Persons Take 2

PERSONS & FAMILY RELATIONS (Case Digests)
1
ESPIRITU v. CA
1
Facts: Reynaldo Espiritu and Teresita Marauding met in
Iligan City sometime in 1976. In 1977, Teresita left for LA
to work as a nurse and was able to acquire immigrant
status sometime later. In 1984, reynaldo was sent to
Pittsburg as liaison officer to the National Steel
Corporation. It was when they began to maintain a
common law relationship of husband and wife which
resulted to the birth of Rosalind. On Octiber 7, 1987, while
they were on a brief vacation in the Philippines, they got
married and upon their return to the US, Reginald was
born on January 12, 1988. The couple separated in 1990.
Teresita left Reynaldo and the children and went back to
Cali. Reynaldo brought the children home to the
Philippines, but was sent back by his company to Pittsburg
to complete his assignment. He left the children with his
sister and family.
Teresita does not deny tthat she was legally married to
Roberto Lustado on December 17, 1984 and a year later
drove across US to commence living with Reynaldo. After
the sepraration, she went back to Cali and later decided to
return to the Philippines. On December 8, 1992, she filed
the petition for writ of habeas corpus against Reynaldo to
gain custody over the children.
The TC dismissed the petition for habeas corpus
suspending Teresitas authority over the children and
declaring Reynaldo to have the sole parental authority
over them, The CA revsed the decision giving custody to
Teresita applying Article 363 of the CC and Article 213 of
the FC.
TC dismissed the petition for habeas corpus. It suspended
Teresita's parental authority over Rosalind and Reginald
and declared Reynaldo to have sole parental authority
over them but with rights of visitation to be agreed upon
by the parties and to be approved by the Court.
CA reversed the TCs ruling.
Issue:
Held: We believe that respondent court resolved the
question of custody over the children through an
automatic and blind application of the ageprovisoof
Article 363 of the Civil Code which reads:

1
This case concerns a seemingly void marriage and a
relationship which went sour. The innocent victims are
two children horn out of the same union. Upon this Court
now falls the not too welcome task of deciding the issue of
who, between the father and mother, is more suitable and
better qualified in helping the children to grow into
responsible, well-adjusted, and happy young adulthood.
Art. 363. In all questions on the care,
custody, education and property of the
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.
and of Article 213 of the Family Code which in
turn provides:
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.
The decision under review is based on the report of the
Code Commission which drafted Article 213 that a child
below seven years still needs the loving, tender care that
only a mother can give and which, presumably, a father
cannot give in equal measure. The commentaries of a
member of the Code Commission, former Court of
Appeals Justice Alicia Sempio-Diy, in a textbook on the
Family Code, were also taken into account. Justice Diy
believes that a child below seven years should still be
awarded to her mother even if the latter is a prostitute or
is unfaithful to her husband. This is on the theory that
moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of
the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract
presumption of law rather than an appreciation of
relevant facts and the law which should apply to those
facts. The task of choosing the parent to whom custody
shall be awarded is not a ministerial function to be
determined by a simple determination of the age of a
minor child. Whether a child is under or over seven years
of age, the paramount criterion must always be the
child's interests. Discretion is given to the court to decide
who can best assure the welfare of the child, and award
the custody on the basis of that consideration. InUnson
III vs. Navarro(101 SCRA 183 [1980]), we laid down the
rule that "in all controversies regardingthe custody of
minors, the sole and foremost consideration is the
physical, education, social and moral welfare of the child
concerned, takinginto account the respective resources
and social and moral situations of the contending
parents", and inMedina vs. Makabali (27 SCRA 502
[1969]), where custody of the minor was given to a non-
relative as against the mother, then the country's leading
2
civilist, Justice J.B.L. Reyes, explained its basis in this
manner:
. . . While our law recognizes the right
of a parent to the custody of her child,
Courts must not lose sight of thebasic
principle that "in all questions on the
care, custody, education and property
of children, the latter's welfare shall
be paramount" (Civil Code of the
Philippines. Art. 363), and that for
compelling reasons, even a child
under seven may be ordered
separated from the mother (do). This
is as it should be, for in the continual
evolution of legal institutions,
thepatria potestashas been
transformed from thejus vitae ac
necis(right of life and death) of the
Roman law, under which the offspring
was virtually a chattel of his parents
into a radically different institution,
due to the influence of Christian faith
and doctrines. The obligational aspect
is now supreme. As pointed out by
PuigPena, now "there is no power,
but a task; no complex of rights (of
parents) but a sum of duties; no
sovereignty, but a sacred trust for the
welfare of the minor."
As a result, the right of parents to the
company and custody of their children
is but ancillary to the proper discharge
of parental duties to provide the
children with adequate support,
education, moral, intellectual and
civic training and development (Civil
Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child,
courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under
seven years of age, the law presumes that the mother is
the best custodian. The presumption is strongbut it is
not conclusive. It can be overcome by "compelling
reasons". If a child is over seven, his choice is paramount
but, again, the court is not bound by that choice. In its
discretion, the court may find the chosen parent unfit
and award custody to the other parent, or even to a third
party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now
over seven years of age. Rosalind celebrated her seventh
birthday on August 16, 1993 while Reginald reached the
same age on January 12, 1995. Both are studying in
reputable schools and appear to be fairly intelligent
children, quite capable of thoughtfully determining the
parent with whom they would want to live. Once the
choice has been made, the burden returns to the court to
investigate if the parent thus chosen is unfit to assume
parental authorityand custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of
scrutinizing the records to discover the choice of the
children and rather than verifyingwhether that parent is
fit or unfit, respondent court simply followed statutory
presumptions and general propositions applicable to
ordinary or common situations. The seven-year age limit
was mechanically treated as an arbitrary cut off period
and not a guide based on a strong presumption.
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. 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 saythat his or her sufferingis 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.
We are inclined to sustain the findings and conclusions of
the regional trial court because it gave greater attention
to the choice of Rosalind and considered in detail all the
relevant factors bearingon the issue of custody.
When she was a little over 5 years old, Rosalind was
referred to a child psychologist, Rita Flores Macabulos, to
determine the effects of uprooting her from the
Assumption College where she was studying. Four
different tests were administered. The results of the tests
are quite revealing. The responses of Rosalind about her
mother were very negative causingthe psychologist to
delve deeper into the child's anxiety. Among the things
revealed by Rosalind was an incident where she saw her
mother hugging and kissing a "bad" man who lived in their
house and worked for her father. Rosalind refused to talk
to her mother even on the telephone. She tended to be
emotionally emblazed because of constant fears that she
may have to leave school and her aunt's family to go back
to the United States to live with her mother. The 5-1/2
page report deals at length with feelings of insecurity and
anxiety arisingfrom strongconflict with the mother. The
child tried to compensate by havingfantasy activities. All
3
of the 8 recommendations of the child psychologist show
that Rosalind chooses petitioners over the private
respondent and that her welfare will be best served by
stayingwith them (pp. 199-205, Rollo).
At about the same time, a social welfare case study was
conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare
Officer Emma D. Estrada Lopez, stated that the child
Rosalind refused to go back to the United States and be
reunited with her mother. She felt unloved and uncared
for. Rosalind was more attached to her Yaya who did
everything for her and Reginald. The child was found
sufferingfrom emotional shock caused by her mother's
infidelity. The application for travel clearance was
recommended for denial (pp. 206-209, Rollo).
Respondent Teresita, for her part, argues that the 7-year
age reference in the law applies to the date when the
petition for a writ of habeas corpusis filed, not to the date
when a decision is rendered. This argument is flawed.
Considerations involvingthe choice made by a child must
be ascertained at the time that either parent is given
custody over the child. The matter of custody is not
permanent and unalterable. 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 (UnsonIII v. Navarro,supra, at p. 189). 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. At the
present time, both children are over 7 years of age and
are thus perfectly capable of makinga fairly intelligent
choice.
According to respondent Teresita, she and her children
had tearful reunion in the trial court, with the children
crying, grabbing, and embracing her to prevent the father
from taking them away from her. We are more inclined to
believe the father's contention that the children ignored
Teresita in court because such an emotional display as
described by Teresita in her pleadings could not have
been missed by the trial court. Unlike the Justices of the
Court of Appeals Fourth Division, Judge Lucas P. Bersamin
personally observed the children and their mother in the
courtroom. What the Judge found is diametrically opposed
to the contentions of respondent Teresita. The Judge had
this to say on the matter.
And, lastly, the Court cannot look at
petitioner [Teresita] in similar light, or
with more understanding, especially as
her conduct and demeanor in the
courtroom (during most of the
proceedings) or elsewhere (but in the
presence of the undersigned presiding
judge) demonstrated her ebulent
temper that tended to corroborate
the alleged violence of her physical
punishment of the children (even if
only for ordinary disciplinary
purposes) and emotional instability,
typified by her failure (or refusal?) to
show deference and respect to the
Court and the other parties(pp. 12-13,
RTC Decision)
Respondent Teresita also questions the competence and
impartiality of the expert witnesses. Respondent court, in
turn, states that the trial court should have considered the
fact that Reynaldo and his sister, herein petitioner
Guillerma Layug, hired the two expert witnesses. Actually,
this was taken into account by the trial court which stated
that the allegations of bias and unfairness made by
Teresita against the psychologist and social worker were
not substantiated.
The trial court stated that the professional integrity and
competence of the expert witnesses and the objectivity
of the interviews were unshaken and unimpeached. We
might add that their testimony remain uncontroverted.
We also note that the examinations made by the experts
were conducted in late 1991, well over a year before the
filing by Teresita of thehabeas corpuspetition in
December, 1992. Thus, the examinations were at that
time not intended to support petitioners' position in
litigation, because there was then not even an impending
possibility of one. That they were subsequently utilized in
the casea quowhen it did materialize does not change
the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the
court must be construed to have been presented not to
sway the court in favor of any of the parties, but to assist
the court in the determination of the issue before it. The
persons who effected such examinations were presented
in the capacity of expert witnesses testifyingon matters
within their respective knowledge and expertise. On this
matter, this Court had occasion to rule in the case of Sali
vs. Abukakar, et al.
The fact that, in a particular litigation,
an NBI expert examines certain
contested documents, at the request,
not of a public officer or agency of the
Government, but of a private litigant,
does not necessarily nullify the
examination thus made. Its purpose,
presumably, to assist the court having
jurisdiction over said litigation, in the
performance of its duty to settle
correctly the issues relative to said
4
documents. Even a non-expert private
individual may examine the same, if
there are facts within his knowledge
which may help, the court in the
determination of said issue. Such
examination, which may properly be
undertaken by a non-expert private
individual, does not, certainly become
null and void when the examiner is an
expert and/or an officer of the NBI.
In regard to testimony of expert witnesses it was held
inSalomon, et al. vs. Intermediate Appellate Court, et al.
(185 SCRA 352 [1990]):
. . . Although courts are not ordinarily
bound by expert testimonies, they may
place whatever weight they choose
upon such testimonies in accordance
with the facts of the case. The relative
weight and sufficiency of expert
testimony is peculiarly within the
province of the trial court to decide,
considering the ability and character of
the witness, his actions upon the
witness stand, the weight and process
of the reasoning by which he has
supported his opinion, his possible bias
in favor of the side for whom he
testifies, the fact that he is a paid
witness, the relative opportunities for
study and observation of the matters
about which he testifies, and any other
matters which reserve to illuminate his
statements. The opinion of the expert
may not be arbitrarily rejected; it is to
be considered by the court in view of
all the facts and circumstances in the
case and when common knowledge
utterly fails, the expert opinion may
be given controlling effect (20 Am.
Jur., 1056-1058). The problem of the
credibility of the expert witness and
the evaluation of his testimony is left
to the discretion of the trial court
whose ruling thereupon is not
reviewable in the absence of an abuse
of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the
opportunity to assess the witnesses' character and to
observe their respective demeanor that the trial court
opted to rely on their testimony, and we believe that the
trial court was correct in its action.
Under direct examination an February 4, 1993, Social
Worker Lopez stated that Rosalind and her aunt were
about to board a plane when they were off-loaded
because there was no required clearance. They were
referred to her office, at which time Reginald was also
brought along and interviewed. One of the regular duties
of Social Worker Lopez in her job appears to be the
interview of minors who leave for abroad with their
parents or other persons. The interview was for purposes
of foreign travel by a 5-year old child and had nothing to
do with any pending litigation. On cross-examination,
Social Worker Lopez stated that her assessment of the
minor's hatred for her mother was based on the
disclosures of the minor. It is inconceivable, much less
presumable that Ms. Lopez would compromise her
position, ethics, and the public trust reposed on a person
of her position in the course of doingher job by falsely
testifyingjust to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum
laude graduate in Psychology and an M.A. degree holder
also in Psychology with her thesis graded "Excellent". She
was a candidate for a doctoral degree at the time of the
interview. Petitioner Reynaldo may have shouldered the
cost of the interview but Ms. Macabulos services were
secured because Assumption College wanted an
examination of the child for school purposes and not
because of any litigation. She may have been paid to
examine the child and to render a finding based on her
examination, but she was not paid to fabricate such
findings in favor of the party who retained her services. In
this instance it was not even petitioner Reynaldo but the
school authorities who initiated the same. It cannot be
presumed that a professional of her potential and stature
would compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as
shown by her marrying Reynaldo at the
time she had a subsisting marriage
with another man.
2. She is guilty of grave indiscretion in
carrying on a love affair with one of
the Reynaldo's fellow NSC employees.
3. She is incapable of providing the
children with necessities and
conveniences commensurate to their
social standing because she does not
even own any home in the Philippines.
4. She is emotionally unstable with
ebullient temper.
5
It is contended that the above findings do not constitute
the compelling reasons under the law which would justify
depriving her of custody over the children; worse, she
claims, these findings are non-existent and have not been
proved by clear and convincing evidence.
Public and private respondents give undue weight to the
matter of a child under 7 years of age not to be separated
from the mother, without considering what the law itself
denominates as compelling reasons or relevant
considerations to otherwise decree. In theUnson III case,
earlier mentioned, this Court stated that it found no
difficulty in not awarding custody to the mother, it being in
the best interest of the child "to be freed from the
obviously unwholesome, not
to say immoral influence, that the situation where [the
mother] had placed herself . . . might create in the moral
and social outlook of [the child] who was in her formative
and most impressionable stage . . ."
Then too, it must be noted that both Rosalind and
Reginald are now over 7 years of age. They understand
the difference between right and wrong, ethical behavior
and deviant immorality. Their best interests would be
better served in an environment characterized by
emotional stability and a certain degree of material
sufficiency. There is nothingin the records to show that
Reynaldo is an "unfit" person under Article 213 of the
Family Code. In fact, he has been tryinghis best to give
the children the kind of attention and care which the
mother is not in a position to extend.
The argument that the charges against the mother are
false is not supported by the records. The findings of the
trial court are based on evidence.
Teresita does not deny that she was legally married to
Roberto Lustado on December 17, 1984 in California (p.
13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC
Decision). Less than a year later, she had already driven
across the continental United States to commence living
with another man, petitioner Reynaldo, in Pittsburgh. The
two were married on October 7, 1987. Of course, to dilute
this disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo,
Teresita tried to picture Reynaldo as a rapist, alleging
further that she told Reynaldo about her marriage to
Lustado on the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC lent
no weight to such tale. And even if this story were given
credence, it adds to and not subtracts from the conviction
of this Court about Teresita's values. Rape is an insidious
crime against privacy. Confidingto one's potential rapist
about a prior marriage is not a very convincingindication
that the potential victim is averse to the act. The
implication created is that the act would be acceptable if
not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior
marriage only much later. In fact, the rape incident itself
is unlikely against a woman who had driven three days
and three nights from California, who went straight to
the house of Reynaldo in Pittsburgh and upon arriving
went to bed and, who immediately thereafter started to
live with him in a relationship which is marital in nature if
not in fact.
Judge Bersamin of the court a quobelieved the testimony
of the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio
Gonzales right there in the house of petitioner Reynaldo
and respondent Teresita. Perdencio had been assigned by
the National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-
employee, in the latter's house. The record shows that the
daughter Rosalind suffered emotional disturbance caused
by the traumatic effect of seeingher mother huggingand
kissinga boarder in their house. The record also shows
that it was Teresita who left the conjugal home and the
children, bound for California. When Perdencio Gonzales
was reassigned to the Philippines, Teresita followed him
and was seen in his company in a Cebu hotel, stayingin
one room and takingbreakfast together. More significant
is that letters and written messages from Teresita to
Perdencio were submitted in evidence (p.12, RTC
Decision).
The argument that moral laxity or the habit of flirting from
one man to another does not fall under "compelling
reasons" is neither meritorious nor applicable in this case.
Not only are the children over seven years old and their
clear choice is the father, but the illicit or immoral
activities of the mother had already caused emotional
disturbances, personality conflicts, and exposure to
conflictingmoral values, at least in Rosalind. This is not to
mention her conviction for the crime of bigamy, which
from the records appears to have become final (pp. 210-
222,Rollo).
Respondent court's finding that the father could not very
well perform the role of a sole parent and substitute
mother because his job is in the United States while the
children will be left behind with their aunt in the
Philippines is misplaced. The assignment of Reynaldo in
Pittsburgh is or was a temporary one. He was sent there
to oversee the purchase of a steel mill component and
various equipment needed by the National Steel
Corporation in the Philippines. Once the purchases are
completed, there is nothingto keep him there anymore.
In fact, in a letter dated January 30, 1995, Reynaldo
informs this Court of the completion of his assignment
6
abroad and of his permanent return to the Philippines(ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial
court. The children are now both over seven years old.
Their choice of the parent with whom theyprefer to stay
is clear from the record. From all indications, Reynaldo is
a fit person, thus meetingthe two requirements found in
the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article
no longer applies as the children are over seven years.
Assumingthat the presumption should have persuasive
value for children only one or two years beyond the age
of seven years mentioned in the statute, there are
compellingreasons and relevant considerations not to
grant custody to the mother. The children understand the
unfortunate shortcomings of their mother and have been
affected in their emotional growth by her behavior.
SANTOS, SR. v. CA
2
ONLY WHEN THE PARENT CHOSEN ISUNFIT MAY
PARENTAL AUTHORITY EXERCISED BY THE
GRANDPARENTS
Facts:On September 2, 1990, petitioner along with his two
brothers, visited the Bedia household, where three-year
old Leouel Jr. was staying. Private respondents contend
that through deceit and false pretensions, petitioner
abducted the boy and clandestinely spirited him away to
his hometown in Bacong, Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody
and Control of Minor Ward Leouel Santos Jr.," before the
Regional Trial Court of Iloilo City, with Santos, Sr. as
respondent.
TC awarded custody of minor Louel Jr. to his maternal
grandparents.

2
In this petition for review, we are asked to overturn the
decision of the Court of Appeals
1
granting custody of six-
year old Leouel Santos, Jr. to his maternal grandparents
and not to his father, Santos, Sr. What is sought is a
decision which should definitively settle the matter of the
care, custody and control of the boy.
Happily, unlike King Solomon, we need not merely rely on
a "wise and understanding heart," for there is man's law to
guide us and that is, the Family Code.
CA upheld the TCs ruling.
On the other hand, private respondents aver that they can
provide an air-conditioned room for the boy and that
petitioner would not be in a position to take care of his
son since he has to be assigned to different places. They
also allege that the petitioner did not give a single centavo
for the boy's support and maintenance. When the boy was
about to be released from the hospital, they were the
ones who paid the fees because their daughter and
petitioner had no money. Besides, Julia Bedia Santos, their
daughter, had entrusted the boy to them before she left
for the United States. Furthermore, petitioner's use of
trickery and deceit in abducting the child in 1990, after
being hospitably treated by private respondents, does not
speak well of his fitness and suitability as a parent.
The Bedias argue that although the law recognizes the
right of a parent to his child's custody, ultimately the
primary consideration is what is best for the happiness and
welfare of the latter. As maternal grandparents who have
amply demonstrated their love and affection for the boy
since his infancy, they claim to be in the best position to
promote the child's welfare.
Issue: Who should properly be awarded custody of the
minor Leouel Santos, Jr.?
Held: The right of custody accorded to parents springs
from the exercise of parental authority. Parental authority
or patria potestasin Roman Law is the juridical institution
whereby parents rightfully assume control and
protection of their unemancipated children to the extent
required by the latter' s needs.
7
It is a mass of rights and
obligations which the law grants to parents for the
purpose of the children's physical preservation and
development, as well as the cultivation of their intellect
and the education of their heart and senses.
8
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."
9
Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases
authorized by law.
10
The right attached to parental
authority, beingpurely 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.
11
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.
12
Even if a definite renunciation is
manifest, the law still disallows the same.
13
7
The father and mother, beingthe natural guardians of
unemancipated children, are duty-bound and entitled to
keep them in their custody and
company.
14
The child's welfare is always the paramount
consideration in all questions concerning his care and
custody.
15
The law vests on the father and mother joint parental
authority over the persons of their common
children.
16
In case of absenceor deathof either parent,
the parent present shall continue exercising parental
authority.
17
Only in case of the parents' death, absence
or unsuitability may substitute parental authority be
exercised by the surviving grandparent.
18
The situation
obtaining in the case at bench is one where the mother of
the minor Santos, Jr., is working in the United States while
the father, petitioner Santos, Sr., is present. Not only are
they physically apart but are also emotionally separated.
There has been no decree of legal separation and
petitioner's attempt to obtain an annulment of the
marriage on the ground of psychological incapacity of his
wife has failed.
19
Petitioner assails the decisions of both the trial court and
the appellate court to award custody of his minor son to
his parents-in-law, the Bedia spouses on the ground that
under Art. 214 of the Family Code, substitute parental
authority of the grandparents is proper only when both
parents are dead, absent or unsuitable. Petitioner's
unfitness, according to him, has not been successfully
shown by private respondents.
The Court of Appeals held that although there is no
evidence to show that petitioner (Santos Sr.) is "depraved,
a habitual drunkard or poor, he may nevertheless be
considered, as he is in fact so considered, to be unsuitable
to be allowed to have custody of minor Leouel Santos
Jr."
20
The respondent appellate court, in affirming the trial
court's order of October 8, 1990, adopted as its own the
latter's observations, to wit:
From the evidence adduced, this Court
is of the opinion that it is to be (sic)
best interest of the minor Leouel
Santos, Jr. that he be placed under the
care, custody, and control of his
maternal grandparents the petitioners
herein. The petitioners have amply
demonstrated their love and devotion
to their grandson while the natural
father, respondent herein, has shown
little interest in his welfare as reflected
by his conduct in the past. Moreover
the fact that petitioners are well-off
financially, should be carefully
considered in awarding to them the
custody of the minor herein, lest the
breaking of such ties with his maternal
grandparents might deprive the boy of
an eventual college education and
other material advantages (Consaul vs.
Consaul, 63 N.Y.S. 688). Respondent
had never given any previous financial
support to his son, while, upon the
other hand, the latter receives so
much bounty from his maternal
grandparents and his mother as well,
who is now gainfully employed in the
United States. Moreover, the fact that
respondent, as a military personnel
who has to shuttle from one
assignment to another, and, in these
troubled times, may have pressing and
compelling military duties which may
prevent him from attending to his son
at times when the latter needs him
most, militates strongly against said
respondent. Additionally, the child is
sickly and asthmatic and needs the
loving and tender care of those who
can provide for it.
21
We find the aforementioned considerations insufficient
to defeat petitioner's parental authority and the
concomitant right to have custody over the minor Leouel
Santos, Jr., particularly since he has not been shown to
be an unsuitable and unfit parent. Private respondents'
demonstrated love and affection for the boy,
notwithstanding, the legitimate father is still preferred
over the grandparents.
22
The latter's wealth is not a
deciding factor, particularly because there is no proof
that at the present time, petitioner is in no position to
support the boy. The fact that he was unable to provide
financial support for his minor son from birth up to over
three years when he took the boy from his in-laws
without permission, should not be sufficient reason to
strip him of his permanent right to the child's custody.
While petitioner's previous inattention is inexcusable and
merits only the severest criticism, it cannot be construed
as abandonment. His appeal of the unfavorable decision
against him and his efforts to keep his only child in his
custody may be regarded as serious efforts to rectify his
past misdeeds. To award him custody would help
enhance the bond between parent and son. It would also
give the father a chance to prove his love for his son and
for the son to experience the warmth and support which
a father can give.
His being a soldier is likewise no bar to allowing him
custody over the boy. So many men in uniform who are
8
assigned to different parts of the country in the service of
the nation, are still the natural guardians of their
children. It is not just to deprive our soldiers of authority,
care and custody over their children merely because of
the normal consequences of their duties and
assignments, such as temporary separation from their
families.
Petitioner's employment of trickery in spiritingaway his
boy from his in-laws, though unjustifiable, is likewise not
a ground to wrest custody from him.
Private respondents' attachment to the youngboy whom
they have reared for the past three years is
understandable. Still and all, the law considers the
natural love of a parent to outweigh that of the
grandparents, such that only when the parent present is
shown to be unfit or unsuitable may the grandparents
exercise substitute parental authority, a fact which has
not been proven here.
The strong bonds of love and affection possessed by
private respondents as grandparents should not be seen
as incompatible with petitioner' right to custody over the
child as a father. Moreover, who is to say whether the
petitioner's financial standing may improve in the future?
SAGALA-ESLAO v. CA
3
Facts: After their marriage, spouses Maria Paz Cordero-
Ouye and Reynaldo Eslao stayed with Teresita Eslao,
mother of the husband. In the meantime, Leslie was
entrusted to the care and custody of petitioners mother
in Pampanga, while Angelica stayed with her parents at
respondents house. On Agust 1990, petitioners husband
died. Petitioner intended to bring Angelica to Pampanga
but the respondent reasoning out that her son just died
and to assuage her grief therefore, she needed the
company of the child to at least compensate for the loss of
her late son.
Subsequently, petitioner got amrried to Dr. Ouye and
thereafter migrated to San Francisco on January 1993. On
June 1993, petitioner returned to the Philippines to be

3
Children begin by loving their parents. After a time they
judge them. Rarely, if ever, do they forgive them. Indeed,
parenthood is a riddle of no mean proportions except for
its mission. Thus, a mothers concern for her childs
custody is undying - such is a mothers love.
The right of the mother to the custody of her
daughter is the issue in the case at bar.
reunited with her children and bring them back to the US.
Petitioner informed her desire to take custody of Angelica
bust respondent resisted explaining that the child was
entrusted to her when she was 10 days old and accused
petitioner of having abandoned her child. The TC rendered
a decision in favor of
TC ordered the paternal grandmother to transfer the
custody of Angelica to her mother.
CA affirmed the TCs ruling.
Issue: W/N the mother has the right of custody over her
child.
Held: Despite the foregoing, however, and petitioners
genuine desire to remain with said child, that would
qualify her to have custody of Angelica, the trial courts
disquisition, in consonance with the provision that the
childs welfare is always the paramount consideration in
all questions concerninghis care and custodyconvinced
this Court to decide in favor of private respondent, thus:
The petitioner herein is married to an Orthodontist who
has a lucrative practice of his profession in San Francisco,
California, USA. The petitioner and her present husband
have a home of their own and they have three cars. The
petitioners husband is willing to adopt the petitioners
children. If the children will be with their mother, the
probability is that they will be afforded a bright
future. Contrast this situation with the one prevailingin
the respondents [grandmothers] house. As admitted by
the respondent, four of the rooms in her house are being
rented to other persons with each room occupied by 4to
5 persons. Added to these persons are the respondents
2 sons, Samuel and Alfredo, and their respective families
(ibid., p. 54) 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
involvingthe custody of minors, the foremost criterion is
the physical and moral well beingof the child takinginto
account the respective resources and social and moral
situations of the contending parties (Union III vs.
Mariano, 101 SCRA 183), the Court is left with no other
recourse but to grant the writ prayed for.
Petitioner further contends that the respondent
court erred in finding that there was no abandonment
committed by the private respondent; that while judicial
declaration of abandonment of the child in a case filed for
the purpose is not here obtaining as mandated in Art. 229
of the Family Code because petitioner failed to resort to
such judicial action, it does not ipsofactofollow that there
9
was in fact no abandonment committed by the private
respondent.
Petitioner also argues that it has been amply
demonstrated during the trial that private respondent had
indeed abandoned Angelica to the care and custody of the
petitioner; that during all the time that Angelica stayed
with petitioner, there were only three instances or
occasions wherein the private respondent saw Angelica;
that private respondent 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;that while private respondent claims otherwise
and that she visited Angelica "many times" an 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.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, we
stated, viz:
xxx [Parental authority] is a mass of rights and
obligations which the law grants to parents for the
purpose of the childrens physical preservation and
development, as well as the cultivation of their intellect
and the education of their heart and senses. As regards
parental authority, there is no power, but a task; no
complex of rights, but a sum of duties; no sovereignty but
a sacred trust for the welfare of the minor.
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, beingpurely personal, the law allows a waiver
of parental authority only in cases of adoption,
guardianship and surrender to a childrens 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.
The father and mother, beingthe natural guardians of
unemancipated children, are duty-bound and entitled to
keep them in their custody and company.
Thus, in the instant petition, when private
respondent entrusted the custody of her minor child to
the petitioner, 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 childrens home or an orphan institution which do not
appear in the case at bar.
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.
LAXAMANA v. LAXAMANA
Facts: Reymond Laxamana and Ma. Lourdes Laxamana
met sometime in 1983. Petitioner Reymond came from a
well-to-do family, and was a graduate of law. Respondent
works in a bank. They got married in june 1984. All wne
twell until Reymond became drug dependent. Despite
several confinements, his drug dependence worsened and
it became difficult for Lourdes and her children to live with
him. They abandoned Reymond and transferred to the
house of Lourdes relatives. Reymond filed a petition for
habeas corpus praying for the custody of the children. The
TC granted the custody to Lourdes while Reymond was
granted visitation rights.
Issue: W/N the trial court considered the paramount
interest and welfare of the children in awarding their
custody to respondent.
Held: In controversies involving the care, custody and
control of their minor children, the contending parents
stand on equal footing before the court who shall make
the selection according to the best interest of the
child. The child if over seven years of age may be
permitted to choose which parent he/she prefers to live
with, but the court is not bound by such choice if the
parent so chosen is unfit. In all cases, the sole and
foremost consideration is the physical, educational, social
and moral welfare of the child concerned, taking into
account the respective resources as well as social and
moral situations of the opposingparents.
InMedina v. Makabali, we stressed that this is as it
should be, for in the continual evolution of legal
institutions, thepatria potestas has been transformed
from thejus vitae ac necis(right of life and death) of the
Roman law, under which the offspring was virtually a
chattel of his parents, into a radically different institution,
due to the influence of Christian faith and doctrines. The
obligational aspect is now supreme. There is no power,
but a task; no complex rights of parents but a sum of
duties; no sovereignty, but a sacred trust for the welfare
of the minor.
Mindful of the nature of the case at bar, the court a
quoshould have conducted a trial notwithstanding the
10
agreement of the parties to submit the case for resolution
on the basis, inter alia, of the psychiatric report of Dr.
Teresito. Thus, petitioner is not estopped from
questioning the absence of a trial considering that said
psychiatric report, which was the courts primary basis in
awarding custody to respondent, is insufficient to justify
the decision. The fundamental policy of the State to
promote and protect the welfare of children shall not be
disregarded by mere technicality in resolving disputes
which involve the family and the youth.
[17]
While
petitioner may have a history of drug dependence, the
records are inadequate as to his moral, financial and social
well-being. The results of the psychiatric evaluation
showing that he is not yet completely cured may
render him unfit to take custody of the children, but
there is no evidence to show that respondent is unfit to
provide the children with adequate support, education,
as well as moral and intellectual training and
development.Moreover, the children in this case were 14
and 15 years old at the time of the promulgation of the
decision, yet the court did not ascertain their choice as to
which parent they want to live with. In its September 8,
1999 order, the trial court merely stated that: The
children were asked as to whether they would like to be
with petitioner but there are indications that they
entertain fears in their hearts and want to be sure that
their father is no longer a drug dependent.
[18]
There is no
showingthat the court ascertained the categorical choice
of the children. These inadequacies could have been
remedied by an exhaustive trial probinginto the accuracy
of Dr. Ocampos report and the capacity of both parties
to raise their children. The trial court was remiss in the
fulfillment of its duties when it approved the agreement
of the parties tosubmit the case for decision on the basis
of sketchy findings of facts.
InLacson v. Lacson,
[19]
the case was remanded to the
trial court with respect to the issue of custody. In the said
case, the court a quoresolved the question of the
childrens custody based on the amicable settlement of
the spouses. Stressing the need for presentation of
evidence and a thorough proceedings, we explained
It is clearthat every child [has] rights which are not and
should not be dependent solely on the wishes, much less
the whims and caprices, of his parents. His welfare
should not be subject to the parents' say-so or mutual
agreement alone. Where, as in this case, the parents are
already separated in fact, the courts must step in to
determine in whose custody the child can better be
assured the rights granted to him by law. The need,
therefore, to present evidence regarding this matter,
becomes imperative. A careful scrutiny of the records
reveals that no such evidence was introduced in the CFI.
This latter court relied merely on the mutual agreement
of the spouses-parents. To be sure, this was not sufficient
basis to determine the fitness of each parent to be the
custodian of the children.
Besides, at least one of the children Enrique, the eldest
is now eleven years of age and should be given the
choice of the parent he wishes to live with. x x x.
In the instant case, the proceedings before the trial
court leave much to be desired. While a remand of this
case would mean further delay, the childrens paramount
interest demand that further proceedings be conducted
to determine the fitness of both petitioner and
respondent to assume custody of their minor children.
GUALBERTO v. GUALBERTO
Facts:
Issue:
Held: Custody of a Minor Child
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
custodypendente liteof 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.
Article 213of the Family Code
[31]
provides:
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.
No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to
order otherwise.
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:
Art. 363. In all questions on the care, custody, education
and property of children, the latters welfare shall be
paramount. No mother shall be separated from her child
11
under seven years of age, unless the court finds compelling
reasons for such measure.(Italics supplied)
The general rule that children under seven years of
age shall not be separated from their mother finds
itsraison detrein the basic need of minor children for
their mothers lovingcare.
[33]
In explaining the rationale
for Article 363 of the Civil Code, the Code Commission
stressed thus:
The general rule is recommended in order to avoid a
tragedy where a mother has seen her baby torn away
from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for compelling
reasons for the good of the child: those cases must
indeed be rare, if the mothers 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)
A similar provision is embodied in Article 8 of the
Child and Youth Welfare Code (Presidential Decree No.
603).
[34]
Article 17 of the same Code is even more explicit
in providing for the childs 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:
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 fathers
decision shall prevail unless there is a judicial order to the
contrary.
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 parents remarriage, the court for justifiable
reasons, appoints another person as guardian.
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)
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 211
[35]
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
belowsevenyears should not be separated from the
mother.
[38]
Mandatory Character
of Article 213 of the Family Code
InLacson 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:
[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]
In like manner, the word shall in Article 213 of the
Family Code and Section 6
[42]
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.
The Best Interest of the Child
a Primary Consideration
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, thebest interests of the childshall be a
primary consideration.
[45]
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
12
would have a bearingon the childrens well-beingand
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
childrens emotional and educational needs
Tender-Age
Presumption
As pointed out earlier, there is express statutory
recognition that, as a general rule, a mother is to be
preferred in awardingcustody 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]
The so-calledtender-age presumptionunder
Article 213 of the Family Code may be overcome only
bycompellingevidence of the mothers unfitness. The
mother has been declared unsuitable to have custodyof
her children in one or more of the followinginstances:
neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of
the child, insanity or affliction with a communicable
disease.
[49]
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, themothers immoral conduct may
constitute a compelling reason to deprive her of
custody.
[50]
But sexual preference or moral laxityalonedoes
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 offendingspouse from
exercisingproper parental care.
[52]
To this effect did the Court rule inUnson III v.
Navarro,
[53]
wherein the mother was openly livingwith
her brother-in-law, the childs uncle. Under that
circumstance, the Court deemed it in the nine-year-old
childs 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 childs] moral and social outlook.
[54]
InEspiritu 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 seeingher mother huggingand kissinga
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 conflictingmoral values x x x.
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 childs proper moral development.
Such a fact has not been shown here. There is no
evidence that the son was exposed to the mothers
alleged sexual proclivities or that his proper moral and
psychological development suffered as a result.
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
separatingthe child from his mother. 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 childs 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
mothers custody.
No Grant of Habeas Corpus
and Preliminary Injunction
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 legto 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.
On the other hand, the ancillary remedy of
preliminary mandatory injunction cannot be granted,
because Crisantos 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
13
requires the performance of a particular act that tends to
go beyond the maintenanceof the status quo.
[59]
Besides,
such an injunction would serve no purpose, now that the
case has been decided on its merits.
SALIENTESv. ABANILLA
Facts:LoranAbanillaand Marie Salientesare the parentsof theminor,
Lorenzo. Theylived with Marie'sparents. Due to in-law problems,
Abanillasuggested to hiswife that theytransfer to their own house, but
Salientesrefused. Abanillaleft the house, and wasthereafter prevented
fromseeinghisson.
Abanilla, in hispersonal capacityand asarepresentative ofhisson, filed a
petition for habeascorpusandcustodybefore theRTCof Muntinlupa
City. The trial court orderedtheSalientesesto produce and bringbefore
the court thebodyof Lorenzo, and to show cause whythe child should
not be discharged fromrestraint.
Salientesesfiled apetition for certiorari with the CA, but itwasdismissed.
CA stated that the order of the trial court didnot award custodybutwas
simplyastandard order issuedfor the production of restrained persons.
The trial court wasstill about to conduct afull inquiry. A subsequent MR
waslikewise denied.
Salientesesfiled the current appeal bycertiorari
Petitioners contend that the order is contrary to Article
213
7
of the Family Code, which provides that no child
under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order
otherwise. They maintain that herein respondent Loran
had the burden of showing any compelling reason but
failed to present even aprima facieproof thereof.
Petitioners posit that even assuming that there were
compelling reasons, the proper remedy for private
respondent was simply an action for custody, but
not habeas corpus. Petitioners assert that habeas corpusis
unavailable against the mother who, under the law, has
the right of custody of the minor. They insist there was no
illegal or involuntary restraint of the minor by his own
mother. There was no need for the mother to show cause
and explain the custody of her very own child.
Private respondent counters that petitioners argument
based on Article 213 of the Family Code applies only to the
second part of his petition regarding the custody of his
son. It does not address the first part, which pertains to his
right as the father to see his son. He asserts that the writ
of habeas corpusis available against any person who
restrains the minors right to see his father andvice versa.
He avers that the instant petition is merely filed for delay,
for had petitioners really intended to bring the child
before the court in accordance with the new rules on
custody of minors, they would have done so on the dates
specified in the January 23, 2003 and the February 24,
2003 orders of the trial court.
Private respondent maintains that, under the law, he and
petitioner Marie Antonette have shared custody and
parental authority over their son. He alleges that at times
when petitioner Marie Antonette is out of the country as
required of her job as an international flight stewardess,
he, the father, should have custody of their son and not
the maternal grandparents.
Issue:
Held: Habeas corpusmay be resorted to in cases where
rightful custody is withheld from a person entitled
thereto.
9
Under Article 211 of the Family Code,
respondent Loran and petitioner Marie Antonette have
joint parental authority over their son and consequently
joint custody. Further, although the couple is separatedde
facto, the issue of custody has yet to be adjudicated by the
court. In the absence of a judicial grant of custody to one
parent, both parents are still entitled to the custody of
their child. In the present case, private respondents
cause of action is the deprivation of his right to see his
child as alleged in his petition. Hence, the remedy
ofhabeas corpusis available to him.
In a petition for habeas corpus, the childs welfare is the
supreme consideration. The Child and Youth Welfare
Code unequivocally provides that in all questions
regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration.
Again, it bears stressing that the order did not grant
custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and
explain why private respondent is prevented from seeing
his child. This is in line with the directive in Section 9of
A.M. 03-04-04-SCthat within fifteen days after the filing of
the answer or the expiration of the period to file answer,
the court shall issue an order requiring the respondent
(herein petitioners) to present the minor before the court.
This was exactly what the court did.
Moreover, Article 213 of the Family Code deals with the
judicial adjudication of custody and serves as a guideline
for the proper award of custody by the court. Petitioners
can raise it as a counter argument for private
respondents petition for custody. But it is not a basis for
preventingthe father to see his own child. Nothingin the
said provision disallows a father from seeingor visiting
his child under seven years of age.
In sum, the trial court did not err in issuing the orders
dated January 23, 2003 and February 24, 2003. Hence, the
14
Court of Appeals properly dismissed the petition for
certiorari against the said orders of the trial court.
GAMBOA-HIRSCH v. CA
Facts: Franklin and Agnes were married onDecember 23,
2000in the City of Bacolod, and established their conjugal
dwelling in Diniwid, BoracayIsland, Malay, Aklan.
OnDecember 21, 2002, a child was born to them and was
named Simone. In 2005, the couple started to have marital
problems as Agnes wanted to stay inMakati City,
whileFranklininsisted that they stay inBoracayIsland.
OnMarch 23, 2006, Agnes came to their conjugal home in
Boracay, and asked for money and for Franklins
permission for her to bring their daughter
toMakati Cityfor a brief vacation. Franklinreadily agreed,
but soon thereafter discovered that neither Agnes nor
their daughter Simone would be coming back to Boracay.
Franklinthen filed a petition for habeas corpus
before the CA for Agnes to produce Simone in court.
OnMay 19, 2006, the CA issued a Resolution which
ordered that a writ of habeas corpus be issued ordering
that Simone be brought before said court onMay 26, 2006.
After a series of hearings and presentation of evidence,
the CA, onJune 8, 2006, promulgated the assailed Decision
grantingFranklinjoint custody with Agnes of their minor
child. Agnes filed a Motion for Reconsideration of this
Decision, which was denied in the CAsAugust 3,
2006Resolution for lack of merit.
Issue:
Held: The CA committed grave abuse of discretion when it
granted joint custody of the minor child to both parents.
The Convention on the Rights of the Child provides that in
all actions concerningchildren, 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(emphasis supplied).
[5]
The Child and Youth
Welfare Code, in the same way, unequivocally provides
that in all questions regarding the care andcustody,
amongothers, of the child, his/her welfare shall be the
paramount consideration.
[6]
The so-calledtender-age presumptionunder
Article 213 of the Family Code may be overcome only
bycompelling evidence of the mothers unfitness. The
mother is declared unsuitable to havecustody of her
children in one or more of the following instances: neglect,
abandonment, unemployment, immorality, habitual
drunkenness, drugaddiction, maltreatment of the child,
insanity, or affliction with a communicable
disease.
[7]
Here, the mother was not shown to be
unsuitable or grossly incapable of caringfor her minor
child. All told, no compellingreason has been adduced to
wrench the child from the motherscustody.
DACASIN v. DACASIN
Facts: Petitioner Herald Dacasin (petitioner), American,
and respondent Sharon Del Mundo Dacasin
(respondent), Filipino, were married in Manila in April
1994. They have one daughter, Stephanie, born on 21
September 1995. In June 1999, respondent sought and
obtained from the Circuit Court, 19
th
Judicial Circuit, Lake
County, Illinois (Illinois court) a divorce decree against
petitioner.
[3]
In its ruling, the Illinois court dissolved the
marriage of petitioner and respondent, awarded to
respondent sole custody of Stephanie and retained
jurisdictionover the case for enforcement purposes.
On 28 January 2002, petitioner and respondent
executed in Manila a contract (Agreement
[4]
) for the joint
custody of Stephanie. The parties chose Philippine courts
as exclusive forum to adjudicate disputes arising from the
Agreement. Respondent undertook to obtain from the
Illinois court an order relinquishing jurisdiction to
Philippine courts.
In 2004, petitioner sued respondent in the Regional
Trial Court of Makati City, Branch 60 (trial court) to
enforce the Agreement. Petitioner alleged that in violation
of the Agreement, respondent exercised sole custody over
Stephanie.
Respondent sought the dismissal of the complaint
for, among others, lack of jurisdiction because of the
Illinois courts retention of jurisdiction to enforce the
divorce decree.
TC sustained respondents motion and dismissed the case
for lack of jurisdiction. It likewise denied petitioners MFR.
Issue: W/N has jurisdiction to take cognizance of
petitioners suit and enforce the Agreement on the joint
custody of the parties child.
Held: The trial court has jurisdiction to entertain
petitioners suit but not to enforce the Agreement which is
void. However, factual and equity considerations militate
against the dismissal of petitioners suit and call for the
remand of the case to settle the question of Stephanies
custody.
Regional Trial Courts Vested With Jurisdiction
to Enforce Contracts
15

Subject matter jurisdiction is conferred by law.
At the time petitioner filed his suit in the trial court,
statutory law vests on Regional Trial Courts exclusive
original jurisdiction over civil actions incapable of
pecuniary estimation. An action for specific performance,
such as petitioners suit to enforce the Agreement on
joint child custody, belongs to this species of actions.
Thus, jurisdiction-wise, petitioner went to the right court.
Indeed, the trial courts refusal to entertain
petitioners suit was grounded not on its lack of power to
do so but on its thinking that the Illinois courts divorce
decree stripped it of jurisdiction. This conclusion is
unfounded. What the Illinois court retained was
jurisdiction x x x for the purpose ofenforcingall and
sundrythe various provisions of [its] Judgmentfor
Dissolution.Petitioners suit seeks the enforcement not
of the various provisions of the divorce decree but of the
post-divorce Agreement on joint child custody. Thus, the
action lies beyond the zone of the Illinois courts so-called
retained jurisdiction.
Petitioners Suit Lacks Cause of Action
The foregoing notwithstanding, the trial court cannot
enforce the Agreement which is contrary to law.
In this jurisdiction, parties to a contract are free
to stipulate the terms of agreement subject to the
minimum ban on stipulations contrary to law, morals,
good customs, public order, or public policy.Otherwise,
the contract is denied legal existence, deemed
inexistent and void from the beginning.For lack of
relevant stipulation in the Agreement, these and other
ancillary Philippine substantive law serve as default
parameters to test the validity of the Agreements joint
child custody stipulations.
At the time the parties executed the Agreement on 28
January 2002, two facts are undisputed: (1) Stephanie
was under seven years old (having been born on 21
September 1995); and (2) petitioner and respondent
were no longer married under the laws of the United
States because of the divorce decree. The relevant
Philippine law on child custody for spouses separated in
fact or in law(under the second paragraph of Article 213
of the Family Code) is also undisputed: no child under
seven years of age shall be separated from the mother x
x x. (This statutory awardingof sole parental custodyto
the mother is mandatory,grounded on sound policy
consideration,subject only to a narrow exception not
alleged to obtain here.) Clearly then, the Agreements
object to establish a post-divorce joint custody regime
between respondent and petitioner over their child
under seven years old contravenes Philippine law.
The Agreement is not onlyvoid ab initiofor
beingcontrary to law, it has also been repudiated by the
mother when she refused to allow joint custody by the
father. The Agreement would be valid if the spouses have
not divorced or separated because the law provides for
joint parental authority when spouses live
together. However, upon separation of the spouses, the
mother takes sole custody under the law if the child is
below seven years old and any agreement to the contrary
is void. Thus, the law suspends the joint custody regime
for (1) children under seven of (2) separated or divorced
spouses. Simply put, for a child within this age bracket
(and for commonsensical reasons), the law decides for
the separated or divorced parents how best to take care
of the child and that is to give custody to the separated
mother. Indeed, the separated parents cannot contract
away the provision in the Family Code on the maternal
custody of children below seven years anymore than they
can privately agree that a mother who isunemployed,
immoral, habitually drunk, drugaddict, insane or afflicted
with a communicable disease will have sole custody of a
child under seven as these are reasons deemed
compelling toprecludethe application of the exclusive
maternal custody regime under the second paragraph of
Article 213.
It will not do to argue that the second paragraph
of Article 213 of the Family Code applies only to judicial
custodial agreements based on its text that No child
under seven years of age shall be separated from the
mother, unlessthe courtfinds compelling reasons to order
otherwise. To limit this provisions enforceability to
court sanctioned agreements while placing private
agreements beyond its reach is to sanction a double
standard in custody regulation of children under seven
years old of separated parents. This effectively
empowers separated parents, by the simple expedient of
avoidingthe courts, to subvert a legislative policy vesting
to the separated mother sole custody of her children
under seven years of age to avoid a tragedy where a
mother has seen her baby torn away from her. This
ignores the legislative basis that [n]o man can sound the
deep sorrows of a mother who is deprived of her child of
tender age.
It could very well be that Article 213s bias
favoring one separated parent (mother) over the other
(father) encourages paternal neglect, presumes incapacity
for joint parental custody, robs the parents of custodial
options, or hijacks decision-making between the separated
parents. However, these are objections which question
the laws wisdom not its validity or uniform
enforceability. The forum to air and remedy these
grievances is the legislature, not this Court. At any rate,
the rules seeming harshness or undesirability is
tempered by ancillary agreements the separated parents
may wish to enter such as grantingthe father visitation
16
and other privileges. These arrangements are not
inconsistent with the regime of sole maternal custody
under the second paragraph of Article 213 which merely
grants to the mother final authority on the care and
custody of the minor under seven years of age, in case of
disagreements.
Further, the imposed custodial regime under the second
paragraph of Article 213 is limited in duration, lasting
only until the childs seventh year. From the eighth year
until the childs emancipation, the law gives the
separated parents freedom, subject to the usual
contractual limitations, to agree on custody regimes they
see fit to adopt. Lastly, even supposingthat petitioner
and respondent are not barred from enteringinto the
Agreement for the joint custody of Stephanie,
respondent repudiated the Agreement by assertingsole
custody over Stephanie. Respondents act effectively
brought the parties back to ambit of the default custodial
regime in the second paragraph of Article 213 of the
Family Code vesting on respondent sole custody of
Stephanie.
Nor can petitioner rely on the divorce decrees
alleged invalidity - not because the Illinois court lacked
jurisdiction or that the divorce decree violated Illinois law,
but because the divorce was obtained by his Filipino
spouse- to support the Agreements enforceability. The
argument that foreigners in this jurisdiction are not bound
by foreign divorce decrees is hardly novel. Van Dorn v.
Romillosettled the matter by holding that an alien spouse
of a Filipino is bound by a divorce decree obtained
abroad. There, we dismissed the alien divorcees
Philippine suit for accounting of alleged post-divorce
conjugal property and rejected his submission that the
foreign divorce (obtained by the Filipino spouse) is not
valid in this jurisdiction in this wise:
There can be no question as
to the validity of that Nevada divorce
in any of the States of the United
States. The decree is binding on
private respondent as an American
citizen.For instance, private
respondent cannot sue petitioner, as
her husband, in any State of the
Union. What he is contendingin this
case is that the divorce is not valid
and binding in this jurisdiction, the
same beingcontrary to local law and
public policy.
It is true that owing to the nationality principle embodied
in Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines,
provided they are valid accordingto their national law. In
this case, the divorce in Nevada released private
respondent from the marriage from the standards of
American law, under which divorce dissolves the
marriage.
x x x x
Thus, pursuant to his national law, private respondent is
no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioners husband
entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own countrys Court, which
validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own
representation before said Court from asserting his right
over the alleged conjugal property.
We reiteratedVan DorninPilapil v. Ibay-
Somerato dismiss criminal complaints for adultery filed by
the alien divorcee (who obtained the foreign divorce
decree) against his former Filipino spouse because he no
longer qualified as offended spouse entitled to file the
complaints under Philippine procedural rules. Thus, it
should be clear by now that a foreigndivorce decree
carries as much validity against thealien divorceein this
jurisdictionasit does in the jurisdiction of the aliens
nationality, irrespective of who obtained the divorce.
The Facts of the Case and Nature of Proceeding
Justify Remand
Instead of ordering the dismissal of petitioners suit,
the logical end to its lack of cause of action, we remand
the case for the trial court to settle the question of
Stephanies custody. Stephanie is now nearly 15 years
old, thus removingthe case outside of the ambit of the
mandatory maternal custody regime under Article 213
and bringingit within coverage of the default standard
on child custody proceedings the best interest of the
child. As the question of custody is already before the trial
court and the childs parents, by executing the Agreement,
initially showed inclination to share custody, it is in the
interest of swift and efficient rendition of justice to allow
the parties to take advantage of the courts jurisdiction,
submit evidence on the custodial arrangement best
servingStephanies interest, and let the trial court render
judgment. This disposition is consistent with the settled
doctrine that in child custody proceedings, equity may be
invoked to serve the childs best interest.
NERI v. HEIRSOF UY
17
Facts:AnunciacionNeri hadsevenchildren: first marriage
with Gonzalo Illut, namely: Eutropia and Victoria
and second marriage with Enrique Neri, namely:
Napoleon, Alicia, Visminda, Douglas and Rosa.Throughout
the marriage of spouses Enrique and Anunciacion, they
acquired several homestead properties located in Samal,
Davao del Norte. In 1977, Anunciacion died intestate.
Enrique, in his personal capacity and as natural guardian of
his minor children Rosa and Douglas, with Napoleon,
Alicia, and Visminda executed an Extra-Judicial Settlement
of the Estate with Absolute Deed of Sale on 7/7/1979,
adjudicating among themselves the said homestead
properties and thereafter, conveyingthemto thelatespousesUy
for aconsiderationof P80,000.00.In June 1996, the children of
Enrique filed a complaint for annulment of sale of the
homestead properties against spouses Uy before the
RTC, assailing the validity of the sale for having
been sold within the prohibited period. The
complaint was later amended to include Eutropia
and Victoria additional plaintiffs for having been
excluded and deprived of their legitimes as children of
Anunciacion from her first marriage.
RTC ruled for the annulment of the Extra-Judicial
Settlement of the Estate with Absolute Deed of Sale.
CA reversed the ruling of the RTC.
Issue: W/N the father or mother, as the natural guardian
of the minor under parental authority, has the power to
disposeor encumber thepropertyof theminor.
Held:The petition is meritorious.
It bears to stress that all the petitioners herein are
indisputably legitimate children of Anunciacion from her
first and second marriages with Gonzalo and Enrique,
respectively, and consequently, are entitled to inherit from
her in equal shares, pursuant to Articles 979 and 980 of
the Civil Code which read:
Articles 320 and 326 of the Civil Code, the laws in force at
the time of the execution of the settlement and sale,
provide:
ART. 320. The father, or in his absence the mother, is the
legal administrator of the property pertaining to the child
under parental authority. If the property is worth more
than two thousand pesos, the father or mother shall give a
bond subject to the approval of the Court of First Instance.
ART. 326. When the property of the child is worth more
than two thousand pesos, the father or mother shall be
considered a guardian of the childs property, subject to
the duties and obligations of guardians under the Rules of
Court.
Corollarily, Section 7, Rule 93 of the Rules of Court also
provides:
SEC. 7. Parents as Guardians. When the property of the
child under parental authority is worth two thousand
pesos or less, the father or the mother, without the
necessity of court appointment, shall be his legal guardian.
When the property of the child is worth more than two
thousand pesos, the father or the mother shall be
considered guardian of the childs property, with the
duties and obligations of guardians under these Rules, and
shall file the petition required by Section 2 hereof. For
good reasons, the court may, however, appoint another
suitable persons.
Administration includes all acts for the preservation of the
property and the receipt of fruits according to the natural
purpose of the thing. Any act of disposition or alienation,
or any reduction in the substance of the patrimony of
child, exceeds the limits of administration.
13
Thus, a father
or mother, as the natural guardian of the minor under
parental authority, does not have the power to dispose
or encumber the property of the latter. Such power is
granted by law only to a judicial guardian of the wards
property and even then only with courts prior approval
secured in accordance with the proceedings set forth by
the Rules of Court.
14
Consequently, the disputed sale entered into by Enrique
in behalf of his minor children without the proper judicial
authority, unless ratified by them upon reachingthe age
of majority,
15
is unenforceable in accordance with Articles
1317 and 1403(1) of the Civil Code which provide:
ART. 1317. No one may contract in the name of another
without being authorized by the latter or unless he has by
law a right to represent him.
A contract entered into in the name of another by one
who has no authority or legal representation, or who has
acted beyond his powers, shall be unenforceable, unless
it is ratified, expressly or impliedly, by the person on
whose behalf it has been executed, before it is revoked
by the other contractingparty.
ART. 1403. The following contracts are unenforceable,
unless they are ratified:
(1) Those entered into the name of another person by
one who has been given no authority or legal
representation, or who has acted beyond his powers;
xxx
18
Ratification means that one under no disability
voluntarily adopts and gives sanction to some
unauthorized act or defective proceeding, whichwithout
his sanction would not be binding on him. It is this
voluntary choice, knowingly made, which amounts to a
ratification of what was theretofore unauthorized, and
becomes the authorized act of the party so makingthe
ratification.
16
Once ratified, expressly or impliedly such as
when the person knowingly received benefits from it, the
contract is cleansed from all its defects from the moment
it was constituted,
17
as it has a retroactive effect.
Records, however, show that Rosa had ratified the
extrajudicial settlement of the estate with absolute deed
of sale. In Napoleon and Rosas Manifestation
18
before the
RTC dated July 11, 1997,they stated:
"Concerning the sale of our parcel of land executed by our
father, Enrique Neri concurred in and conformed to by us
and our other two sisters and brother (the other
plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja
Julpa Uy on July 7, 1979, we both confirmed that the
same was voluntary and freely made by all of us and
therefore the sale was absolutely valid and enforceable
as far as we all plaintiffs in this case are concerned;"
In their June 30, 1997 Joint-Affidavit,
19
Napoleon and Rosa
also alleged:
"That we are surprised that our names are included in this
case since we do not have any intention to file a case
against Hadji Yusop Uy and Julpha Ibrahim Uy and their
family andwe respect and acknowledge the validity of
the Extra-Judicial Settlement of the Estate with Absolute
Deed of Sale dated July 7, 1979;"
Clearly, the foregoingstatements constitutedratification
of the settlement of the estate and the subsequent sale,
thus, purgingall the defects existingat the time of its
execution and legitimizingthe conveyance of Rosas 1/16
share in the estate of Anunciacion to spouses Uy. The
same, however, is not true with respect to Douglas for
lack of evidence showingratification.
Considering, thus, that the extrajudicial settlement with
sale is invalid and therefore, not binding on Eutropia,
Victoria and Douglas, only the shares ofEnrique,
Napoleon, Alicia, Visminda and Rosa in the homestead
properties have effectivelybeen disposed in favor of
spouses Uy. "A person can only sell what he owns, or is
authorized to sell and the buyer can as a consequence
acquire no more than what the sellercan legally
transfer."
20
On this score, Article 493 of the Civil Codeis
relevant, which provides:
Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertainingthereto, and he
may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of
the co-ownership.
Consequently, spouses Uy or their substituted heirs
became pro indiviso co-owners of the homestead
properties with Eutropia, Victoria and Douglas, who
retained title to their respective 1/16 shares. They were
deemed to be holding the 3/16 shares of Eutropia,
Victoria and Douglas under an implied constructive trust
for the latters benefit, conformably with Article 1456 of
the Civil Code which states:"if property is acquired
through mistake or fraud, the person obtainingit is, by
force of law, considered a trustee of an implied trust for
the benefit of the person from whom the property
comes." As such, it is only fair, just and equitable that the
amount paid for their shares equivalent
toP5,000.00
21
each or a total ofP15,000.00 be returned
to spouses Uy with legal interest.
SCHOOL OF HOLY SPIRIT v. TAGUIAM
Facts: Respondent Taguiam was the class adviser of a
Grade 5 class of petitioner school. After obtaining
permission from the principal, they were allowed to use
the school swimming poolfor their year-end activity. With
this, respondent Taguiam distributed the
parents/guardians permit forms to the students.
The permit form of student Chiara Mae was unsigned. But
because the mother personally brought her to the school
with her packed lunch and swimsuit, Taguiam concluded
that the mother allowed her to join. Before the activity
started, respondent warned the pupils who did not know
how to swim to avoid the deeper area. However, while the
pupils were swimming, two of them sneaked out.
Respondent went after them to verify where they were
going. Unfortunately, while respondent was away, Chiara
Mae drowned. When respondent returned, the
maintenance man was already administering
cardiopulmonary resuscitation on Chiara Mae. She was still
alive when respondent rushed her to the General Malvar
Hospital where she was pronounced dead on arrival.
The petitioner school conducted a clarificatory hearing to
which respondent attended and submitted her Affidavit of
Explanation. A month later, petitioner school dismissed
respondent on the ground of gross negligence resulting to
loss of trust and confidence.
19
Issue: W/N respondents dismissal on the ground of gross
negligence resulting to loss of trust and confidence was
valid.
Held: Under Article 282
[15]
of the Labor Code, gross and
habitual neglect of duties is a valid ground for an
employer to terminate an employee. Gross negligence
implies a want or absence of or a failure to exercise slight
care or diligence, or the entire absence of care. It evinces
a thoughtless disregard of consequences without
exerting any effort to avoid them.
[16]
Habitual neglect
implies repeated failure to perform ones duties for a
period of time, dependingupon the circumstances.
[17]
Our perusal of the records leads us to conclude
that respondent had been grossly negligent. First, it is
undisputed thatChiaraMaes permit form was
unsigned. Yet, respondent allowed her to join the
activity because she assumed thatChiaraMaes mother
has allowed her to join it by personally bringingher to
the school with her packed lunch and swimsuit.
The purpose of a permit form is precisely to
ensure that the parents have allowed their child to join
the school activity involved. Respondent cannot simply
ignore this by resorting to assumptions. Respondent
admitted that she was around whenChiaraMae and her
mother arrived. She could have requestedthe mother to
sign the permit form before she left the school or at least
called her up to obtain her conformity.
Second, it was respondents responsibility as
Class Adviser to supervise her class in all activities
sanctioned by the school.
[18]
Thus, she should have
coordinated with the school to ensure that proper
safeguards, such as adequate first aid and sufficient adult
personnel, were present duringtheir activity. She should
have been mindful of the fact that with the number of
pupils involved, it would be impossible for her by herself
alone to keep an eye on each one of them.
As it turned out, since respondent was the only
adult present, majority of the pupils were left
unsupervised when she followed the two pupils who
sneaked out. In the light of the odds involved,
respondent should have considered that those who
sneaked out could not have left the school premises since
there were guards manningthe gates. The guards would
not have allowed them to go out in their swimsuits and
without any adult accompanyingthem. But those who
stayed at the pool were put at greater risk, when she left
them unattended by an adult.
Notably, respondents negligence, although
gross, was not habitual. In view of the considerable
resultant damage, however, we are in agreement that the
cause is sufficient to dismiss respondent. This is not the
first time that we have departed from the requirements laid
down by the law that neglect of duties must be both gross
and habitual. InPhilippine Airlines, Inc. v. NLRC,
[19]
we ruled
that Philippine Airlines (PAL) cannot be legallycompelled
to continue with the employment of a person admittedly
guilty of gross negligence in the performance of his duties
although it was his first offense. In that case, we noted
that a mere delay onPALsflight schedule due to aircraft
damage entails problems like hotel accommodations for its
passengers, re-booking, the possibility of law suits, and
payment of special landingfees not to mention the soaring
costs of replacingaircraft parts.
[20]
In another case, Fuentes
v. National Labor Relations Commission,
[21]
we held that it
would be unfair to compel Philippine BankingCorporation
to continue employing its bank teller. In that case, we
observed that although the tellers infraction was not
habitual, a substantial amount of money was lost. The
deposit slip had already been validated prior to its lossand
the amount reflected thereon is already considered as
current liabilities in the banks balance sheet.
[22]
Indeed,
the sufficiency of the evidence as well as the resultant
damage to the employer should be considered in the
dismissal of the employee. In this case, the damage went
as far as claimingthe life of a child.
As a result of gross negligence in the present
case, petitioners lost its trust and confidence in
respondent. Loss of trust and confidence to be a valid
ground for dismissal must be based on a willful breach of
trust and founded on clearly established facts. A breach
is willful if it is done intentionally, knowingly and
purposely, without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, heedlessly or
inadvertently.
[23]
Otherwise stated, it must rest on
substantial grounds and not on the employers
arbitrariness, whims, caprices or suspicion; otherwise,
the employee would eternally remain at the mercy of the
employer. Itshould begenuine and not simulated; nor
should it appear as a mere afterthought to justify earlier
action taken in bad faith or a subterfuge for causes which
are improper, illegal or unjustified. It has never been
intended to afford an occasion for abuse because of its
subjective nature. There must, therefore, be an actual
breach of duty committed by the employee which must
be established by substantial evidence.
[24]
As a teacher who standsin locoparentisto her
pupils, respondent should have made sure that the
children were protected from all harm while in her
company.
[25]
Respondent should have known that
leaving the pupils in the swimming pool area all by
themselves may result in an accident. A simple reminder
20
not to go to the deepest part of the pool
[26]
was
insufficient to cast away all the serious dangers that the
situation presented to the children, especially when
respondent knew thatChiaraMae cannot
swim.
[27]
Dismally, respondent created an unsafe
situation which exposed the lives of all the pupils
concerned to real danger. This is a clear violation not
only of the trust and confidence reposed on her by the
parents of the pupils but of the school itself.
Finally, we note that based on the criminal
complaint filed byChiaraMaes parents, the Assistant City
Prosecutor found probable cause to indict respondent for
the crime of reckless imprudence resulting in
homicide. The Assistant City Prosecutor held that
respondent should have foreseen the danger lurkingin
the waters. By leavingher pupils in the swimmingpool,
respondent displayed an inexcusable lack of foresight and
precaution.
[28]
While this finding is not controlling for
purposes of the instant case, this only supports our
conclusion that respondent has indeed been grossly
negligent.
All told, there being a clear showing that
respondent was culpable for gross negligence resultingto
loss of trust and confidence, her dismissal was valid and
legal. It was error for the Court of Appeals to reverse and
set aside the resolution of the NLRC.

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PERSONS & FAMILY RELATIONS (Case Digests)

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