he left children with copetitioner who was his sister and the children’s aunt. Teresita claims not to immediately follow her children because of the bigamy suit against her. She eventually followed her children in Manila and on December 1992, filed habeas corpus petition against petitioners to gain custody over 2 children. RTC dismissed the case in June 1993, Reynaldo granted sole parental authority over children, Teresita’s parental authority suspended and was granted visitation rights. CA reversed RTC decision in February 1994. Petitioners contest CA deci. Issue/s: 1. WON the CA blindly applied the age proviso of Art. 363 of CC and Art. 213 of FC 2. WON the age proviso should be considered from the filing of the habeas corpus petition or during the trial 3. WON the father or the mother was unfit for the custody of the children Held: Grant custody to the petitioners. 1. Yes. CA blindly applied age proviso by just considering the facts that the children were at that time below 7 years old and thus, custody should be granted to the mother, even if the mother is unfit for the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and

development. Should ascertain the welfare of the children first (not the agony or pride of the parents) and the preference of the children + Court’s discretion over the fitness of the parents. 2. Children are both over 7 yrs old, smart and capable of thoughtfully determining preferred parent – age considered during the trial since custody not permanent and choice of child ascertained at time of determining custody: In two examinations (psychological exams initiated by the Assumption College and the examination conducted by the social welfare officer for the purpose of securing a travel clearance required for travel of minors), Rosalinda manifested hatred for mom – emotional shock – upon seeing mom hugging and kissing a “bad” man who lived in their house. Also, conduct of mom and children in court showed that children were not that attached with their mother. Children more attached to yaya. 3. Mother was shown unfit based on evidences: Teresita was married 1984 to another man and her allegation of marriage was not merited because she was the one who went to Pittsburgh and decided to live with Reynaldo; Teresita also had illicit relationship with Reynaldo’s co-worker, as witnessed by Rosalind and the letters she wrote to the co-worker; She was incapable of providing the children with necessities and conveniences commensurate to their social standing, Teresita not even owning a home in RP; Teresita was emotionally unstable with ebullient temper. Father was not shown to be unfit: work was temporary and was in fact already completed. Celis v. Cafuir Nature: Appeal from a judgement of the CFI of Manila Facts: Ileana Celis gave birth to Joel (John ) Cafuir in July 1946, but her father was mad at her for the alleged disgrace she brought on herself and the family and did not want the child living in the paternal home so she gave the custody over Joel to Soledad Cafuir through a written letter that she executed. Ileana also executed another letter granting Soledad to be the “real guardian” of her son. Two years after, she got married and decided to get her son back. However, Soledad refused to do so. Ileana therefore filed this petition. Issue/s: 1. WON Ileana renounced the custody of her son in favor of the respondent based on the two letters she executed 2. WON the custody should be granted to the petitioner 3. WON the P5531.15 should be indemnified Held: 1. No. In the 1st letter, Ileana merely entrusted her son to Soledad. In the 2nd letter, she merely made Soledad the “real guardian” of John – guardian: temporary. While one is a minor or is incompetent, a guardian is appointed; but when minority has passed or incapacity has ceased, guardianship also terminates. Ileana was a minor then and could not bring her son to live with her in her father’s home so she entrusted John to Soledad. Now that she’s emancipated, married, and had the means to care for and support her child (has own home and better financial condition), she should be given the opportunity to bring up her child. 2. Yes. Flesh and blood count. Respondents are strangers to the child, already has 4 children, and the relationship between a foster mother and a child is not natural but artificial. Even if they have more adequate means, financial means is not everything. 3. No. Said claim should be made and established in a separate suit.