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Topic: legitimate children G.R. No.

L-55538 March 15, 1982 In the Matter of the Change of Names of DIONESIO DIVINAGRACIA, JR., and BOMBI ROBERTO DIVINAGRACIA to DIONESIO NALDOZA and BOMBI ROBERTO NALDOZA, respectively. ZOSIMA NALDOZA, as natural guardian and guardian ad litem of said minors, petitioner-appellant, vs. REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO S. RUIZ of the Court of First Instance of Bohol, Branch IV, respondents-appellees. Facts: Zosima Naldoza and Dionesio Divinagracia were married. They begot two children. After a quarrel between the spouses, Dionesio left the conjugal home and never returned. He allegedly swindled Congressman Maglana and other persons. The classmates of the two children were allegedly teased about their father being a swindler. Two criminal cases for estafa were filed in court against the father. Zosima, on August 10, 1978, filed in the CFI of Bohol a petition wherein she prayed that the surname of her two children be changed from Divinagracia to Naldoza, her surname. The trial court dismissed the petition. Zosima appealed to this Court. Issue: WON the children should be allowed to drop the surname of their father and be allowed to use the mothers surname? Held: No. We hold that the trial court did not err in denying the petition for change of name. To allow the change of surname would cause confusion as to the minors' parentage and might create the impression that the minors are illegitimate since they would carry the maternal surname only. That would be inconsistent with their legitimate status as indicated in their birth records. As was said in that In re Epstein 200 N.Y.S. 897, "the child should, and in the course of time must, know of his parentage. " If, when he fully appreciates the circumstances and is capable of selecting a name for himself, he wants to use his mother's surname only and to avoid using his father's surname, then he should be the one to apply for a change of surname. See Anno., 53 ALR2d 914. WHEREFORE, the lower court's decision is affirmed. No costs. SO ORDERED.

NATIVIDAD DEL ROSARIO VDA. DE ALBERTO, in her individual capacity and as judicial guardian of the minors ANTONIO ALBERTO, JR. and LOURDES ALBERTO, petitioners, vs. THE HON. COURT OF APPEALS and ANTONIO J. ALBERTO, JR., assisted by his mother as his natural guardian, ANDREA JONGCO, respondents. Facts: ANTONIO J. ALBERTO, JR, claiming that he is the son of Andrea and Antonio filed a complaint for acknowledgment and partition against petitioners (petitioners are the children of Antonio with another woman) Antonio Jr. claimed that petitioners instituted before the then CFI of Manila an intestate proceedings for the estate of his deceased father, that in the said intestate proceedings, petitioners deliberately omitted him as one of the heirs and for this reason they succeeded in having the properties of his deceased father adjudicated and partitioned among themselves. He prayed that petitioners be ordered to acknowledge him as the natural child of Antonio C. Alberto and give him his share in the estate. Trial court dismissed the complaint. On appeal, the CA reversed the trial court and declared Antonio jr. as an acknowledged natural child of Antonio C. Alberto. Hence this petition. Issue: WON the CA is correct in declaring Antonio Jr. as an acknowledged natural child of Antonio C. Alberto? Held: No. The Court of Appeals in its decision gave more credence to the testimonies of Eufracia Cailan and Encarnacion Peralta and declared that their testimonies have sufficiently established the fact that Antonio J. Alberto, Jr. is the son of the late Antonio C. Alberto and Andrea Jongco which finds further proof in the birth certificate and the baptismal certificate of Alberto, Jr. In this connection, it must be stated that in the cases of Reyes vs. Court of Appeals, this Court, citing the cases of Bercilles vs. GSIS, 128 SCRA 53; People vs. Villeza, 127 SCRA 349; Cid vs. Burnaman, 24 SCRA 434; Vudaurrazaga vs. C.A., 91 Phil. 492; and Capistrano vs. Gabino, 8 Phil. 135, ruled that a birth certificate not signed by the alleged father therein indicated, like in the instant case, is not competent evidence of paternity. Granting arguendo that respondent is a natural child of the deceased Antonio Alberto, Sr., the action for recognition of natural child may be brought only during the lifetime of the presumed parent. And if the presumed father or mother died during the minority of the child, the latter may file the action within four (4) years from the attainment of majority (Art. 285 [1]). However, if the minor has a guardian as in this case, prescription runs against him even during minority. In such case, the action for recognition must be instituted within four (4) years after the death of the natural father. Antonio C. Alberto, Sr., the alleged father, died on July 3, 1949. The complaint for acknowledgment and partition was filed eleven (11) years later, on September 8, 1960. Hence, prescription had set in.

Topic: Proof of filiation G.R. No. L-29759 May 18, 1989

Settlement of a decedent's estate is a proceeding in rem which is binding against the whole world. All persons having interest in the subject matter involved, whether they were notified or not, are equally bound. The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed ... and any order that may be entered therein is binding against all of them G.R. No. 71370 July 7, 1986 SLOBODAN BOBANOVIC and DIANNE ELIZABETH CUNNINGHAM BOBANOVIC, petitioners, vs. HON. SYLVIA P. MONTES, (in her capacity as MINISTER OF SOCIAL SERVICES and DEVELOPMENT), respondent. Facts: Spouses Bobanovic, Australian citizens but temporarily residing in Makati, filed a petition to adopt the minor Adam Christopher Sales. The trial court issued an order setting the case for hearing and caused copy of the order to be published in a newspaper of general circulation. In the same order it was directed that a copy thereof be served upon the Solicitor General, the Local Civil Registrar and the Ministry of Social Services Development (MSSD). MSSD was directed to conduct a social case study of the minor sought to be adopted as well as on both his natural and adopting parents and to submit a report and recommendation on the matter. No case study was conducted by MSSD regarding the aforesaid minor. Neither did it submit any report and intervene in the case. Due to such inaction, a Social Worker assigned to the RTC conducted the case study. She submitted the report to the court a quo, recommending favorable action on the petition for adoption. Judgment was rendered granting the adoption of the minor Adam Christopher Sales by the petitioners herein. The decision became final and executory. Petitioners as the adoptive parents, applied for a travel clearance with MSSD in order that their adopted son, may travel to Australia but MSSD refused to issue the requested travel clearance on the ground that it was denied the opportunity to conduct the case study required by law and as it was supposedly deprived also of the opportunity to intervene in the case. Petitioners filed a petition for mandamus against MSSD. Issue: WON the MSSDs refusal to issue the travel clearance is proper? Held: No. In the matter of the issuance of the travel clearance certificate, how simple it could have been for respondent MSSD to have just looked into and considered said report of the Social Worker and/or verified the same. In all the pleadings submitted by respondent MSSD to this Court, there is no insinuation that the report of the Social Worker submitted to the court below is in any way erroneous, incorrect or faulty. MSSD's stance appears to be just to stubbornly insist and maintain that the exclusive prerogative to make a case study pertains to that Ministry.

Public respondent would disregard and ignore the favorable report and recommendation of the Social Worker referred to in the decision of the court a quo without any given reason except for its persistent invocation of what to this Court would now appear to be a frivolous technicality after the finality of the judgment or order decreed by the court below. By refusing to issue the travel clearance respondent Minister would in effect frustrate said judgment of adoption for the adopting parents who reside in a foreign country would consequently remain separated from their adopted child. The respondent Minister would in effect take away from the petitioners what already belongs to them as a vested legal right. The unfairness of such a situation created by the action of the public respondent is patently a wanton abuse of her discretion and a neglect of her plain duty to assist in the reasonable implementation of the final order of a proper court. In refusing to grant the travel clearance certificate, respondent MSSD discounts and negates the effects of a valid and final judgment of the court, regarding which no appeal had even been taken from. It is rather paradoxical that MSSD should be overly concerned over its claimed exclusive prerogative to conduct the case study work instead of placing more importance on the possible prejudicial effects of its refusal on the welfare of the child. MSSD is presumed to have constructive knowledge of the trial courts order and adoption proceedings because it was published in a newspaper of general circulation and copies of the order sent to all government offices concerned. The absence of any law that directs respondent Minister to issue a clearance to travel will not preclude this Court from issuing the writ of mandamus prayed for. What respondent has overlooked is the basic principle that judgments, orders or processes of the court should be enforced by public officers and obeyed by those affected by the judgment of the court. As the right of the adoptive child and the adopting parents to live together is inherent in an order or judgment granting adoption, it becomes no less a duty of the public officers concerned to translate the effects of such a judgment or order into reality. Under Section 5, Rule 135 of the Rules of Court, it is an inherent power given to the courts to compel obedience to its judgments, orders and processes. Writ of Mandamus Isssued Topic: PA over the childrens person G.R. No. L-68374 June 18, 1985 HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners, vs. INTERMEDIATE APPELLATE COURT, HON ROQUE A. TAMAYO, as Presiding Judge of Regional Trial Court, NCR Branch CXXXI1 Makati, Metro Manila, MARIA LOURDES SANTOS, and SIXTO SALUMBIDES, respondents. Facts: Spouses Luna, petitioners herein are childless but Horacio has an illegitimate child named Maria Lourdes who is married to Sixto Salumbides. Maria Lourdes and Sixto has a child named Shirley. Shirley who was entrusted by her

parents to petitioners lives with the latter. Petitioners (the grandparents) are also the ones who send Shirley to school. Petitioners went to the US so while they were away Shirley was left to her parents. Upon petitioners return in the Philippines, the parents refused to return Shirley to them so they filed a petition for habeas corpus. The CFI ruled in favor of petitioners but on appeal, the lower court was reversed. The SC in a minute resolution affirmed the CA and denied the petition for lack of merit. Upon finality of the judgment, the case was remanded to the lower court who issued a writ of execution. Issue: WON not procedural rules more particularly the duty of lower courts to enforce a final decision of appellate courts in child custody cases, should prevail over and above the desire and preference of the child, to stay with her grandparents instead of her biological parents and who had signified her intention Up kill herself or run away from home if she should be separated from her grandparents and forced to live with her biological parents? Held: No. The childs welfare should prevail over procedural rules. We find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or run away from home if she should be taken away from the herein petitioners and forced to live with the private respondents, made during the hearings on the petitioners' motion to set aside the writ of execution and reiterated in her letters to the members of the Court dated September 19, 1984 4 and January 2, 1985, 5 and during the hearing of the case before this Court, is a circumstance that would make the execution of the judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal inequitable, unfair and unjust, if not illegal. Article 363 of the Civil Code provides that 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. 6 The threat may be proven empty, but Shirley has a right to a wholesome family life that will provide her with love, care and understanding, guidance and counseling. and moral and material security. 7 But what if the threat is for real.? Petitioners given custody of the child. Dissent: The real parents should have custody of the child. Since the rights of parents to the custody of their minor children is both a natural and a legal right, the law could not disturb the parent-child relationship except for the strongest reasons, and only upon a clear showing of a parent's gross misconduct or unfitness, or of other

extraordinary circumstances affecting the welfare of the child. As long as the parents are living and they have not lost their parental authority, patria potestas is limited to them. Other ascendants have no authority over the children, even if the parents of the latter are minors (2 Manresa 13, cited in p. 661, Comments and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.). Parental authority is inalienable and every abdication of this authority by the parents is void. Whatever agreement or arrangement there was between petitioners and respondents when the child Shirley was given to the former, the same has not been validated nor legalized by the mere fact that the said girl had stayed with the petitioners for a number of years, in view of the explicit provision of Article 313 mandating that parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession. Evidently, the present petition for custody of petitioners runs counter to the parental preference rule. Under the socalled parental preference rule, a natural parent, father or mother, as the case may be, who is of good character and a proper person to have the custody of the child and is reasonably able to provide for such child, ordinarily is entitled to the custody as against all persons. Accordingly, such parents are entitled to the custody of their children as against foster or prospective adoptive parents: and such entitlement applies also as against other, relatives of the child, including grandparents, or as against an agency or institution. The preference of a child is only one factor to be considered, and it is not controlling, decisive, or determinative. Thus, notwithstanding the preference, the court has a discretion to determine the question of custody, and it is not error for the court to refuse to discuss the custody issue with the child, The rights of a parent will not be disregarded in order to gratify the mere wishes of a child where a parent is found to be a proper person to be entrusted with the custody of a child