Persons and Family Relations
4th Exam Coverage
THE FAMILY
Chapter 1. The Family as an Institution
Article 149. The family, being the foundation
of the nation, is a basic social institution
which public policy cherishes and protects.
Consequently, family relations are governed
by law and no custom, practice or
agreement destructive of the family shall be
recognized or given effect .
Family is a Basic Social Institution
1987 Constitution
Article II, Sec. 12
“The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution,xxx”
Article XV, Sec. 1
“The State recognizes the Filipino family as the foundation of
the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.”
“no custom, practice or agreement destructive of the family
shall be recognized or given effect.”
➡ Article 15, Civil Code: Laws relating to family rights and duties
are binding upon citizens of the Philippines, even though living
abroad.
➡ Yanez vs. Fuster - Filipinos remain governed by Philippine laws
wherever they may go
➡ Article 17, Civil Code: “No foreign law, judgements,
determinations or conventions agreed upon in a foreign
country, can render ineffective Philippine prohibited laws
concerning the persons, acts or property of Philippine citizens
and those which have for their object public order, public
policy and good customs
Article 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) A m o n g o t h e r a s c e n d a n t s a n d
descendants; and
(4) Among brothers and sisters, whether of
the full or half-blood.
Article 151. No suit between members of the
same family shall prosper unless it should
appear from the verified complaint or petition
that earnest efforts toward a compromise
have been made, but that the same have
failed. If it is shown that no such efforts were
in fact made, the case must be dismissed.
Article 150
‣ enumerates the people who are covered by Article 151/
“members of the family”
Construed Strictly
‣ Article 150 is exclusive; no other relatives are covered (i.e.
nephew, niece, common law wife)
Rationale of Article 151
‣ necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and
passion in the family.
‣ It is known that a lawsuit between close relatives generated
deeper bitternes than between strangers
Effects of non-compliance with Art. 151
‣ in any civil suit between members of the same family, it must
be shown in the verified complaint that earnest efforts toward
a compromise were exerted but that the same failed.
‣ exceptions:
a) Article 2035 of Civil Code these matters cannot be
compromised:
(1) civil status of persons
(2) validity of a marriage or a legal separation
(3) any ground for legal separation
(4) future support
(5) jurisdiction of courts; and
(6) future legitime
‣ support in arears can be subject to compromise
b) when there is a party in the case who is a stranger
Versoza vs. Versoza - where the mother and her children filed a
complaint for past, present and future support, the defendant
moved to dismiss the case because there was no allegation that
earnest efforts were made toward a compromise, it was ruled by the
Supreme Court that the case should be allowed to continue
because future support is being sought and this is not subject to
compromise (Art. 2035, par. 4)
Magbaleta vs. Gonong - If in the suit between members of the same
family, a stranger is also a party, there is no need to allege earnest
efforts at compromise.
Hiyas Savings and Loan Bank, Inc. vs. Acuna - Once a stranger
becomes a party to a suit involving members of the same family, the
law no longer makes it a condition precedent that earnest efforts be
made towards a compromise before the action can prosper.
Magbaleta is the prevailing ruling.
Manalo vs. CA - The article is not applicable in settlement of estate
which is a special proceeding.
Hiyas Savings and Loan Bank, Inc. vs. Acuna
What if one of the parties is part of your family and the rest are
strangers? Will Art. 151 FC also appiy to them?
Facts:
Alberto Moreno, sues his (1) wife, Remedios, (2) Hiyas
Savings and Loan Bank, (3) spouses Felipe and Maria Owe, and (4)
the Register of Deeds of Caloocan city for cancellation of mortgage
contending that he did not secure any loan from petitioner nor did
he sign any contract of mortgage in its favor as he was abroad. He
says that his wife conspired with the bank and she with the Owe
spouses benefitted from the loan.
Petitioner filed a Motion to Dismiss on the ground that
private respondent failed to comply with Article 151 of the FC.
 Private respondent argued that since 3 of the party-
defendants are not members of his family, the failure to allege that
earnest efforts have been made towards a compromise is not a
ground for a motion to dismiss.
RTC denied the Motion to Dismiss in favor of the petitioner. It
cited Magbaleta vs. Gonong and Mendez vs. Biangon wherein the
Court ruled that if one of the parties is a stranger, failure to allege in
the complaint that earnest efforts before filing the complaint, is not a
ground for motion to dismiss.
Petitioner filed for a Motion for Partial Reconsideration.
RTC denied the Motion and added that Remedios is the only one
who can invoke Art. 151.
Hiyas Savings Loan Bank, Inc. files a petition for certiorari
against public respondent Acuna before the Supreme Court.
Issue:
W/N public respondent committed grave abuse of discretion
amounting to lack and excess of jurisdiction when he decided
how it did
Ruling:
The case should have been filed with the CA pursuant to the
doctrine of hierarchy of courts.
In the present case, petitioner failed to advance a satisfactory
explanation as to his failure to comply with the principle of judicial
hierarchy. On this basis and for the lack of merit, the instant petition
should be dismissed.
The petitioner argued in its Motion for Partial Reconsideration
that what is applicable to the present case is De Guzman vs.
Genato which involves husband and a wife and not Magbaleta vs.
Gonong which involves a case between brothers.
The Court is not persuaded.
Once a stranger becomes a party to a suit involving
members of the same family, the law no longer makes it a
condition precedent that earnest efforts be made towards a
compromise before the action can prosper.
In the Magbaleta, the Court reasoned out that aside from it
being inconvenient, it is neither practical nor fair that the
determination of the rights of a stranger to the family who just
happened to have innocently acquired some kind of interest in any
right or property disputed among its members should be made to
depend on the way the latter would settle their differences.
While in de Guzman the Court ruled that even if there is a
stranger in the case which involves members of the same family
that Artcle 151 of the FC and 222 of the Civil Code should be
complied with.
Even if de Guzman was decided later than Magbaleta, the
latter is the one that now that prevails because it is reiterated in the
subsequent decisions of the SC. Thus, Article 151 FC applies when
the suit is exclusively between or among family members.
Requirement in Article 151 of the FC is applicable in cases
which are exclusively between or among members of the same
family, it necesarily follows that the same may be invoked only
by a party who is a member of that same family.
_________________________________________________________
CHAPTER 2
THE FAMILY HOME
Article 152. The family home, constituted
jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling
house where they and their family reside, and
the land on which it is situated.
Family Home, concept
It is the dwelling house where, the husband and the wife (or an
unmarried head of the family and their family reside and the land on
which it is situated.
‣ must be permanent thus, must own the land (not just renting;
not leased)
‣ must be exclusively used by the family, exclusively for the
purpose of dwelling/residing
‣ occupancy of a family home must be actual and not
presumptive or constructive
Josef vs. Santos - The general rule is that the family home is a real
right which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is
situated, which confers upon a particular family the right to enjoy
such properties, which must refrain with the person constituting it
and his heirs. It cannot be seized by creditors except in certain
special cases.
Who can establish a famliy home?
1. spouses jointly
2. unmarried head of a family
- widower/widow
- eldest son/daughter who is unmarried
Benrojo vs. Ventura - The family home cannot be constituted upon
premises permanently used for business purposes. Thus if the
property is utilized primarily for busines as a merchandise store or
as a hotel for the public, it cannot be regarded as a family home
even if the family stays there for the purpose of attending to the
business.
In which cases can the Family Home rules apply?
1. valid marriages
2. voidable marriages
➡ *recall* “conjugal home” = goes to the spouse where
majority of the children will stay (in case of legal
separation)
3. common-law spouses
- covered by Articles 147 and 148 (Valdes vs. RTC of QC)
➡ *recall* Article 147 = spouses own the family home in
equal shares
➡ in Article 148, if one of the parties is married, it will go
to the conjugal property or the community property of
the subsisting marriage
Article 153. The family home is deemed
constituted on a house and lot from the time
it is occupied as a family residence. From the
time of its constitution and so long as any of
its beneficiaries actually resides therein, the
family home continues to be such and is
exempt from execution, forced sale or
attachment except as hereinafter provided
and to the extent of the value allowed by law.
Civil Code: must first establish family home judicially or extra-
judicially
 ‣ family homes already existing (not yet established) before the
effectivity of the Family Code on August 3, 1988 (which qualify
under the Code) become family homes on August 3, 1988 by
operation of law and not on the date they were occupied.
- Article 153 is not retroactive; applies prospectively
- thus, existing credits against them which were incurred
before the effectivity of the Code cannot be impaired (Art.
256, Family Code)
- Modequillo vs. Breva - Residential houses which became
family homes only by operation of law under Art. 153, FC
are not exempt from execution for indebtedness incurred
prior to the effectivity of the Family Code.
Family Code: it is deemed constituted on a house and lot from the
time it is occupied as a family residence
Versola vs. CA - It is deemed constituted on a house and lot from
the time it is occupied as a family residence.
Benefits of having a Family Home:
➡ exempt from execution, forced sale or attachment
‣ rationale according to Code Commission: The family home
is a sacred symbol of family love and is the repository of
cherished memories that last during one’s lifetime. When a
home is seized by creditors, it seems as though the heart of
the family were shattered. Being the seat and symbol of the
family affections, it should not be seized for debts, except in
certain special cases.
๏ exception to the exemption: Article 155 of the Family Code:
non-payment for taxes, debts secured by mortgages on the
premises before or after such constitution and others (in
such cases, creditor can get whole value of the home)
Mondequillo vs. Breva (debt incurred before constitution of FH)
May 31, 1990
Facts:
CA rendered a judgement against Jose Modequillo and Benito
Malubay ordering the duo jointly and severally to pay the victim of a
vehicular accident which caused the victim’s death. RTC issued an
execution which caused the Sheriff to subject 2 of Modequillo’s
property in Davao del Sur — one being executed on his family
home.
1. Court of Appeals rendered a judgement which ordered Jose
Modequillo and Benito Malubay to pay jointly and severally the
following:
(1) Php 30,000 for compensation for the death of Audie
Salinas
(2) Php 10,000 for the loss of earnings by reason of the death
of Audie Salinas
(3) Php 5,000 as burial expenses
(4) Php 5,000 for moral damages
(5) Php 7,000 for attorney’s and litigation expenses
2. A writ of execution was issued by the RTC of Davao City to
satisfy the said judgement on the goods and chattels of the
defendants Modequillo and Benito Malubay at Malalag, Davao
del Sur
3. Sheriff levied 2 properties of Modequillo:
(1) 600 sq-meter Poblacion, Malalag, Davao del Sur (MV-Php
34,550; AV- Php7570) and
(2) 3-hectare agricultural land in Dalagbong, Bulacan,
Malalag, Davao del Sur (MV- Php24,130; AV - Php 9,650)
4. Defense: A Motion to Quash was filed by Modequillo alleging
that:
(1) the residential land in Poblacion is where his family home
was built since 1969 prior to the commencement of the
case. Pursuant to the Article 152 and 153 of the Family
Code, a forced execution was not under the enumeration in
Article 155.
(2) The agricultural land although in his name, is still part of
public land and the transfer in his favor by the original
possessor and applicant who was a member of a cultural
minority was not approved by the proper government
agency.
5. RTC denied the motion.
6. Petitioner files a petition for review on certiorari. Grounds:
(1) Residential house and lot was first occupied as his family
residence in 1969 and was duly constituted as a family
home under the Family Code which took effect on August
4, 1988. Thus, the said lot should is exempt from payment
of the obligation enumerated in Article 155 of the Family
Code;
(2) The decision in this case pertaining to damages arising
from a vehicular accident took place on March16, 1976
and which became final in 1988 is not one of those
instances enumerated under Article 155 of the Family Code
when the family home may be levied upon and sold on
execution.
(3) RTC erred in holding that the said house and lot became a
family home only on August 4, 1988 when the FC became
effective
(4) RTC erred in holding that Article 162 of the FC does not
state that the provisions of Chapter 2, Title V have a
retroactive effect.
Issue: W/N a final judgement of the Court of Appeals in an action
for damages may be satisfied by way of execution of a family home
constituted under the Family Code.
Ruling:
In the present case, the residential house and lot of petitioner
was not constituted as a family home whether judicially or
extrajudicially under the Civil Code. it became a family home by
operation of law under Article 153 of the Family Code. It is deemed
constituted as a family home upon the effectivity of the Family Code
on August 3, 1988 not August 4, one year after its publication in the
Manila Chronicle on August 4, 1987.
Article 152 and 153 of the said Code does not have a
retroactive effect such that all existing family residences are
deemed to have been constituted as family homes at the time of
their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred
before the effectivity of the Family Code.
Therefore, the the debt or liability which was the basis of the
judgement that was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgement arising therefrom was
rendered by the appellate court on January 29, 1988. Both
preceded the effectivity of the Family Code on August 3, 1988. This
case does not fall under the exemptions from execution provided in
the Family Code.
Taneo vs. CA (Civil Code; debt incurred before constitution of the
FH)
March 9, 1990
Facts:
As a result of a judgement in Civil Case, in favor of private
respondent, 2 of petitioner’s properties were levied to satisfy the
judgement of about Php 5,000. (1) 5-hectare Barrio Igpit, Opol,
Misamis Oriental (2) family home in Igpit, Opol. The said properties
were sold in at a public auction and the private respondent was the
highest bidder. After the failure of the petitioners’ failure to redeem
the same, a final deed of conveyance was executed.
The heirs of petitioner filed a petition filed an action to declare
the deed of conveyance void and to quiet title over the land with a
prayer for a writ of preliminary injunction. This was denied by the
RTC.
Issue:
W/N the family home is exempt from execution.
Ruling:
Under the Civil Code (Articles 224 and 251), a family home
may be constituted judicially and extrajudicially, the former by the
filing of the petition and with the approval of the proper court, and
the latter by the recording of a public instrument in the proper
registry of property declaring the establishment of the family home.
The operative act then which created the family home extrajudicially
was the registration in the Registry of Property of the declaration
prescribed by Articles 240 and 241 of the Civil Code.
Under the FC, registration was no longer necessary. Article 153
of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied in the
family residence.
Manacop vs. CA - All existing family residences at the time
of the effectivity of the Family Code are considered family
homes and are prospectively entitled to the benefits accorded
to a family home under the FC.
The applicable law in this case at bar is still the Civil Code
where the registration of the declaration of a family home is a
prerequisite.
Article 243 of the Civil Code provides:
The family home extrajudicially formed shall be exempt from
execution, forced sale or attachment, except:
xxx
(2) For debts incurred before the declaration was recorded in the
Registry of Property;
xxx
The family home is not exempted from execution because:
(1) the debt was incurred when the family home was not
constituted yet and cannot be considered as one of the
exceptions under Article 243 which family homes are
entitled to. The constitution of family homes are entitled to
the benefits provided by law from the time when it was
constituted — registered in the Register of Deeds.
(2) The registration was also doubtful because the lot was named
after Plutarco Vacalares and not Pablo Taneo. The family home
should be constructed on a land not belonging to another. The
constitution of Pablo Taneo in the instant case was merely an
afterthought in order to escape execution of their property but to
no avail.
Article 240. The family home may be extrajudicially
constituted by recording in the Registry of Property a
public instrument wherein a person declares that he
thereby establishes a family home out of a dwelling place
with the land on which it is situated
Article 241. The declaration setting up the family home
shall be under oath and shall contain:
(1) A statement that the claimant is the owner of, an is
actually residing in the premises;
(2) A description of the property;
(3) An estimate of its actual value; and
(4) The names of the claimant’s spouse and other
beneficiaries mentioned in Article 226.
Article 243. The family home extrajudicially formed shall
be exempt from execution, forced sale or attachment,
except:
(1) Non payment of taxes;
(2) For debts incurred before the declaration was
recorded in the Registry of Property;
(3) For debts secured by mortgages on the premises
before or after such record of the declaration
Cabang vs. Basay (FH not on their own property)
March 20, 2009
Facts:
Vicente Cabang invokes that his house cannot be subject to
execution for it is a family home under Article 153 of the Family
Court. It is one of the 3 houses erected on the lot of deceased Felix
Odong who have been residing therein for many years. The
deceased’s heirs filed a complaint for recovery of property before
the RTC which decided in favor of the defendants. Petitioners
(Basay) filed an appeal before the CA which reversed the RTC
decision. The CA remanded the case back to the RTC to determine
the rights of the defendants (Cabang) and to render judgement.
Defendans filed a petition for review before the SC which denied the
same for late filing and lack of merit.
Petitioners filed their Manifestation and Motion for Execution
before the RTC. RTC and CA denied the motions filed by the
Petitioners hence this petition.
Issue:
W/N Cabang’s house is a family home.
The issue of whether or not the improvements introduced by
petitioners are family homes is a mere afterthought. The CA
decision in favor of the heirs of Felix Odong has become final and
executory therefore the task of the RTC was merely ministerial.
In Kelley, Jr. vs. Planters Products, Inc. it has been held that,
“the family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive
properties of either spouse with the latter’s consent, or on the
property of the unmarried head of the family.”
Since the property on which their alleged family home
stands is not owned by them but by the Basay’s as per the CA
judgement which has been final and executory, the petitioner’s
(Cabang’s) stay on the subject land is only by mere tolerance of
respondents.
Article 154. The beneficiaries of a family
home are:
(1) The husband and wife, or an unmarried
person who is the head of a family; and
(2) Their parents, ascendants, descendants,
brothers and sisters, whether the
relationship be legitimate or illegitimate.
who are living in the family home and who
depend upon the head of the family for
legal support.
Who are the beneficiaries of the family home?
1. husband
2. wife
3. unmarried person as head of the family
4. brothers and sisters (legitimate or illegitimate
5. descendants (can be of either spouse from a previous marriage
or other relationships/ stepchildren/adopted children)
6. ascendants (parents)
- in laws may be beneficiaries of the family home if constituted
jointly by the husband or the wife; must qualify as secondary
beneficiaries
 from his grandparents when his father, herein respondent who is the Exception from the Exemption
Qualifications of Secondary Beneficiaries head of his immediate family is capable of giving support. Thus, he
1. they must be living in the family home; and is dependent on his father for support and not his grandparents. Non payment of taxes family homes are liable for non-
2. must be dependent for legal support (support required by law There is no showing that private respondent is without means payment of realty taxes; failure to
as distinguished from voluntary support) upon the head of the to support his son; neither is there any evidence to prove that pay taxes is a ground for the sale of
family petitioner, as the paternal grandmother, was willing to voluntarily the property by the Government to
provide for her grandson’s legal support. On the contrary, herein satisfy the taxes due (Section 73,
Manacop vs. CA - Maids and caretakers are excluded from the term petitioner filed for the partition of the property which shows an PD 464)
“beneficiaries” intention to dissolve the family home, since there is no more reason
for its existence after the 10-year period ended in 1997. With this Debts incurred prior the creditor may pursue such legal
Patricio vs. Dario III (minor son of respondent does not depend finding, there is no legal impediement to partition the subject to the constitution of remedies
upon the grandparents who constituted the FH; thus not a property. the family home
beneficiary; FH can be partitioned)
November 20, 2006 4/6 = Perla Patricio Dario Debts secured by the creditor for non payment of
Facts: 1/6 = Marcelino Dario III mortgages on the obligations can foreclose the
Upon the refusal of Marcelino Marc Dario III, Marcelino Marc 1/6 = Marcelino Marc Dario premises before or mortgage and have the property
and his mother filed a petition for the partition of the residential after such sold at public auction
house which was the family home of the Dario’s when Marcelino V. constitution
Dario (father of Marcelino Marc and Marcelino Marc Dario III;
debts due to laborers, the family home may be subjected
husband of Perla Patricio) was still alive. It has been 10 years since Article. 155. The family home shall be
he passed. The respondent invoked that the residential house mechanics, to their liens (Article 2242, NCC)
exempt from execution, forced sale or architects, builders, and may be attached and sold by
cannot be partitioned because it is still deemed a family home as
his son who was still a minor, still lives in the same.
attachment except: materialmen and authority of the Court to satisfy
RTC ordered the partition. CA ruled that the family home (1) For nonpayment of taxes; others who have such claims, called as mechanic’s
rendered service or lien
should continue despite the death of one or both spouses as long (2) F o r d e b t s i n c u r r e d p r i o r t o t h e furnished material for
as there is a minor beneficiary thereof. The heirs could not partition
constitution of the family home; the construction of
the property unless the court found compelling reasons to rule
otherwise. Patricio, filed a petition before the SC. (3) For debts secured by mortgages on the the building
Issue: premises before or after such
W/N the family home can be partitioned. constitution; and Versola vs. CA - A family home is constituted on a house and lot
Yes. The law explicitly provides that occupancy of the family from the time it is occupied as a family residence; there is no need
home by either owner thereof or by “any of its beneficiaries” must
(4) For debts due to laborers, mechanics,
to constitute the same judicially or extrajudicially. The right to
be actual. Actual occupancy, however, need not be by the owner of architects, builders, materialmen and exemption or forced sale under Article 153 of the Family Code is a
the house specifically. Rather, the property may be occupied by the others who have rendered service or personal privilege granted to the judgement debtor and as such, it
beneficiaries enumerated under Article 154 of the Family Code furnished material for the construction of must be claimed not by the sheriff, but by the debtor himself before
which may include in-laws where the family home is consituted the sale of the property at public auction.
jointly by the husband and wife. But the law definitely excludes
the building.
maids and overseers.
To be a beneficiary of the family home, 3 requisites must *may get the whole value of the home unlike Article 160, wherein
concur: (1) they must be among the relationships enumerated legal value for the family home (Php 300,000/200,000) is returned
in Article 154 of the Family Code; (2) they live in the same family after the sale
home; (3) they are dependent for legal support upon the head of
the family.
The grandson of Marcelino Dario does not satisfy the 3rd
requisite. He cannot be deemed to dependent for legal support
 Article 156. The family home must be part of
the properties of the absolute community or
the conjugal partnership, or of the exclusive
properties of either spouse with the latter’s
consent. It may also be constituted by an
unmarried head of a family on his or her own
property.
Nevertheless, property that is the
subject of a conditional sale on installments
where ownership is reserved by the vendor
only to guarantee payment of the purchase
price may be constituted as a family home.
What kind of property can be established as a family home
1. absolute community
2. conjugal partnership
3. exclusive property (with the consent of the other or if it is the
property of the unmarried head of the family)
➡ can be part absolute/conjugal and part exclusive
➡ cannot be established on a property held in co-ownership with
third persons
Property on installments may be constituted as a family home
Article 157. The actual value of the family
home shall not exceed, at the time of its
constitution, the amount of three hundred
thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or
such amounts as may hereafter be fixed by
law.
In any event, if the value of the
currency changes after the adoption of this
Code, the value most favorable for the
constitution of a family home shall be the
basis of evaluation.
For purposes of this Article, urban
areas are deemed to include chartered cities
and municipalities whose annual inome at
least equals that legally required for
chartered cities. All others are deemed to be
rural areas.
Limitation on the Actual Value of Family Homes
urban areas Php 300,000
now: Php 1M
rural Php 200,000
now: Php 500,000
standard of changes: what would be most favorable for the
constitution of the family home
Article 158. The family home may be sold,
alienated, donated, assigned or encumbered
by the owner or owners thereof with the
written consent of the person constituting the
same, the latter’s spouse, and a majority of
the beneficiaries of legal age. In case of
conflict, the court shall decide.
Requisites in order for the family home to be S,A,D,A, or E
1. written consent of the person who constituted the family home
2. the written consent of the other spouse, if constituted only by
one of them
3. the written consent of majority of the beneficiaries who are of
legal age
➡ if without one of the requisites = transaction is void
Is insurance indemnity (which was given because a family
home was lost) subject to attachment/execution?
Pineda: It is believed that until it is actually used for the
establishment of another family home, the indemnity is subject to
execution and attachment. When the family home ceases to exist,
the privilege ceases. The insurance indemnity is not the same as
the family home. It may even be spent for something else more
important. The same argument will hold true to compensations paid
in cases of expropriation of the property by the government or its
instrumentalities.
Article 159. The family home shall continue
despite the death of one or both spouses or
of the unmarried head of the family for a
period of ten years or for as long as there is a
minor beneficiary, and the heirs cannot
partition the same unless the court finds
compelling reasons therefor. This rule apply
regardless of whoever owns the property or
constituted the family home.
Patricio vs. Dario III - If there is no minor-beneficiary, it will subsist
until 10 years and within this period, the heirs cannot partition the
same except when the there are compelling reasons which will
justify the partition. This rule applies regardless of whoever owns
the property or who constituted the family home.
Requisites for a Minor Beneficiary to be Entitled to the benefits
of Article 159 (Patricio vs. Dario III):
1. relationship enumerated in Article 154
2. actually living in the family home
3. dependent for legal support upon the head of the family
Patricio vs. Dario III - A grandson living in the family home of the
grandfather will not be considered a beneficiary if he has a father
who gives him support.
What is the effect of legal separation and annulment of
marriage upon the family home?
NCC: family home dissolved
Family Code:
‣ legal separation: family home will continue to subsist, subject
to the provisions of Article 159
‣ annulment of marriage/ declaration of nullity of marriage: the
family home shall continue to subsist but it will be adjudicated
in favor of the spouse with whom the majority of common
children chose to remain pursuant to Articles 102 and 129 of
the Family Code (Article 50, last par.) or Art. 147/148
Article 160. When a creditor whose claim is
not among those mentioned in Article 155
obtains a judgement in his favor, and he has
reasonable grounds to believe that the family
home is actually worth more than the
maximum amount fixed in Article 157, he
may apply to the court which rendered the
judgement for an order directing the sale of
the property under execution. The court shall
so order if it finds that the actual value of the
family home exceeds the maximum amount
allowed by law as of the time of its
constitution. If the increased actual value
exceeds the maximum allowed in Article 157
and results from subsequent voluntary
improvements introduced by the person or
persons constituting the family home, by the
owner or owners of the property, or by any of
the beneficiaries, the same rule and
procedure shall apply. At the execution sale, Article 162. The provisions in this Chapter
no bid below the value allowed for a family shall also govern existing family residences
home shall be considered. The proceeds insofar as said provisions are applicable.
shall be applied first to the amount
mentioned in Aritlce 157, and then to the
liabilities under the judgement and the costs. ➡ Existing family homes shall be governed by Family Code
The excess, if any shall be delivered to the ‣ as long as they qualify
judgement debtor. ➡ residential houses that were not constituted as family homes
judicially or extra-judicially before the FC shall be deemed to be
family homes by operation of law as of August 3, 1988
‣ provided that
When does Article 160 apply? (1) they are actually occupied as residences by the
1. creditor’s claim is not among those enumerated in Article 155 family and the beneficiaries
2. he obtained a favorable judgement against the owner or owners (2) the value does not exceed the limits provided by law
of the family home (3) they are constituted on communal, conjugal or
3. he has valid proofs that the family home is worth more than the exclusive properties of either spouse or on the
maximum value fixed under Article 157 at the time of its property of the unmarried head of the family
constitution or as a result of subsequent voluntary
‣ retroactivity of the FC to family residences will not affect the
improvements exceptions under Article 155.
✓ when there’s a concurrence of 1,2,3 = creditor can file a petition
in court which rendered the favorable judgement for an order Article 256 - FC retroactive but vested rights must not be prejudiced
directing the sale of the property
- family home will be sold on execution
- no bid below the value of the family home will be
entertained
- proceeds will be first applied to the payment fo the amount
mentioned in Article 157 of the Family Code
- then will be applied to the judgement and the costs
- only the excess will be delivered to the judgement debtor
if there are preferred creditors = the petition of the unpreferred
creditor should be denied; courts should take such fair and just
measures to protect preferred creditors
Article 161. For purposes of availing of the
benefits of a family home as provided for in
this Chapter, a person may constitute, or be
the beneficiary of, only one family home.
TITLE VI
PATERNITY AND FILIATION
Chapter 1
Legitimate Children
Article 163. The filiation of children may be
by nature or adoption. Natural filiation may
be legitimate or illegitimate.
Definition of Terms
Filiation The civil status of the child in
relation to his father or mother
Paternity The civil status of the father with
respect to the child begotten by
him
Maternity The civil status of the mother with
respect to the child begotten by her
Classes of Children
Legitimate conceived and born during the marriage of
parents who are lawfully married or those
who are conceived before the marriage but
born during the marriage
Illegitimate conceived and born outside a valid marriage
(Art. 165, FC)
Legitimated conceived of parents who at the time of
conception were not disqualified by any legal
impediment to marry each other and who are
later considered legitimate by reason of the
subsequent marriage of their parents
Adopted those who whether related by blood or not to
the adopter, by fiction of law, are made
legitimate children of the latter.
Article 164. Children conceived or born
during the marriage of the parents are
legitimate.
Children conceived as a result of
artificial insemination of the wife with sperm
of the husband or that of a donor or both are
likewise legitimate children of the husband
and his wife, provided, that both of them
authorized or ratified such insemination in a
written instrument executed and signed by
them before the birth of the child. The
instrument shall be recorded in the civil
registry together with the birth certificate of
the child.
Presumption of Legitimacy
Tan vs. Trocio - A child born during wedlock is presumed to be
legitimate unless there was no sexual access to the wife.
Concepcion vs. CA - In case of conflict between a presumption of
law that a child born inside a valid marriage is legitimate and a
presumption of fact arising from the statement of filiation in a birth
certificate, the presumption of law will prevail.
Artificially Inseminated Child
‣ for the child to be legitimate:
(1) both of husband and wife authorized or ratified the
insemination in a written instrument executed and
signed by them before the birth of the child
(2) the instrument is recorded in the civil registry together
with the birth certificate of the child
‣ if not followed, the husband may impugn the legitimacy of the
child under the grounds of Article 166 within the prescriptive
period
- if the ratification or the authorization was obtained by
mistake, fraud, undue influence or intimidation
- if did not authorize or ratify at all
‣ Why does one need the agreement?
(1) to protect the child from uncertainty of his civil status
(2) to protect the mother from possible charges of adultery
when the semen injected to her uterus is a pure
donation from an outsider
- Sta Maria: A wife who, without the consent of the
husband, had herself artificially inseminated by
the semen of another which led to the siring of a
child not of the husband, cannot be held
criminally liable for adultery because of the
absence of sexual intercourse which is an
essential element of the crime of adultery.
(3) to protect the physician or donor who conducted the
insemination from possible complaint for damages on
the pretext that the husband’s consent was not
obtained
Effect of Intervention of Surrogate Mothers
‣ Pineda: if the zygote is the result of the fertilization of the
wife’s ovum by her husband’s sperm, it is submitted that the
child is their legitimate child — it having been sourced from
their own blood.
Article 165. Children conceived and born
outside a valid marriage are illegitimate,
unless otherwise provided in this Code.
General Rule: Children conceived and born outside a valid
marriage are illegitimate unless otherwise provided in this
Code. Children born in a void marriage are illegitimate.
Exception
Article 54, FC - Children conceived or born before the judgement
of annulment or absolute nullity of the marriage under Article 36
has become final and executory, shall be considered legitimate.
Children conceived or born of the subsequent marriage under
Article 53 [did not follow 51 and 52] shall likewise be legitimate.
In which kind of marriages are illegitimate children born out of?
➡ marriages which are void ab initio (bigamous, incestuous,
marriages that are void for being contrary to law and public
policy)

Article 166. Legitimacy of a child may be
impugned only on the following grounds:
(1) That it was physically impossible for the
husband to have sexual intercourse with
his wife within the first 120 days of the
300 days which immediately preceded
the birth of the child because of:
(a) the physical incapacity of the
husband to have sexual intercourse
with his wife;
(b) the fact that the husband and wife
were living separately in such a way
that sexual intercourse was not
possible;
(c) serious illness of the husband, which
absolutely prevented sexual
intercourse;
(2) That it is proved that for biological or
other scientific reasons, the child could
not have been that of the husband,
except in the instance provided in the
second paragraph of Article 164; or
(3) That in case of children conceived
through artificial insemination, the written
authorization or ratification of either
parent was obtained through mistake,
fraud, violence, intimidation, or undue
influence
Children born within a valid marriage is presumed to be legitimate.
Presumption of legitimacy and paternity
‣ Sta. Maria - In all cases where the husband assails the legitimacy
of an issue sired by his wife, all doubts are resolved in favor of
legitimacy because of the existence of that universal
presumption of legitimacy.
‣ Montesquieu - the law gives the mother “a confidence in the
mother as if she were chastity itself.”
‣ Dietrich vs. Dietrich (154, Misc. 714, 278 N.Y.S. 645) - The
presumption that the child of a married woman was begotten by
her husband is not displaced by proof that the wife had immoral
relations with another men; non-access by the husband at the
time when the child must have been begotten must have been
proved.
Only the husband and his heirs (in certain cases) may impugn
the legitimacy of the child only in the circumstances enumerated
in Article 166 and in a direct action.
- need clear and convincing evidence
- Why only the husband? There is no doubt on maternity.
Grounds for Impugnation of Legitimacy
1. husband’s physical impossibility to have sexual intercourse with
the wife under the period and the 3 conditions
1) physical incapacity of the husband to have sexual
intercourse with the wife
‣ absence of sexual organ on the part of the husband
‣ impotence which means the inability of the male organ
to perform its proper function
2) living separately in such a way that sexual intercourse was
not possible
‣ Fransisco and Marcelo vs. Jason - the separation must
be of such nature that sexual access is not possible as
when the spouses reside in different countries or
provinces and were never together during the period of
conception.
3) serious illness of the husband that absolutely prevented
sexual intercourse
‣ the illness of the husband must be serious and must be
such as to absolutely prevent him from engaging in
sexual intercourse
‣ i.e. comatose, Bright’s disease
‣ Andal and Duenas vs. Macaraig - advance tuberculosis
of a man does not necessarily deprive him of his
capacity for sexual intercourse
2. establishment by biological or other scientific evidence of the
fact that the child could not be that of the husband except in
artificial insemination where a donor’s sperm was used
‣ DNA or blood test exclusions
3. authorization or ratification of artificial insemination was
obtained through mistake, fraud, undue influence, intimidation
‣ mistake - mistake as to the identity or qualifications of
one of the parties will vitiate consent only when such
identity or qualifications have been the principal cause
of the contract
‣ fraud - there is fraud when, through insidious words or
machinations of one of the contracting parties, the
other is induced to enter into a contract which, without
them he would not have agreed to.
‣ violence- there is violence when in order to wrest
consent, serious or irresistible force is employed.
‣ intimidation - when one of the contracting parties is
compelled by a reasonable and well-grounded fear of
an imminent and grave evil upon his person or
property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent
‣ undue influence - when a person take improper
advantage of his power over the will of another,
depriving the latter of a reasonable freedom of choice;
the ff. circumstances shall be considered: the
confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged
to have been unduly influenced was suffering from
mental weakness, or was ignorant or in financial
distress
Liyao, Jr. vs. Tanhoti-Liyao - It is settled that the legitimacy of the
child can be impugned only in a direct action brought for that
purpose, by the proper parties and within the period limited by law.
Liyao vs. Tanhioti-Liyao
a child conceived in the subsistence of a prior marriage is still
considered to be a legitimate child of that prior marriage even if the
child has possession of the status of an illegitimate child of the 2nd
partner
March 7, 2002
Facts:
Corazon Garcia had been living separately from her husband,
Ramon Yulo. She had two children with Ramon. Later, she
cohabited with the late William Liyao from 1965 until the latter died.
She gave birth to William Liyao, Jr. William expressly acknowledged
Billy as his own son in the presence of Fr. Ruiz, Maurita Pasion and
other friends. Billy had been in continuous possession and
enjoyment of the status of a recognized and/or acknowledged child
of William Liyao by the latter’s direct and overt acts.
Corazon Garcia, Maurita Pasion, Bernadette and Enrique Yulo
testified for Corazon Garcia. While Linda Liyao-Ortiga, Tita Rose
Liyao-Tan and Ramon Pineda (driver and bodyguard) testified for
the respondent’s side.
RTC declared that Billy is the illegitimate child of William Liyao,
convinced (1) by preponderance of evidence that the deceased
William Liyao sired Billy since the latter was conceived at the time
when Corazon and William Liyao cohabited and (2) that petitioner
had been in continuous possession and enjoyment of the status of a
child of the deceased by direct and overt acts.
CA reversed the ruling on the ground that the law favor the
legitimacy rather than the illegitimacy of the child and “the
presumption of legitimacy is thwarted only on ethnic ground and by
proof that marital intimacy between husband and wife was
physically impossible at the period cited in Article 257 in relation to
Article 255 of the Civil Code.
The birth certificate and the baptismal certificate presented
were not sufficient to establish paternity in the absence of any
evidence that the deceased had a hand in the preparation of said
certificates and considering that his signature does not appear
therefrom. Family pictures do not also prove filiation. As for the
passbook, there was nothing in it to prove the same was opened by
William Liyao since his signature and name do not appear thereon.
Issue:
W/N William Liyao, Jr. can be recognized as the illegitimate
child of the deceased William Liyao.
No. He is presumed to be the legitimate child of Ramon Yulo,
the husband of Corazon in her subsisting marriage. This is still the
case even if the mother has declared against its legitimacy or was
sentenced as an adultress. Impugning the legitimacy is a
personal right of the husband and may only be done by his
heirs in exceptional cases. Only when the presumption of
legitimacy is overthrown, the child cannot elect the paternity of
the husband who successfully defeated the presumption.
Under the New Civil Code, a child born and conceived during
a valid marriage is presumed to be legitimate. The presumption of
legitimacy of children does not only flow from a declaration
contained in the statute but is based on broad principles of
natural justice and the supposed virtue of the mother. The
presumption is grounded in a policy to protect innocent
offspring from the odium of illegitimacy.
W/N the testimony of Corazon’s children amount to
impugnation of the legitimacy of the latter.
No. It is only in exceptional cases that the heirs of the husband
(Ramon) are allowed to contest the legitimacy of the child. There is
nothing in the records to indicate that Ramon Yulo had already
passed away at the time of the birth of the petitioner nor at the time
of the initiation of the proceedings. Notably, the case at bar was
initiated by petitioner himself through his mother and not through
Bernadette and Enrique Yulo. It is settled that the legitimacy of the
child can be impugned only in a direct action brought for that
purpose, by the proper parties and within the period limited by law.
Ong vs. Diaz
DNA testing not impossible even if the putative father is already
dead; any DNA sample from the deceased will do; DNA is the most
reliable testing to prove filiation
December 17, 2007
Facts:
Jinky Diaz filed in behalf of her daughter, Joanne Diaz a
complaint for compulsory recognition with prayer for support
pending litigation.
Jinky met Rogelio Ong when she was still married to a
Japanese national. Nonetheless, they cohabitated and thus their
produced a baby named Joanne. However, Rogelio abandoned
Jinky and Joanne alleged that he is not the father of the child and
refused to give support.
RTC ordered Rogelio to give a monthly support of Php 10,000
as Joanne is his natural child. Rogelio filed a motion to lift the order
and a motion for reconsideration. RTC granted his motion for a new
trial. RTC still found that Joanne is the illegitimate child of Rogelio,
as both evidence proved that the husband was outside the country
and no evidence was shown that he ever arrived in the country in
the year 1997.
Rogelio appealed to the CA. During the pendency of this case
however Rogelio died. The appellate court ordered that the case be
remanded to the trial court and that the parites to make
arrangements for DNA analysis. Upon a motion for reconsideration,
the CA held that DNA testing is the most reliable and effective
method of settling the present dispute.
Issue:
W/N the CA erred in remanding the case to the trial court for the
conduct of DNA testing.
Ruling:
The alleged impossibility of complying with the order of the
remand for purposes of DNA testing is more ostensible than real.
Pettiioner’s argument is without basis especially as the New Rules
on DNA Evidence allows the conduct of DNA testing, either motu
proprio or upon application of any person wh ohas a legal interest in
the matter in litigation.
The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist appropriate
biological samples of his DNA.
“Biological sample” means any organic material originating
from a person’s body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva, and other
body fluids, tissues, hairs and bones.
Even if Rogelio died, any of the biological samples as
enumerated above as may be available, may be used for DNA
testing. In this case, petitioner has not shown the impossibility of
obtaining an appropriate biological sample that can be utilized for
the conduct of DNA testing.
Article 167. The child shall be considered
legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.
Why is there a need for the provision?
1. to protect the child from the passions of his or her parents
2. A mother, out of vengeance to her husband and wishing to
injure him deeply or make him jealous may declare that her
child is not his, although the declaration is untrue
3. when the wife had sexual intimacies with her husband and
another man within the same period, not even she can tell who
is the father of the child (Manresa)
‣ there is still that possibility that the child is the huband’s
Macagangang vs. CA - Even if the mother is convicted of adultery,
the child is still considered legitimate in the absence of any
evidence to the contrary. And a married woman cannot be allowed
to basterdize her child.
Cabatania vs. CA - The presumption of legitimacy does not only
flow out of a declaration in the statute but is based on the broad
principles of natural justice and the supposed virtue of the mother. It
is grounded on the policy to protect the innocent offspring from the
odium of illegitimacy
Applicability of 166 and 167
1. presupposes a valid marriage between the husband and the
wife
2. only the husband can invoke the grounds under Article 166; the
heirs can in proper cases under Article 171 can invoke the
grounds under Article 166.
3. can only do so in a direct action
Concepcion vs CA
void marriage because of bigamy (mother had 2 marriage); child in
that bigamous marriage is a legitimate child of the first husband; in
the eyes of the law, the 2nd husband was never a husband and
thus not related to the child in that 2nd marriage
August 31, 2005
Facts:
Theresa Almonte’s marriage with Gerardo Concepcion was
annulled before the RTC on the ground of bigamy. She had married
Mario Gopiao 9 years prior to that of Gerardo, the earlier being still
valid and subsisting. Consequently, Jose Gerardo was declared an
illegitimate child whose custody was given to Theresa and visitation
rights was given to Gerardo.
Feeling betrayed and humiliated, she moved for the
reconsideration of the visitation rights, that it should be completely
removed and that the last name of Jose Gerardo should be
changed from Concepcion to Almonte. RTC denied Theresa’s
motion.
CA affirmed the RTC decision in toto. An illegitimate child
cannot use the mother’s surname motu proprio. The child,
represented by the mother should file a separate proceeding for a
change of name under Rule 103 of the Rules of Court to effect the
correction in the civil registry.
Upon Theresa’s motion for reconsideration, the CA reversed its
ruling and held that Jose Gerardo is the son of Theresa by Mario
during the first marriage. It brushed aside the common admission of
Gerardo and Theresa that Jose Gerardo was their son. CA denied
the motion for reconsideration of Gerardo.
Held:
W/N Jose Gerardo is the illegitimate child of Gerardo
Gerardo cannot invoke Article 166(1)(b) of the Family Code. He
has no standing in law to dispute the status of Jose Gerardo. Only
Mario Gopiao or in proper cases, his heirs, are the ones who can
contest the legitimacy of the child Jose Gerardo born to his wife —
they have the personal right to do so in proper cases. Since the
marriage of Gerardo and Theresa was void from the very beginning,
he never became her husband and thus never acquired any right to Here, the status of Jose Gerardo as a legitimate child was not
impugn the legitimacy of her child. under attack as it could not be contested collaterally and even then,
The presumption of legitimacy on the basis of Article 166(1)(b), only by the husband or in extraordinary cases, his heirs. Hence, the
it must be shown beyond reasonable doubt that there was no presentation of proof of legitimacy in this case was improper and
access that could have enabled the husband to father the child. uncalled for.
During the period that Gerardo and Theresa were living Birth Certificate is only prima facie evidence and can be
together in Fairview, QC, Mario was living in Loyola Heights which is rebutted by preponderance of evidence.
scant 4 KM away from each other. No evidence at all was presented
to disprove access between them. The separation between Theresa
and Mario was certainly not such as to make it physically
impossible for them to engage in the marital act.
Thus, Jose Gerardo shall have the right to bear the surnames
of his father, Mario and mother Theresa. Gerardo cannot impose his
surname on Jose, who in the eyes of the law, is not related to him in
any way. Gerardo has no legally demandable right to visit Jose
Gerardo.
W/N the admission of Theresa that she never had sex with
Mario was binding on her.
No. Article 167 of the Family Code states that an assertion
by the mother against the legitimacy of her child cannot affect
the legitimacy of a child born or conceived within a valid
marriage. Assuming that this is true, it does not mean that there
was never an instance where Theresa could have been together
with Mario or that there occurred absolutely no intercourse between
them. To give credence to Theresa’s admission is to arrogate unto
herself a right exclusively lodged in the husband. Last, for reasons
of public policy, decency and morality, a married woman cannot say
that she had no intercourse with her husband and that her offspring
is illegitimate.
The fact that both Theresa and Gerardo admitted and agreed
that Jose Gerardo was born to them is in effect, an agreement that
the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother to
make a declaration against the legitimatcy of her child and
consenting to the denieal of filiation of the child by persons other
than her husband.
W/N the birth certificate is sufficient proof that Jose Gerardo is
Gerardo’s illegitimate child.
Birth Certificate not given credence because it was not formally
offered as evidence. Moreover, the law itself establishes the
status of a child from the moment of his birth. The status of a
child is determined by the law itself. To prove the filiation of a
child is only necessary when his legitimacy is being questioned
or when the status of a child born after 300 days following the
termination of marriage is sought to be established.
 Article 168. If the marriage is terminated and
the mother contracted another marriage
within three hundred days ater such
termination of the former marriage, these
rules shall govern in the absence of proof to
the contrary:
(1) A child born before one hundred eighty
days after the solemnization of the
subsequent marriage is considered to
have been conceived during the former
marriage, provided it be born within three
hundred days after the termination of the
former marriage;
(2) A child born after one hundred eighty
days following the celebration of the
subsequent marriage is considered to
have been conceived during such
marriage, even though it be born within
the three hundred days after the
termination of the former marriage.
When is Article 168 applicable (requisites)
1. the first marriage is terminated
‣ either by death or declared void
‣ no more presumption of access after termination of marriage
because there is no more essential obligation of marriage to
cohabit
2. the mother contracted a subsequent marriage
3. the subsequent marriage was contracted within 300 days after
the termination of the previous marriage;
4. a child born
5. there is no evidence to prove that the child is that of the first or
second marriage
| wife contracted a marriage
| 180 days | after 180 days
300 days————————————————————————-
father is the former husband
father is the subsequent/present husband
Purpose of the prohibition
➡ People vs. Rosal - The purpose of the law is to prevent doubtful
paternity
➡ U.S. vs. Dulay - It is intended to prevent confusion in
connection with filiation and paternity, inasmuch as she might
have conceived and became pregnant by her late husband.
Article 169. The legitimacy or illegitimacy of a
child born after three hundred days following
the termination of the marriage shall be
proved by whoever alleges such legitimacy
or illegitimacy.
What if the child is born after 300 days following the termination
of the marriage?
‣ legitimacy or illegitimacy of such children shall be proved by
evidence by whoever alleges or claims the same
Article 170. The action to impugn the
legitimacy of the child shall be brought within
one year from the knowledge of the birth or
its recording in the civil register, if the
husband or, in a proper case, any of his
heirs, should reside in the city or municipality
where the birth took place or was recorded.
If the husband or, in his default, all of
his heirs do not reside at the place of birth as
defined in the first paragraph or where it was
recorded, the period shall be two years if
they should reside in the Philippines; and
three years if abroad. If the birth of the child
has been concealed from or was unknown to
the husband or his heirs, the period shall be
counted from the discovery or knowledge of
the birth of the child or of the fact of
registration of said birth, whichever is earlier.
Recap:
➡ Family Code fixes civil status to children born in marriages
➡ civil status cannot be assailed indirectly or collaterally; only in a
direct action for the said purpose
➡ that direct action must be filed by the husband only, or in his
default, his heirs
➡ the husband can only impugn the legitimacy of such child within
the prescriptive periods provided by law
Barbiera vs. Catotal - Article 170 does not apply in an action to
cancel the birth certificate of a child who claims to be a child of a
parent, on ground of being void ab initio does not prescribe.
 Prescriptive Periods Benitez-Badua vs. CA
January 24, 1994
If the husband or his heirs within 1 year from the knowledge Facts:
reside in the same city/ of birth or its recording in the civil This involves a battle for the administration of the estate of the
municipality register late Vicente Benitez. The following claim to be the heirs of the
deceased: on one hand, his Victoria and Feodor Benitez-Aguilar
if the husband or his heirs do within 2 years if they live in the (sister and nephew of Vicente); and on another hand, Marissa
not reside in the same city/ Philippines Badua-Benitez who claims that she is the legitimate child of Vicente
municipality within 3 years if they live abroad
Benitez and Isabel Chipongian.
if the birth was concealed from from the discovery or knowledge RTC decided in favor of Marissa pursuant to Article 166 and
or unknown to the husband or of the birth of the child or of the 170 of the Family Code. CA reversed the decision on the ground
the heirs fact of registration of said birth, that the RTC erred in applying Articles 166 and 170 of the Family
whichever is earlier Code.
Petitioner files this review before the SC
Issue:
Prescription period starts from the time of the knowledge of the birth
W/N Articles 164, 166, 170 and 171 of the Family Code are
and not from the knowledge that the child was not his.
applicable in this case.
No, they are not applicable in this case. A careful reading of
After the lapse of the prescription period, the status of the child
the above articles will show that they do not contemplate a
becomes fixed and cannot be questioned anymore.
situation, like in the instant case, where a child is alleged not to
be the child of nature or biological child of a certain couple.
Rather, these articles govern a situation where a husband (or his
heirs) denied as his own a child of his wife.
Article 171. The heirs of the husband may Thus, under Article 166, it is the husband who can impugn the
impugn the filiation of the child within the legitimacy of said child by proving: (1) it was physically impossible
for him to have sexual intercourse with his wife within the first 120
period prescribed in the preceding Article days of the 300 days immediately preceding the birth of the child
only in the following cases: (2) that for biological or other scientific reasons, the child could not
(1) If the husband should die before the have been his child; (3) that in case of children conceived through
artificial insemination, the written authorization or ratification by
expiration of the period fixed for bringing
either parent was obtained through mistake, fraud, violence,
this action; intimidation or undue influence.
(2) If he should die after the filing of the The CA did not err when it refused to apply these articles to the
complaint, without having desisted case at bench as it is not one where the respondents impugn the
legitimacy of Marissa but where they contend that petitioner was not
therefrom; or born to Vicente and Isabel — that she is not their biological child.
(3) If the child was born after the death of the
husband. W/N Marissa is a biological child or adopted child of the
deceased spouses.
No. (1) Isabel Chipongian was never pregnant; (2) Marissa’s birth
General Rule: It is only the husband who can question the certificate stated that she was born at home when Isabel would
legitimacy of a child born to his wife. have been 36 years old when she gave been to her thus high risk;
Exception: his heirs are allowed to impugn the legitimacy of a child (3) in an extrajudicial settlement with of Isabel’s death, it stated that
or continue the one already begun by him when no desistance had Dr. Nilo Chipongian that he is the sole heir because Isabel died
been executed without descendants; (4) Isabel had to implore her husband to give
her properties to Marissa which was done without legal papers. The
weight of these findings was not negated by the documentary
evidence presented by petitioner (birth certificate)
Babiera vs. Catotal
June 15, 2000
Facts:
Presentacion Catotal, the daughter of the late spouses Eugenio
and Hermogena Catotal, filed before the RTC a petition for
cancellation of the entry of birth of Teofista Barbiera. Teofista’s
mother, Flora Guinto, their housemaid, simulated the birth certificate
to make it seem that Eugenio and Hermogena are her parents.
Teofista filed a Motion to Dismiss on the ground that
Presentacion had no legal capacity to file the instant petition
pursuant to Article 171 of the Family Code and the same is already
barred by prescription.
RTC declared Teofista’s birth certificate null and void.
CA held that petitioner was not the biological child of
Hermogena and Eugenio Catotal. At the time of her birth,
Hermogena was already 54 years old. Petitioner’s Birth certificate
also was not signed by the local civil registrar. The signature of
Hermogena was also different than her usual ones. Moreover, the
provisions contemplated a situation wherein the husband or his
heirs asserted that the child of the wife was not his. In this case, the
action involved the cancellation of the child’s birth certificate for
being void ab initio on the ground that the child did not belong to
either the father or the mother.
Issue:
W/N respondent Presentacion had legal standing to sue
pursuant to Article 171 of the Family Code.
Respondent has requisite standing to initiate the present
action. The interest of respondent in the civil status of petitioner
stems from an action for partition which the latter filed against the
former. The case concerned the properties inherited by respondent
from her parents.
Article 171 of the Family Code is not applicable to the
present case. A close reading of this provision shows that it
applies to instances in which the father impugns the legitimacy
of the wife’s child. The provision, however, presupposes that
the child was the undisputed offspring of the mother. The
present case alleges and shows that Hermogena did not give birth
to petitioner. In other words, the prayer herein is not to declare that
petitioner is an illegitimate child of Hermogena, but to establish that
the former is not the latter’s child at all. Verily, the present action
does not impugh petitioners filiation to Spouses Catotal because
there is no blood relation to impugn in the first place.
W/N this action has already prescribed pursuant to Article 170.
No. The present action involves the cancellation of petitioner’s
Birth Certificate, it does not impugn her legitimacy. Thus, the
prescriptive period set forth in Article 170 of the Family Code does
not apply. Verily, the action to nullify the Birth Certificate does
not prescribe because it was allegedly void ab initio.
W/N the presumption of regularity in the issuance of the Birth
Certificate has been overcome
Yes. The specific facts attendant in this case, as well as the
totality of evidence, negate the presumption. (1) birth certificate was
not signed by the local civil registrar, (2) CA observed that the
mother’s signature therein was different from her signatures in other
documents presented, (3) circumstances surrounding the birth of
petitioner show that Hermogena is not the mother (no evidence of
doctor’s records, no witness was presented to attest to the
pregnancy, Hermogena was already 54 years old when petitioner
was born, (4) deposition of Hermogena which states that she did
not give birth to petitioner, and that the latter was not hers nor her
husband’s.
De Jesus vs. Dizon
child conceived with 2nd partner during the subsistence of the 1st
marriage; the child with the 2nd partner is presumed to be a
legitimate child of the husband in the subsisting marriage
October 2, 2001
Facts:
This case involves the altering of the status of Jacqueline and
Jinkie de Jesus from being legitimate children of Carolina Aves de
Jesus with Danilo de Jesus to illegitimate children of Juan Dizon in a
notarized document. Juan Dizon died leaving behind considerable
assets consisting of shares of stock in various corporations and
some real property.
The surviving spouse and legitimate children of Juan Dizon,
including the corporations of which deceased was a stockholder,
sought the dismissal of the case filed by the petitioners to partition
the Dizon estate before the RTC.
RTC denied the motion to dismiss and the subsequent motion
for reconsideration.
CA upheld the decision of the trial court and remanded it to the
same.
Respondents filed an omnibus motion praying for the dismissal
of the case on the ground that the action was made to compel the
recognition of petitioners as being the illegitimate children of
deceased and the partition sought was merely an ulterior relief once against its legitimacy or may have been sentenced as having been
petitioners would have been able to establish their status as such an adulteress.
heirs. RTC granted the motion.
Petitioners filed before the SC. They maintain that their
recognition as being illegimate children of the decedent, embodied
in an authentic writing, is in itself sufficient to establish their status
as such and does not require a separate action for judicial approval
following the doctrine enunciated in Divinagracia vs. Bellocillo.
Issues:
W/N Jacqueline and Jinkie are illegitimate children of Juan
Dizon.
No. They are the legitimate children of Danilo de Jesus and
Carolina Aves de Jesus, conceived and born in wedlock.
The presumption that children born in wedlock are
legitimate. This presumption indeed becomes conclusive in the
absence of proof that any of the circumstances under Article 166 of
the Family Code are present and the husband must impugn the
legitimacy before the expiration of the periods set forth in Article
170 and in proper cases, Article 171 of the Family Code.
In an attempt to establish their illegitimate filiation to the late
Juan Dizon, petitioners, in effect, would impugn their legitimate
status as being children of Danilo de Jesus and Carolina Aves de
Jesus. This step cannot be aptly done because the law itself
establishes the legitimacy of children conceived or born during the
marriage of the parents. The presumption of legitimacy fixes a
civil status for the child born in wedlock, and only the father, or
in exceptional instances, the latter’s heirs, can contest in an
appropriate action the legitimacy of a child born to his wife.
Thus, it is only when the legitimacy of a child has been
successfully impugned that the paternity of the husband can be
rejected.
The rule is that the written acknowledgement made by the
deceased Juan Dizon establishes petitioners’ alleged illegitimate
filiation to the decedent cannot be validly invoked to be of any
relevance in this instance. This issue, i.e. whether the petitioners are
indeed the acknowledged illegitimate offsprings of the decedent,
cannot be aptly adjudicated without an action having been first
been instituted to impugn their legitimacy as being the children of
Danilo de Jesus and Carolina de Jesus born in lawful wedlock.
Jurisprudence is strongly settled that the paramount declaration of
legitimacy by law cannot be attacked collaterally, one that can
only be repudiated or contested in a direct suit specifically brought
for that purpose. Indeed, a child so born in such wedlock shall be
considered legitimate although the mother may have declared
Chapter 2 recognition that does not require a separate action for judicial
PROOF OF FILIATION approval
Proofs of Filiation
‣ De Jesus vs. De Jesus - an admission of legitimate filiation in a
public instrument or a private handwritten instrument and
primary evidence (1) record of birth appearing in the civil
register signed by the parent concerned is a complete act of
Article 172. The filiation of legitimate children (2) final judgement recognition without need of court action.
is established by any of the following: (3) written admission of filiation in a
handwritten instrument signed by the SECONDARY EVIDENCE / GROUNDS TO COMPEL
(1) The record of birth appearing in the civil parent concerned Open and continuous possession of status of a child
register or a final judgement; or ‣ Quismundo vs. WCC - The possession of status of a child does
(2) An admission of legitimate filiation in a secondary evidence (1) the open and continuous possession of
not in itself constitute an acknowledgement; it is only a ground
the status of the child as legitimate or
public document or a private handwritten illegitimate
for a child to compel recognition by his assumed parent.
‣ Mendoza vs. CA - “continuous” does not mean that the
instrument and signed by the parent (2) any other means allowed by the Rules of
concession of status shall continue forever but only that it shall
Court and special laws
concerned. not be of an intermittent character while it continues. The
In the absence of the foregoing evidence, possession of such status means that the father has treated
PRIMARY EVIDENCE / VOLUNTARY RECOGNITION the child as his own, directly and not through others,
the legitimate filiation shall be proved by: Record of Birth spontaneously and without concealment though without
(1) The open and continuous possession of ‣ Article 410, NCC - The books making up the civil register and publicity xxx. There must be a showing of the permanent
the status of a legitimate child; or all documents relating thereto shall be considered public intention of the supposed father to consider the child as his
documents and shall be prima facie evidence of the facts
(2) Any other means allowed by the Rules of own, by continuous and clear manifestation of paternal love
therein contained and care.
Court and special laws. ➡ thus, a birth certificate appearing in the civil register is a ‣ Perla vs. Baring - The paternal affection and care must not be
good proof as it proceeds from an official government attributed to pure charity
source; it is considered as a public document and as
such is prima facie evidence of the facts stated therein Possession of Status of Illegitimate Child
Kinds of Recognition ‣ Fernandez vs. CA - A record of birth is not competent ‣ Delgado Vda. de De la Rosa vs. Heirs of Marciana Rustia Vda.
evidence if the alleged father had no hand in its preparation. de Damian - The possession of the status of an illegitimate
Compulsory in the ff. cases: child from her birth until the death of her putative father
(where the (1) rape, abduction, seduction,when the period of the Final Judgement Guillermo Rustia is only a mere ground by which she could
child can offense coincides more or less with that of the ‣ refers to a decision of a competent court finding the child as have compelled acknowledgement through the courts. Any
compel the conception the legitimate or illegitimate child as the case may be, of a judicial action for compulsory acknowledgement has dual
parent for (2) when the child is in continuous possession of parent or parents and which decision is already final limitation: (1) the lifetime of the child and (2) the lifetime of the
recognition) status of a child of the alleged father (or mother) ‣ final judgement is a judicial decsiion bearing on the status of
by the direct acts of the latter or of his family putative parent. On the death of either, the action for
the children as legitimate and hence, binding and conclusive compulsory recognition can no longer be filed.
(3) when the child was conceived during the time
‣ Rivero vs. CA - paternity and filiation, or the lack of the same,
when the mother cohabited with the supposed
father; is a relationship that must be judicially established, and it is for Divinagracia vs. Bellosillo - If the child had been recognized by any
(4) when the child has in his favor any evidence or the court to determine its existence or absence. It cannot be of the modes in the first paragraph of Article 172, there is no further
proof that the defendant is his father left to the will or agreement of the parties. need to file any action for acknowledgement because any of the
said modes is by itself a consummated act.
Voluntary may be made in the: Written Admission of Filiation
(no need for (1) record of birth ‣ refers to a public document or private handwritte
court action) (2) a will Evidence Under the Rules of Court and Special Laws
instrument signed by the parent concerned admitting his or ‣ Mendoza vs. CA - may consist of baptismal certificate, a
(3) a statement before a court of record; or
her filiation to the child judicial admission, a family bible in which his name has been
(4) in any authentic writing
‣ Verceles vs. Posada - Any authentic writing is treated not just a entered, common reputation respecting his pedigree,
ground for compulsory recognition, it is in itself a voluntary admission by silence, the testimony of witnesses and such
 other kinds of proof admissible under Rule 130 of the Rules of
Court
‣ Adriano vs. De Jesus - Baptismal certificates are not proofs
of filiation. They only prove the administration of the
sacrament of baptism but not proof of the truth of the
statements made therein regarding the parents of the person
baptized.
‣ Jison vs. CA - Baptismal certificates can be admitted as part of
the testimony of the petitioner to corroborate the claim of
filiation
‣ DNA analysis as evidence
Remedies of an Illegitimate Child who has not been voluntarily
recognized
➡ can compel recognition
1. File a separate action against the parent concerned to compel
recognition
2. If the parent is already dead, the child can file the action against
all the potential heirs who could be prejudiced by his
recognition together with an action for the enforcement of his
rights against his parent or the latter’s heirs; or
3. intervene in the administration proceeding for the settlement of
his deceased parent’s estate and therein seek recognition and
at the same time enforce his hereditary rights (Divinagracia vs.
Rovira)
Ong vs. Diaz
DNA testing not impossible even if the putative father is already
dead; any DNA sample from the deceased will do; DNA is the most
reliable testing to prove filiation
December 17, 2007
Facts:
Jinky Diaz filed in behalf of her daughter, Joanne Diaz a
complaint for compulsory recognition with prayer for support
pending litigation.
Jinky met Rogelio Ong when she was still married to a
Japanese national. Nonetheless, they cohabitated and thus their
produced a baby named Joanne. However, Rogelio abandoned
Jinky and Joanne alleged that he is not the father of the child and
refused to give support.
RTC ordered Rogelio to give a montly support of Php 10,000 as
Joanne is his natural child. Rogelio filed a motion to lift the order
and a motion for reconsideration. RTC granted his motion for a new
trial. RTC still found that Joanne is the illegitimate child of
Rogelio, as both evidence proved that the husband was outside
the country and no evidence was shown that he ever arrived in
the country in the year 1997.
Rogelio appealed to the CA. During the pendency of this case
however Rogelio died. The appellate court ordered that the case be
remanded to the trial court and that the parites to make
arrangements for DNA analysis. Upon a motion for reconsideration,
the CA held that DNA testing is the most reliable and effective
method of settling the present dispute.
Issue:
W/N the CA erred in remanding the case to the trial court for the
conduct of DNA testing.
Ruling:
The alleged impossibility of complying with the order of the
remand for purposes of DNA testing is more ostensible than real.
Pettiioner’s argument is without basis especially as the New Rules
on DNA Evidence allows the conduct of DNA testing, either motu
proprio or upon application of any person who has a legal interest in
the matter in litigation.
The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist appropriate
biological samples of his DNA.
“Biological sample” means any organic material originating
from a person’s body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva, and other
body fluids, tissues, hairs and bones.
Even if Rogelio died, any of the biological samples as
enumerated above as may be available, may be used for DNA
testing. In this case, petitioner has not shown the impossibility of
obtaining an appropriate biological sample that can be utilized for
the conduct of DNA testing.
Fernandez vs. CA
evidence presented not sufficient to prove filiation: (1) Birth
Certificate (2) Baptismal Certificate (3) Photos of the baptism (4)
Photos at home with respondent (5) Testimonies of Fr. Fernandez
and Violeta
February 16, 1994
Facts:
Claro Antonio and John Paul are children born out of a
bigamous marriage that was void because of the lack of marriage
license of Violeta and Carlito (met in the tennis court of Meralco.)
Violeta claims that she only found out about Carlito’s subsisting
marriage after her 2 children were born.
Violeta files a petition for the support of her 2 children but the
same was dismissed. They filed another action for recognition and
support against Carlito. They presented the following documentary
evidence:
(1) Birth Certificate
(2) Baptismal Certificate
(3) Photographs taken during the baptism of Claro
(4) Pictures of Carlito and Claro taken at the home of Violeta
Esguerra
Respondent claims that he is only one of the sponsors of the
baptism of Claro.
RTC ruled in favor of the petitioners entitling them Php 2,000
each a month.
On appeal, the decision was set aside by the CA on the
ground that the proof relied upon by the RTC is inadequate to prove
the paternity and filiation of petitioners.
Issue:
W/N there is sufficient proof to establish the paternity of Carlito
Ruling:
No. Petition dismissed.
(1) Birth Certificate - The records do not show that private
respondent had a hand in the preparation of said certificates;
Roces vs. LCR - LCR had no authority to make or record
the paternity of an illegitimate child upon the information of
a 3rd person and the certificate of birth of an illegitimate
child, when signed only by the mother, is incompetent
evidence of fathership of such child.
Berciles - a birth certificate not signed by the alleged
father therein indicated is not competent evidence of
paternity.
(2) Baptismal Certificate - there is no showing that the respondent
participated in its preparation; In Berciles vs. Systems, the
Court held that if in the preparation of the record of the
decedent had no intervention, tha baptismal record cannot be
held to be a voluntary recognition of parentage.
Macandang vs. CA - baptismal ceritifcate may be
considered public documents, although they can only serve
as evidence of the administration of the sacraments on the
dates so specified. They are not necessary competent
evidence of the veracity of entries therein with respect to
child’s paternity.
(3) Photographs taken during the baptism of Claro - far from proofs
that private respondent is the father of petitioner. He was in the
baptism as one of the sponsors of petitioner Claro. His
testimony was corroborated by Rodante Pagtakhan.
(4) Pictures of Carlito and Claro taken at the home of Violeta
Esguerra - fall short of the evidence required to prove paternity.
In Tan vs. Trocio, where the maid’s child was given toys by the
 respondent and playing and photos thereof is inconclusive to
prove paternity.
(5) Testimony of Fr. Fernandez - not given credence; no proof that
he is a close friend of Violeta and that is not likely that he
remembers Violeta and Carlito out of the many parents whose
babies he baptizes.
(6) Testimony of Violeta - self-serving
Fernandez vs. Fernandez
baby bought by spouses; no right to inherit
August 28, 2001
Facts:
The spouses Jose and Generosa Fernandez died childless.
Not until they bought a baby for Php20 and named it Rodolfo. They
took care of Rodolfo and sent him to school.
Jose Fernandez died and left 2 parcels of land and a 2 storey
building.
Rodolfo and Generosa executed a Deed of Extra-judicial
Partition diving and allocating the residential house and the lot
which it stood on to Rodolfo. On the same day, Generosa executed
a Deed of Absolute Sale to Rodolfo’s son, Eddie the 119.5 sq m
including the building.
The nephews and nieces of Jose Fernandez knew about the
transaction and filed a case against Rodolfo. They alleged that
Eddie and Rodolfo was able to obtain the deed of absolute sale and
the Deed of Extra-Judicial Partition due to forgery and took
advantage of Generosa’s total physical and mental capacity
RTC rendered a decision in favor of the plaintiffs. It held that
the Deed of Absolute sale and Deed of Extra-Judicial Partition are
both null and void. Rodolfo’s claim as a son was negated by the
following: (1) told to stop studying to help in the clinic of Dr.
Fernandez (2) failed to present any birth certificate (3) book entitled
Fercolla clan which showed the genealogy of the family of Dr. Jose
and Generosa Fernandez without a child (4) certification issued by
the Records Management and Archives Office that there was no
available records about the birth of petitioner (5) application of Dr.
Fernandez for backpay certificate naming Rodolfo his son
considering that there were blemishes or alteration in the
original copy (6) Rodolfo’s baptismal certificate was falsified since
there were no records of baptism from the parish
CA affirmed RTC decision. It added that the public document
contemplated in Article 172 of the FC referred to the written
admission of filiation embodied in a public document purposely
executed as an admission of filiation and no as obtaining in this
case wherein the public document was executed as an application
for the recognition of rights to back pay.
Held:
W/N this case is tantamount to collaterally attacking the
legitimacy of Rodolfo
No. That doctrine has no application in the instant case
considering that respondent’s claim was that petitioner Rodolfo was
not born to the deceased spouses Jose and Generosa. It is not
where they are contesting the fact that Rodolfo is not the legitimate
child of their uncle.
Thus it is necessary to pass upon the relationship of the
petitioner Rodolfo Fernandez to the deceased spouses Fernandez
for the purpose of determining what legal right Rodolfo has in the
property subject of the extra-judicial partition.
W/N the evidence is suffcient to prove paternity and filiation.
No. As held by the CA, public documents contemplated in
Article 172 of the Family Code refer to the written admission of
filiation embodied in a public document purposely executed as
an admission of filiation and not as obtaining in this case
wherein the public document was executed as an application
for the recognition of rights to back pay or baptismal certificate
which only proves that Rodolfo had been baptized and was
done on that day.
Rule of 132 Section 23 of the Revised Rules on Evidence is not
absolute in the sense that the contents of a public document are
conclusive against the contracting parties as to the truthfulness of
the statements made therein. They constitute prima facie evidence
of the facts which give rise to their execution and of the date of the
latter.
W/N the open and contintuous possession of the status of
legitimate child is sufficient to prove paternity and filiation.
No. Open and continuous possession of the status of the
legitimate child is meant the enjoyment by the child of the position
and privileges usually attached to the status of a legitimate child
such as bearing the paternal surname, treatment by the parents
and family of the constant attendance to the child’s support and
educated, and giving the child the reputation of being a child of his
parents. In Quismundo vs. WCC, the possession of status of a child
does not in itself constitute an acknowledgement; it is only a ground
for a child to compel recognition by his assumed parent.
W/N the Deed of Extra Judicial Partition and Deed of Absolute
Sale are valid.
The Deed of Extra Judicial Partition is null and void insofar as
Rodolfo is concerned pursuant to Article 1105 of the New Civil
Code which states that “a partition which includes a person
believed to be an heir but who is not, shall be void with respect to
such person.”
The Deed of Absolute Sale is valid for Eddie paid for the
property with the money he saved from his work in Saudi Arabia.
Respondents failed to prove otherwise. As to the forgery, the Court
held that forgery cannot be presumed — it must be proved by clear,
positive and convincing evidence and whoever alleges it has the
burden of proving the same.
However, since Generosa also sold the 1/4 share of the
building which is the share of Jose’s heirs. The sale of the entire
building without the consent of the respondents is not null and void
as only the rights of the co-owner seller are transferred, thereby
making the buyer, petitioner Eddie, a co-owner of the 3/4 share of
the building together with the respondents who owned the 1/4
share.
Labagala vs. Santiago
Ida Lagabala or Ida Santiago? Not a child of Jose Santiago; birth
certificate showed that her parents are Leon Lagabala and
Esperance Cabrigas; deed of sale void for the simulated price; not
a deed of donation, could not have accepted it legally as a minor
December 2001
Facts:
Ida Lagabala claimed to be the daughter of deceased Jose
Santiago thus entitled to 1/3 share of the subject property. In fact,
she had the title under her name pursuant to a Deed of Sale
executed by the deceased. She presented her baptismal certificate
and her testified.
Ida’s claim was questioned by Jose Santiago’s sisters, Amanda
and Nicolasa. They said that they have never seen her and that her
real name is Ida Lagabala and not Ida Santiago. They presented a
certified true copy of Ida Lagabala’s birth certificate which states
that she is Ida Lagabala and also had the same birthday.
RTC ruled in favor of the petitioner. They observed that the
respondents were not candid with the court in refusing to recognize
petitioner as Ida Santiago and insisting that she was Ida Lagabala,
thus affecting their credibility.
CA reversed the ruling of the RTC. It found that the birth
certificate of Ida Lagabala presented by respondents showed that
Ida was born of different parents, not Jose and his wife. It also took
into account the statement made by Jose in another case that he
did not have any child.
Held:
W/N respondents may impugn petitioner’s filiation in this action
for recovery of title and possession
Yes. This case is not one impugning petitioner’s legitimacy.
Respondents are asserting not merely that petitioner is not a
legitimate child of Jose, but that she is not a child of Jose at all.
The present action is one for recovery of title and possession, and
thus outisde the scope of Article 263 on prescriptive periods.
W/N there is sufficient proof to establish paternity and filiation
between Ida and Jose Santiago.
No. Although the Ida claims that the birth certificate presented
was not hers, she did not present her birth certificate that would
prove that she is the daughter of Jose Santiago. Instead she offered
her baptismal certificate, a private document, is not conclusive
proof of fiiliation. More so are the entries made in an income tax
return, which only shows that income tax has been paid and the
amount thereof.
Her use of family name does not establish pedigree.
Thus we are constrained to agree with the factual finding of the
CA that petitioner is in reality the child of Leon Lagabala and
Cornelia Cabrigas and not of Jose Santiago and Esperanza
Cabrigas.
W/N petitioner is entitled to 1/3 portion of the property he co-
owned with respondents, through succession and possession
of property
Not being a child of Jose, it follows that petitioner cannot inherit
from him through intestate succession.
There is also no valid sale in this case. Jose did not have the
right to transfer ownership of the entire property to petitioner since
2/3 thereof belonged to his sisters. Petitioner could not have given
her consent to the contract, being a minor at the time. Consent of
the consenting parties is among the essential requisites of a
contract including one of sale, absent which there can be no vlaid
contract. Moreover, petitioner admittedly did not pay any centavo
for the property, which makes the sale void. Article 1471 of the Civil
Code states: “If the price is simulated, the sale is void, but the act
may be shown to have been in reality a donation, or some other act
or contract.”
Neither can it be a valid deed of donation for it lacks the
acceptance of the donee as required by Article 725 of the Civil
Code. Being a minor in 1979, the acceptance of the donation
should have been made by her father, Leon Lagabala or her mother,
Cornelia Cabrigas or her legal representative pursuant to Aritcle
741. No one mentioned in the law accepted the donation for Ida.
Article 173. The action to claim legitimacy
may be brought by the child during his or her
lifetime and shall be transmitted to the heirs
should the child die during minority or in a
state of insanity. In these cases, the heirs
shall have a period of five years within which
to institute the action.
The action already commenced by the
child shall survive notwithstanding the death
of either or both of the parties.
Action to Claim Legitimacy is Imprescriptible (regardless of what
kind of proof he has)
➡ the right of action for legitimacy devolving upon the child is
of a personal character and generally pertains exclusively to
him
➡ can be filed anytime during his lifetime
➡ as an exception, the right of action to claim legitimacy can be
passed on to the heirs in 3 instances:
(1) if the child dies during minority => 5 years
(2) if the child dies in a state of insanity => 5 years
(3) if the child dies after having filed the action and the
proceedings have not yet lapsed => action survives
notwithstanding the death of either or both of the parties
This article can also apply to claims of illegitimacy
‣ Relate to Article 175, FC: xxx The action (to claim illegitimacy)
must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of
Article 172, in which case the action may be brought during the
lifetime of the alleged parent.
➡ if to compel the parent for recognition => must be brought
during the lifetime of the parent
Aguilar vs. Siasat
SSS E-1 Form is a public document conclusive evidence of filiation;
Rodolfo Aguilar is the legitimate child of spouses Candelaria Siasat-
Aguilar and Alfredo Aguilar
Facts:
1. Rodolfo Aguilar claims to be the son of the deceased spouses
Candelaria Siasat-Aguilar and Alfredo Aguilar.
2. Rodolfo Aguilar filed a civil case for mandatory injunction with
damages against repsondent Edna Siasat for stealing the
property titles which rightly belongs to him as the sole heir of the
Spouses Aguilar.
✓ school records where it stated that Alfredo is his father
✓ individual income tax return which indicated that Candelaria
is his mother
✓ Alfredo’s SSS Form E-1, a public instrument subscribed and
made under oath by Alfredo Aguilar during his employment
in BMMC, which bears his signature and thumb marks and
indicates that petitioner is his son and dependent
✓ Letter of BMMC Secretary addressed to BMMC supervisor
that petitioner as Alfredo Aguilar’s son and recommending
employment
✓ Certification by the Bacolod Civil Registry to the effect that
record of births during the period 1945-1946 were all
destroyed by nature, hence no true copies of the Certificate
of Live Birth of petitioner could be issued
3. Edna on the other hand claims that she is the heir
- spouses died with no issue as evidenced by the affidavit
executed by no other than Candelaria that she has no
children
- that she rightly inherited the estate of Candelaria because
Alfredo predeceased Candelaria and that when the latter
died, the Siasats inherited Candelaria’s estate.
- Rodolfo is not a son of the spouses that as an act of charity,
they took him in and took care of him. He is not related in
any way to the spouses
4. RTC dismissed the case. Ruled in favor of the respondent.
5. CA affirmed the RTC decision
Issue:
W/N the SSS E-1 form, a public document can establish filiation of
Rodolfo.
Ruling:
Yes. In De Jesus vs. Dizon, the Court held that the filiation of
legitimate children can also be established by an admission of
legitimate filiation in a public document or a private handwritten
and signed by the parent concerned. The due recognition is such
document is a consummated act of acknowledgement of the child,
and no further court action is required. Any authentic writing is
treated not just a ground for compulsory recognition; it is in itself a
voluntary recognition that does not require a separate action for
judicial approval. It also held that a child born during the marriage
of his parents, it must be presumed that such child is the legitimate
child of the spouses.
 Thus, it must be concluded that petitioner, who was born
during the marriage of his parents has sufficiently proved that he is
the legitimate child of spouses Alfredo and Candelaria Aguilar. The
SSS Form E-1 satisfies the requirement for proof of filiation in a
public document or a private handwritten instrument and
signed by the parent concerned.
The case should not have been so difficult for the petitioner if
he only procured his birth certificate from the NSO. Even if the
records in Bacolod were destroyed, such record would still be
found in NSO.
Finally, since Rodolfo has sufficiently proven that he is the
legitimate heir of the deceased spouses, the repsondent, Edna
Siasat has no right to inherit from her aunt Candelaria Siasat-
Aguilar’s estate, since succession pertains, in the first place, to the
descending direct line.
Article 174. Legitimate children shall have
the right:
(1) The bear the surnames of the father and
the mother, in conformity with the
provisions of the Civil Code on Surnames;
(2) To receive support from their parents,
their ascendants, and in proper cases,
their brothers and sisters, in conformity
with the provisions of this Code on
Support; and
(3) To be entitled to the legitime and other
successional rights granted to them by
the Civil Code.
What are the rights of legitimate children?
1. bear the surnames of the father and the mother
2. to receive support
‣ comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the
family
‣ future support cannot be renounced; cannot be subject of
compromise (Art. 2035, NCC)
3. to be entitled to the legitime and other successional rights
‣ future legitime cannot also be renounced or be the subject
of compromise
___________________________________________________
Chapter 3
ILLEGITIMATE CHILDREN
Article 175. Illegitimate children may
establish their illegitimate filiation in the same
way and on the same evidence as legitimate
children.
The action must be brought within the
same period specified in Article 173, except
when the action is based on the second
paragraph of Article 172, in which case the
action may be brought during the lifetime of
the alleged parent.
Illegitimate Children
➡ if used proofs under the 1st paragraph = has his or her
lifetime to file an action to claim illegitimacy; even after the
death of the parent (if passed on to the heirs if died during
minority or because of insanity: 5 years)
➡ if used proods under the 2nd paragraph = can only bring the
action within the lifetime of the parent
Solinap vs. Locsin, Jr.
birth certificate from CRG given more weight; birth certificate from
the LCR of Iloilo was falsified
August 28, 2002
Facts:
This case involves the issue of whether Juan Locsin is a child
of the deceased, Juan “Jhonny” Locsin Sr. Respondent filed a
petition before the RTC for the administration of the estate of his
alleged father. This was opposed by the heirs of the brother and the
heirs of the sister of the deceased.
To prove that he is indeed the son of the deceased, he
presented the following evidences:
(1) machine copy of his birth certificate - that the father was the
informant and it is with his signature
(2) presented Rosita Vencer of the LCR of Iloilo
(3) “family” photos with his father’s dead body — alleging that they
have been allowed to see Jhonny and was recognized by the
family
On the other hand, the petitioners present the Certified True
Copy of the Birth Certificate from the Civil Registry General. They
aver that the same was reported by his mother and does not
contain any signature of the deceased. Moreover, the birth
certificate presented by the Respondent is falsified as corroborated
by a handwriting expert and the conflicting dates thereon.
RTC found that the proofs presented by the respondent were
sufficient to prove his illegitimate filiation.
CA affirmed the RTC ruling.
Issue:
W/N Juan Locsin Jr. is the illegitimate son of Jhonny Locsin Sr.
Ruling:
No. The birth certificate presented by the petitioner heirs was
given more weight as it came from the Civil Registry General. It has
all the badges of nullity. Without doubt, the authentic copy on file in
that office was removed and substituted with a falsified Certificate of
Live Birth. Therefore, he has failed to prove his filiation with the
deceased and thus not an interested party entitled to the issuance
of letters of administration.
The birth certificate presented by Locsin Jr., was tampered.
Access to local civil registries are easier compared to the civil
registry general. The testimony of Vencer explaining with regard to
the suspicious characteristic of the bound volume where the
certificate was found, was not convincing. Moreover, she was not
the LCR 37 or 38 years ago. She was not able to explain why the
back page of the bound volume was torn among others.
When entries in the certificate of live birth recorded in the LCR
vary from those appearing in the copy transmitted to the Civil
Registry General, pursuant to the Civil Registry Law, the variance
has to be clarified in more persuasive and rational manner. The
documents bound into one volume are original copies while the
birth certificate of Locsin Jr is a carbon copy.
A copy of the document sent by the LCR to the CRG should be
identical in form and in substance. The certified true copy shows
that the mother of Locsin, Jr. was the one made it. The signature of
the deceased was not found in the birth certificate. Such evidence
is not sufficient proof to establish paternity and filiation.

Bernabe vs. Alejo
Fiscal inanakan ang secretary; when should the action for
recognition prescribe?
January 21, 2002
Facts:
The late fiscal Bernabe fathered a child with his secretary
Carolina Alejo. The latter filed a complaint that Adrian be declared
and acknowledged as an illegitimate child of Fiscal Bernabe and
thus entitled to Bernabe’s estate which is not being held by
Ernestina as the sole surviving heir.
RTC dismissed the petition. The action for recognition should
have been filed during the lifetime of the alleged father to give him
the opportunity to either affirm or deny the child’s filiation.
CA reversed the petition. In the interest of justice, Adrian
should be allowed to prove that he was the illegitimate son of Fiscal
Bernabe. The boy was born during the effectivity of the Civil Code
and thus his rights are governed by the same. Civil Code allows the
child to file an action for recognition within 4 years after the child
has attained the age of majority. The enactment of the Family Code
did not take away that right.
Bernabe files before the SC.
Issue:
W/N Adrian can file an action for recognition against petitioner
Bernabe
Ruling:
Yes. It is a substantive law as distinguished from a procedural
law where rights cannot attach to or arise from. Article 285 of the
Civil Code is a substantive law, as it gives Adrian the right to
file his petition for recognition within 4 years from attaining
majority age. Therefore, the FC cannot impair or take Adrian’s
right to file an action for recognition, because that right had
already vested prior to its enactment
Illegitimate children who were still minors at the time of the
Family Code took effect and whose putative parent died during their
minority are thus given the right to seek recognition under Article
285 of the Civil Code for a period up to 4 years from attaining
majority age. This vested right was no impaired or taken away by
the passage of the Family Code.
Indeed, our overriding consideration is to protect the vested
rights of minors who could not have filed suit, on their own, during
the lifetime of their putative parents. As respondent aptly points out
in his Memorandum, the State as parens patriae should protect a
minor’s right. Born in 1981, Adrian was only 7 years old when the
Family Code took effect and only 12 when his alleged father died in
1993. The minor must be given his day in court.
Dela Rosa vs. Vda de Damian
Is Guillerma an illegitimate child of Guillermo? No. Failed to raise it
during Guillermo’s lifetime
January 27, 2006
Facts:
This case involves the estate of Josefa and Guillermo Rustia.
The main issue of this case is who are the parties who are entitled to
inherit from the spouses. Since Josefa died first, who will inherit from
her? Who will inherit from Guillermo?
Guillerma Rustia, who claims to be an illegitimate child of the
Guillermo with another woman, files for the petition for the letters of
administration. This was opposed by the brothers and sisters of
Josefa, their children and their children. She sought recognition on
2 grounds: compulsory through the open and continuous
possession of the status of an illegitimate child and second,
voluntary recognition through authentic writing.
The ampun-ampunan of the couple also claim to be entitled to
the inheritance.
Issue:
W/N Guillerma Rustia is the illegitimate child of Guillermo.
Ruling:
No. Although there was no doubt that she possessed the status
of an illegitimate child from her birth until the death of her putative
father, she was not able to use the ground to compel
acknowledgement through the courts. The law allows this be done
only during the lifetime of the child or the lifetime of the parent.
Thus, the action to compel the putative father to acknowledge such
illegitimate child has already prescribed upon the death of
Guillermo.
The claim for voluntary recognition must also fail. An authentic
writing, for purposes of voluntary recognition, is understood as a
genuine or indubitable writing of the parent. This includes a public
instrument or a private writing admitted by the father to be his. The
report card of Guillerma does not qualify as authentic writings
under the new Civil Code as it did not contain the signature of
Guillermo. The fact that his name appears there as her parent/
guardian holds no weight since he had no participation in the
preparation. The newspaper clipping of the obituary of Josefa
allegedly prepared by Guillermo which states that Guillerma is
his illegitimate child cannot also pass. What would pass is the
original manuscript of the notice, in the handwriting of
Guillermo himself and signed by him.
The ampun-ampunan of the spouses are also not entitled to
any inheritance as they were not validly adopted. Only an adoption
made through the court, or in pursuance with the procedure laid
down by law is valid in jurisdiction.
SC ruled that the lawful heirs of Guillermo Rustia are the remaining
claimants, consisting of his sisters, nieces and nephews.
Verceles vs. Posada
mayor had an affair with his casual employee; love letter was
considered as a private handwritten document amounting to an
acknowledgement that Posada’s child is his illegitimate child
April 27, 2007
Facts:
Posada and Mayor of Pandan, Teofisto Verceles, had an affair
after the former had succumbed to the lust of the latter.
Consequently, when she missed her period, she wrote to her
paramour saying that she fears that she is pregnant. Mayor replies
saying that she should be glad if true. She went to Manila and there
she gave birth to Verna Aiza Posada.
The mother of Clarissa filed a complaint for damages coupled
with support against the petitioner. The RTC ordered petitioner to
give a monthly support of Php2,000 to the Verna Aiza and
Php30,000 for moral damages and Php30,000 for exemplary
damages and Php 10,000 for attorney’s fees.
CA affirmed the judgement and modified the party to whom the
Mayor should give moral and exemplary damages to. Php15,000 for
moral and Php15,000 for exemplary to Clarissa and Php15,000 for
moral and Php15,000 for exemplary to her parents.
Petitioner brings the case to the SC.
Held:
W/N paternity and filiation can be resolved in an action for
damages with support pendente lite
Yes. The caption is not determinative of the nature of a
pleading. What is determinative is the averments in the petition and
the character of the relief sought, that are controlling.
In this case, the averments of Clarissa clearly establish a case
for recognition of paternity.
W/N filiation of Verne Aiza as the illegitimate child of Verceles
was proven
 Any authentic writing is treated not just a ground for
compulsory recognition; it is in itself a voluntary recognition that
does not require a separate action for judicial approval.
The letters of petitioner are declarations that lead nowhere
but to the conclusion that he sired Verna Aiza. These are private
handwritten instruments of petitioner which established Verna
Aiza’s filiation under Article 172(2) of the Family Code. In
addition, the array of evidence presented by respondents, the
dates, letters, pictures and testimonies, to us,are convincing
and irrefutable evidence that Verna Aiza is, indeed, petitioner’s
illegitimate child.
Petitioner also admitted in his memorandum that he had an
affair with Clarissa, the exchange of love letters and support he
gave during Clarissa’s pregnancy.
W/N respondents are entitled to damages
No damages. Clarissa was already an adult at the time she had
an affair with the petitioner. There is also nothing in jurisprudence or
in law that entitles the parents of a consenting adult who begets a
love child to damages.
Dela Cruz vs. Gracia
unsigned handwritten document given weight by the SC as it was
corroborated by other evidences and was not disputed by any
party; father died 2 months prior to the birth of the child
July 31, 2009
Facts:
1. Dominique and Jenie lived in together in Dominique’s parents’
house with out the benefit of marriage
2. Eventually Jenie got pregnant. However, Dominique died 2
months prior to to the birth of the child.
3. Jenie applied before the Office of the City Registrar of Antipolo
the Certificate of Live Birth of her child together with:
a) Affidavit to Use the Surname of the Father
b) A b o v e d o c u m e n t w a s a t t a c h e d w i t h t h e
“AUTOBIOGRAPHY” which Dominique wrote during his
lifetime, in his handwrting: “As of right now I have my wife
named Jenie del Cruz, we met each other in our hometown,
Tereza, Rizal.. Then we fell in love with each other, then we
became good couples, as of right now she is pregnant and
for that we live together in our house now.”
c) Affidavit of Acknowledgement - executed by the father of
Dominique
Both affidavits attested that during the lifetime of Dominique, he
had continuously acknowledged his unborn child, and that his
paternity had never been questioned.
4. Gracia however denied the application because the child was
born out of wedlock
5. Jenie filed a complaint ffor injunction/registration of name
against respondent before the RTC. She invoked Article 176 of
the FC amended by RA 9255 which provides that illegitimate
children may use the surname of the father if they are expressly
recognized through the record of birth appearing in the civil
register, or when an admission in a public document or private
handwritten instrument. Jenie maintained that the
Autobiography executed by Dominique constitutes an
admission of paternity in a “private handwritten instrument”
within the contemplation of the above-quoted provision of law.
6. RTC dismissed the petition
- autobiography was unsigned and did not contain any
express recognition of paternity
Issue: W/N the unsigned handwritted documents of the deceased
father of minor Christian Dela Cruz can be considered as a
recognition of paternity in a “private handwritten instrument” within
the contemplation of Article 176 of the FC as amended by 9255.
Ruling:
Petition Granted.
Yes. In the case at bar, there is no dispute that the earlier
quoted statements in Dominique’s Autobiography have been
made and written by him. Taken together with the other relevant
facts extant herein — that Dominique, during his lifetime, and Jenie
were living together as common-law spouses for several months in
2005 at his parents’ house. She was pregnant when Dominique
died and about two months later his death, Jenie gave birth to he
child — they sufficiently established that the child of Jenie is
Dominique’s.
SC Rules on the requirement of affixing the signature of the
acknowledging parent:
1. private handwritten instrument = lone evidence = must be
signed by the acknowledging parent
2. private handwritten instrument = corroborated or
accompanied by other relevant and competent evidence, if
suffices that the claim of filiation therein be shown to have
been made and handwritten by the acknowledging parent as
it merely corroborative of such other evidence.
Our laws instruct that the welfare of the child shall be the
paramount consideration in resolving questions affecting him
pursuant to Article 3(1) of the UN Convention on the Rights of a
Child of which the Philippines is a signatory.
It is thus the policy of the Family Code to liberalize the rule on
the investigation of the paternity and filiation of children, specially of
illegitimate chidren. Too, the State as parens patriae affords special
protection to children from abuse, exploitation and other conditions
prejudicial to their development.
Nepomuceno vs. Lopez
Arhbencel is not the illegitimate child of Benhur; the handwritten
document stating the agreement to support is not in the ambit of Art
172 (2) as it is does not contain anything about filiation.
March 18, 2010
Facts:
1. Child, Arhbencel, was begotten out of an extramarital affair of
Benhur with Araceli.
2. He refused to sign the birth certificate of Arhbencel,
nonetheless, Araceli was able to obtain a “private handwritten
document”
3. She goes to the court for her child to be recognized as the
illegitimate child of the petitioner and that support be given.
4. Benhur however, claimed that he was forced to make that
handwritten document.
5. RTC granted Arhbencel support pendente lite in the amount of
Php 3,000/month
6. RTC dismissed the case for insufficiency of evidence
- Certificate of Birth was not a prima facie evidence of her
filiation to petitioner as it did not bear petitioner’s signature
- petitioner’s handwritten undertaking to provide support did
not contain an acknowledgement that Arhbencel is his
child
- there was no showing that petitioner performed any overt
act of acknowledgement of Arhbencel as his illegitimate
child after the execution of the note
7. CA reversed the trial courts ruling
- payment of hospital bills when she gave birth
- commitment to give support
- petitioner acted in bad faith in omitting the statement of
paternity in his handwritten undertaking
- Php 8000/month is reasonable amount for support
Issue:
W/N the handwritten undertaking which does not have an
expressed acknowledgement of filiation is within the contemplation
of Article 176 as amended by RA 9255
Ruling:
Arhbencel’s demand for support, being based on her claim of
filiation to petitioner as his illegitimate daughter, falls under Article
195(4) [Parents and their illegimate children obliged to support
each other]. As such, her entitlement to support from petitioner is
dependent on the determination of her filiation.
The handwritten undertaking does not contain anything
about filiation. It is therefore not within the ambit of Article 172(2)
vis-a-vis Article 175 of the Family Code which admits as competent
evidence of illegimate filiation an admission of filiation in a private
handwritten instrument signed by the parent concerned.
The note cannot be accorded the same weight as the notarial
agreement to support the child referred to in Herrera, for it is not
even notarized. In Herrera, it instructs that the notarial agreement
must be accompanied by the putative father’s admission of filiation
to be an acceptable evidence of filiation. Here, however, not only
has petitioner not admitted filiation through acts. He has
consistently denied it.
The birth certificate has no probative value as it was not signed
by the father.
The Court is mindful that the best interests of the child involving
paternity and filiation should be advanced. It is, however, just as
mindful of the disturbance that unfounded paternity suits cause to
the privacy and peace of the putative father.
Gotardo vs. Buling
the accounting supervisor had an affair with a casual employee; did
not give any evidence but only presented testimony of Rodulfo and
her own; totality of evidence shows that Gliffze is their child;
petitioner was not able to substantiate his allegations of
respondent’s infidelity
August 15, 2012
1. Divina Buling is a casual employee in a bank where Gotardo is
an accounting supervisor.
2. The two had sexual relations as they rented a room in a
boarding house which was owned by Rodulfo
3. Divina consequently became pregnant and the wedding plans
ensued. However, Gotardo backed out. She filed a complaint for
damages against the petitioner for breach of promise to marry.
They amicably settled the case. Later on, Divina gave birth to
Gliffze.
4. She now files a complaint for the compulsory recognition and
support pendente lite claiming that Gliffze is his son.
- Divina testified
- Rodulfo as witness
5. Gotardo denied the paternity
6. RTC granted the respondent’s motion for support pendente lite
in the amount of Php2,000
7. RTC dismissed the case for insufficiency of evidence
1. ordered that the support pendente lite be returned
8. CA reversed the RTC ruling
1. gave credence to the testimony of Divina
2. reinstated the Php2,000 support/month
3. ordered petitioner to recognize his son
Issue:
W/N CA erred in its ruling.
Ruling:
No. In Herrera vs. Alba, the Court stressed that there are 4
significant procedural aspects of a traditional paternity action
that parties have to face. (1) a prima facie case - wherein the
woman declares and such declaration is corroborated by proof, in
such case the father has the burden of proof.
(2) affirmative defenses, (3) presumption of legitimacy and (4)
physical resemblance between the putative father and the child.
The putative father has 2 available defenses (1) incapability of
sexual relations with the mother due to either physical absence or
impotency; or (2) that the mother had sexual relations with other
men at the time of conception.
In this case, the respondent established a prima facie case
that the petitioner is the putative father of Gliffze through testimony
that she had been sexually involved only with one man, the
petitioner, at the time of her conception. This was corroborated by
the testimony of Rodulfo.
The petitioner did not deny that he did have sexual encounters
with Divina. He only stated that he did have such on a later date.
However, he failed to substantiate his allegations of infidelity and
insinuations of promiscuity. His allegations therefore cannot be
given credence for lack of evidenciary support.
Evidently, the totality of the repsondent’s testimony positively
and convincingly shows that no real inconsistency exists. The
respondent has consistenly asserted that she started sexual
relations with the petitioner sometime September 1993.
SC sustained the award of support of Php 2,000 per month.
Perla vs. Baring
Filiation must be established first before entitling Randy for support;
Mirasol failed to prove paternity
November 12, 2012
Facts:
1. Mirasol Baring and Antonio Perla lived in for 2 years without the
benefit of marriage
2. Randy is their lovechild
3. Antonio became a seaman and eventually abandoned them
4. Mirasol filed for a complaint for support
- Certificate of Live Birth
- Baptismal Certificate
- Randy would go to Antonio’s sister’s house and that he
called him Papa and that the latter promised to support
him
- Mirasol’s testimony
✓ Antonio and her supplied the information on the birth
certificate
✓ Erlinda supplied the date and place of the marriage
of the parents
- testimony of Aurora Dacay - neighbor
✓ knew of their relationship
✓ the mother of Antonio even tried to get Randy from
Mirasol
- testimony of Daisy, the daughter of the hilot
✓ it is known that Randy has no acknowledged father
5. Antonio however has his own family now and that he denies that
he ever lived in with Mirasol and he sought moral damages
- at that time he was studying in Iloilo
- he only came to Manila after he graduated
- denied having any relationship with Mirasol
- claimed that he had sexual intercourse with Mirasol only
once which happened in the Month of September or
October of 1981.
- only knew that he was the putative father when Mirasol
charged him with abandonment
6. RTC granted the petition to support Randy since Antonio
admitted that he had sex with Mirasol.
✓ support of Php 5,000/month
7. CA upheld the filiation based on the birth certificates;
highlighted the vacillation in the testimony of Antonio regarding
that number of times he had sex with Mirasol and concluded
that the same is a clear badge of his lack of candor — a good
reason to disregard his denial
Issue:
W/N lower courts ruled correctly to order petitioner to support
Randy
Ruling:
No. Filiation must first be established before Randy can be
entitled for support. A high standard of proof is required to
establish paternity and filiation. An order for support may
create unwholesome situation or may be an irritant to the family
or the lives of the parties so that it must be issued only if
paternity or filiation is established by clear and convincing
evidence.
Respondents failed to establish Randy’s illegitimate filiation to
Antonio.
Birth Ceritificate and Baptismal Certificate have no probative
value as they did not bear the signature of the father nor that it was
proved that the documents were prepared by him. There were also
unexplained discrepancies with regard to Antonio’s personal
circumstances. Most important, it was Mirasol who signed as
informant which she confirmed on the witness stand. Baptismal
Certificate can only serve as evidence of the administration of the
sacrament on the date specified but not on the veracity of the
entries with respect to the child’s paternity.
The circumstances stated in the testimony of Randy cannot be
considered as an open and continuous possession of the status
of an illegitimate child under the 2nd par. of Article 172(1). Such
possession must be evidence of manifestations of parental affection
and case, which cannot be attributed to pure charity. Must reveal
not only the conviction of paternity but also the apparent desire to
have an treat the child as such in all relations of society and in life,
not accidentally but continuously. The single instance that Antonio
allegedly hugged Randy and promised to support him cannot be
considered as proof of continuous possession of the status of a
child.
The father’s conduct towards his son must be spontaneous
and uninterrupted for this ground to exist. There are no other
acts of Antonio treating Randy as his son.
It was incumbent upon Mirasol to prove that she had sexual
intercourt with Antonio priod to the usual period of pregnancy or 9
months before the birth of Randy. The crucial period is during the
early part of the first quarter of 1983. However, nothing from
Mirasol’s testimony indicates that she had sexual intercourse with
Antonio during that time. She merely testified that she last met with
Antonio in 1983 but could not remember the particular month.
Antonio’s admissed of sexual intercouse with Mirasol does not
likewise by any means strengthen respondents’ theory that he
fathered Randy.
Order for Support has no basis.
Salas vs. Matsusalem
24 year old mothered a child to a 54 year old who pretended to be
widower; action for support; denied by the SC for insufficiency of
evidence
September 11, 2013
Facts:
1. Annabelle Matsusalem, 24 years old and Narciso Salas, 54
years old had an affair. Salas told Matsusalem that he was a
widower.
2. They lived in an apartment which was rented by Salas and the
latter shouldered all the expenses in the hospital when
Matsusalem gave birth to Christian Paulo Salas.
3. Salas purportedly gave support to Matsusalem however, this
ended when she refused the offer of Salas’s family to get the
child in exchange for some money for her to go abroad.
4. She files this complaint for Support in the RTC.
- petitioner knew about her child with the Italian
- petitioner promised to take care of her and marry her
- presented the testimony of Murillo, the owner of the
apartment who corroborated the claims of Matsusalem.
- presented the Birth certificate which did not have the
signature of petitioner
- Baptismal Certificate
- Pictures
- Statement of Account from Good Samaritan General
Hospital
5. Petitioner claims that he does not have relations with Annabelle
and that he only shouldered all the expenses for the sake of
charity; he denies that he is the father
6. RTC ruled in favor of the respondent, entitling Christian Paulo
the monthly support of Php2,000/month
7. CA affirmed the RTC ruling
- does not enjoy the benefit of the record of birth in the civil
registry which bears acknowledgement signed by Salas
- the fact was established by the testimony of Murrilo, the
owner of the apartment Salas rented for Matsusalem and
the child. Murillo saw the active support of Salas during
the labor of Matsusalem by massaging her belly, walking
with her in the hospital halls. It was only after Matsusalem
refused to take the offer of the family of Salas when they
stopped giving support.
- testimony of Murillo was never rebutted
Issue:
W/N the filiation of Christian Paulo was duly established.
Ruling:
(1) Birth Certificate - no signature of the father
(2) Baptismal Certificate were not given probative value. - no
signature of the father; was not proven that the putative father
had any hand in its preparation
(3) Photos - inconclusive evidence
(4) Statement of Account from Good Samaritan Hospital -
incompetent evidence because petitioner admitted that he
shouldered the expenses as an act of charity
(5) Handwritten Notes - not conclusive because it was not signed
by the putative father nor was there any admission of filiation
stated.
(6) Testimonies of witness - by themselves are not competent proof
of paternity
The totality of of respondent’s evidence failed to establish
Christian Paulo’s filiation to the petitioner.
This Court has ruled that a high standard of proof is required to
establish paternity and filiation.
Petitioner Salas had already died. Nonetheless, the action for
support having been filed in the RTC while the petitioner was still
alive is not barred under Article 175(2) of the Family Code. The
heirs may substitute for the deceased.
Article 176. Illegitimate children shall use the
surname and shall be under the parental
authority of their mother, and shall be entitled
to support in conformity with this Code.
However, illegitimate children may use the
surname of their father if their filiation has
been expressly recognized by the father
through the record of birth appearing in the
civil register, or when an admission in a
public document or private handwritten
instrument is made by the father. Provided,
the father has the right to institute an action
before the regular courts to prove non-
filiation during lifetime. The legitime of each
illegitimate child shall consist of one-half of
the legitime of a legitimate child. (as amended by
RA 9255)
 (4) Ordered Grace to surrender the persons in custody To conclude, the use of the word, “shall” in the IRR of RA 9255
(5) ordering Grace to desist from bringing the kids outside the is of no moment. The clear, unambiguous and unequivocal use
Legitimate Child Illegitimate Child
country of “may” in Article 176 rendering the use of an illegitimate
(6) ordered the parties to give and share support of the minor father’s surname discretionary controls, and illegitimate
born inside a valid marriage born outside a valid marriage or a
void marriage (except 36 and 53) children Andre and Jerard in the amount of Php30000/ children are given the choice on the surname by which they will
month be known.
shall bear the last names of the shall bear mother’s last name 6. Grace filed an appeal with the CA The children also submitted letters that they do not want to
father and the mother unless recognized by the father in 7. CA modified the decision of the RTC have the surname, Antonio.
which case, the child may carry ‣ Grace has full and sole custody over her children The SC remanded the case to the RTC to determine the
the last name of the latter ‣ Antonio has visitation rights surname to be chosen by the children Andre and Jerard.
entitled to support entitled to support (exception will CA reasons that not withstanding the father’s recognition of his
be discussed later on) children, the mother cannot be deprived of her sole parental
custody over them absent the most compelling of reasons. Chapter 4
legitime legitime: will get 1/2 of the share The legal consequence of the recognition made by respondent LEGITIMATED CHILDREN
of the legitimate child Antonio that he is the father of the minors, taken in conjunction with
the “best-interest of the child” clause compels the use by the
will be under the joint parental will be under the parental
children of the surname “Antonio.”
authority of the father and the authority and custody of the
mother mother (unless the child lives with Issue: Article 177. Only children conceived and
the father and mother then in W/N the recognition of the father of his illegitimate children means born outside of wedlock of parents who, at
such case, both parents shall the automatic use of the father’s surname.
exercise parental authority) Ruling:
the time of the conception of the former, were
NO. not disqualified by any impediment to marry
Grande vs. Antonio
Article 176 as amended by RA 9255 states “Illegitimate each other, or were so disqualified only
children shall use the surname of their mother and shall be under
February 18, 2014 because either or both of them were below
parental authority of their mother, and shall be entitled to support in
Facts:
conformity of this Code. However, illegitimate children may use the 18 years of age, may be legitimated.
1. Grace Grande and Patricio Antonio had extra marital affairs and
surname of their father if their filiation has been expressly
cohabited with each other.
recognized by their father through the record of birth appearing in
2. Out of this extra-marital affair, they had two sons: Andre Lewis
the civil register, or when an admission in a public document or Legitimation, concept
and Jerard Patrick
private handwritten instrument is made by the father…” It is a remedy or process by means of which those who in fact were
3. Grande left for the States with her kids
It is clear that the general rule is that an illegitimate child shall not born in wedlock and should therefore be ordinarily illegitimate
4. Respondent Antonio wanted his illegitimate children to bear his
use the surname of his or her mother. The exception is that the child children, are by fiction, considered legitimate, it being supposed
surname as well as the parental authority. He files a petition for
may use the father’s surname upon due recognition. that they were born when their parents were already validly married.
Judicial Approval of Recognition with Prayer to take Parental
It may be argued that the IRR of 9255 states in such mandatory
Authority, Parental Physical Custody, Correction/Change of
terms that the child’s surname shall be changed to that of the For a child to be legitimated, the following requisites must
Surname of Minors and for the Issuance of Writ of Preliminary
father’s. It is a hornbook rule that administrative issue cannot amend concur:
Injunction before the RTC appending notarized deed fo
a legislative act. It also has been held by the SC that IRRs of a law 1. The child must have been conceived and born outside of
voluntary recognition of paternity of the children.
cannot extent the law or expand its coverage, as the power to do so wedlock;
5. RTC decided in favor of the respondent.
rests in the Legislature and not in administrative officials. The IRRs 2. The child’s parents at the time of the former’s conception, were
(1) ordered the Office of the City Registrar to correct/change
must be disregarded as the constitution itself provides that Rules of not disqualified by any impediment to marry each other; and
the surnames of Andre and Jerard to Antonio
procedure of special courts and quasi-judicial bodies shall remain 3. The subsequent valid marriage of the parents (Art. 178, FC)
(2) that parental authority be exercised jointly by Patricio and
effective unless disapproved by the SC. Thus, we exercise this
Grace over the minor children
power in voiding the IRR of RA 9255 insofar as it provides for the
(3) Granting Antonio the primary right and immediate custody
mandatory use by illegitimate children of their father’s surname
of the children from Monday until Friday evening and to
upon the latter’s recognition of his paternity.
Grace from Saturday to Sunday evening

Article 178. Legitimation shall take place by a
subsequent valid marriage between parents.
The annulment of a voidable marriage shall
not affect the legitimation.
NCC: Article 271 provides that the child must be first recognized by
the parents before or after the celebration of the marriage or had
been declared first as natural child by final judgement before there
can be legitimation by subsequent marriage
FC: The marriage ipso facto renders the child legitimated
Not all children can be legitimated
‣ only those children who fit into the definition of natural child
proper under the Civil Code (Article 259, NCC) can be
legitimized; legitimization is not a right to buy but only a privilege
granted to natural children proper
‣ De Santos vs. Angeles - Bigamous children cannot be
legitimated both under the Civil Code and the Family Code
‣ Ramirez vs. Gmur - Legitimization is limited to natural children
and cannot include those born of adulterous relations.
Why is Legitimization Limited?
a) the rationale of legitimization would be destroyed
b) It would be unfair to the legitimate children in terms of
successional rights
c) There will be the problem of public scandal, unless social mores
change;
d) It is too violated to grant the privilege of legitimization to
adulterous children as it will destroy the sanctity of marriage;
e) It will be very scandalous, especially if the parents marry many
years after the birth of the child
“Any impediment”
‣ It refers to all causes and circumstances which will render a
marriage void such as prior existing marriage, close blood
relationship, contravention of public policy and other causes
under Articles 35, 36, and 53 of the FC
‣ exception: if the parents are below 18 years old, their
subsequent marriage will legitimize their child
Reckoning Point = time of the conception and not of the child’s
birth which is the determining point in legitimation by subsequent Article 181. The legitimation of children who
marriage
General Rule: If the marriage is void ab initio, the children out of
died before the celebration of the marriage
that marriage couldn’t have been legitimate. shall benefit their descendants.
Exception: marriages that are void because of Articles 36 and 53,
pursuant to Article 54, FC (where the children are legitimate)
Article 182. Legitimation may be impugned
only by those who are prejudiced in their
Article 179. Legitimated children shall enjoy rights, within five years from the time their
the same rights as legitimate children. cause of action accrues.
What are the rights of legitimate children?
1. bear the surnames of the father and the mother Grounds for Impugnation
2. to receive support 1. The child is not the child of the parents
‣ comprises everything indispensable for sustenance, 2. The child is not qualified as when his parents were suffering
dwelling, clothing, medical attendance, education and from certain impediments at the time of the child’s conception;
transportation, in keeping with the financial capacity of the and
family 3. The subsequent marriage of the parents is void.
‣ future support cannot be renounced; cannot be subject of
compromise _________________________________________________________
3. to be entitled to the legitime and other successional rights
‣ future legitime cannot also be renounced or be the subject
of compromise
Article 180. The effects of legitimation shall
retroact to the time of the child’s birth.
Report of the Code Commission - When the legitimation takes
place by the subsequent marriage of the parents of the child, the
effects thereof shall retroact to the time of the latter’s birth. This is for
the benefit and protection of the child who is innocent. The parents
might not marry until after the lapse of many years.
TITLE VII
ADOPTION
What is Adoption?
It is a juridical act creating a relationship between two persons,
whether related or not, whereby a person (adopted) is raised to the
status of a legitimate child of the other (adopter).
What are the adoption laws that were passed?
1. Old Civil Law = Articles 173-180
2. NCC = Articles 334-348
3. PD 603 - The child and youth welfare code
4. EO 91
5. Family Code
6. Inter-Country Adoption Law RA 8043
7. Domestic Adoption Act of 1998 (RA 8552)
What is the purpose of adoption?
Daoang vs. Municipal Judge of San Nicolas, Ilocos Norte - The
present tendency of adoption is geared more toward the promotion
of the welfare of the child and the enhancement of his or her
opportunities for a useful and happy life.
Malkinson vs. Agrava - Adoption statutes, being humane and
saliutary, hold the interest and welfare of the child to be of
paramount consideration and are designed to provide homes,
parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family in the
person of the adopter as well as to allow childless couples or
persons to experience the joys of parenthood and legally give them
a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should be
sustianed to promote and fulfill these noble and compassionate
objectives of the law.
Which law will govern an adoption proceeding?
The law that will govern will be that one which was effective at the
time of the filing of the case. (RP vs. Miller)
‣ aliens were allowed to adopt pursuant to PD 603 which was
repealed in the FC; the Court still allowed the adoption to
prosper because aliens acquired a vested right which could
not be affected by the subsequent enactment of a new law
disqualifying him
RP vs. Miller - Adoption statutes, being humane and salutary, hold
the interests and welfare of the child to be of paramount
consideration. They are designed to provide homes, parental care
and education for unfortunate, needy or orphaned children and give
them the protection of society and family in the person of the
adopter, as well as childless couples or persons to experience the
joy of parenthood and give them legally a child in the person of the
adopted for the manifestation of their natural parent instincts. Every
reasonable intendment should be sustained to promote and fulfill
these noble and compassionate objectives of the law.
RA 8552
AN ACT ESTABLISHING THE RULES AND POLICIES ON THE
DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES
ARTICLE I
GENERAL PROVISIONS
Section 1. Short Title. – This Act shall be known as the "Domestic
Adoption Act of 1998."
Section 2. Declaration of Policies. – (a) It is hereby declared the
policy of the State to ensure that every child remains under the care
and custody of his/her parent(s) and be provided with love, care,
understanding and security towards the full and harmonious
development of his/her personality. Only when such efforts prove
insufficient and no appropriate placement or adoption within the
child's extended family is available shall adoption by an unrelated
person be considered.
(b) In all matters relating to the care, custody and adoption of a
child, his/her interest shall be the paramount consideration in
accordance with the tenets set forth in the United Nations (UN)
Convention on the Rights of the Child; UN Declaration on Social and
Legal Principles Relating to the Protection and Welfare of Children
with Special Reference to Foster Placement and Adoption,
Nationally and Internationally; and the Hague Convention on the
Protection of Children and Cooperation in Respect of Intercountry
Adoption. Toward this end, the State shall provide alternative
protection and assistance through foster care or adoption for every
child who is neglected, orphaned, or abandoned.
(c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from making hurried
decisions to relinquish his/her parental authority over his/her
child;
(ii) Prevent the child from unnecessary separation from his/her
biological parent(s);
(iii) Protect adoptive parent(s) from attempts to disturb his/her
parental authority and custody over his/her adopted child.
Any voluntary or involuntary termination of parental authority
shall be administratively or judicially declared so as to establish
the status of the child as "legally available for adoption" and his/
her custody transferred to the Department of Social Welfare and
Development or to any duly licensed and accredited child-
placing or child-caring agency, which entity shall be authorized
to take steps for the permanent placement of the child;
(iv) Conduct public information and educational campaigns to
promote a positive environment for adoption;
(v) Ensure that sufficient capacity exists within government and
private sector agencies to handle adoption inquiries, process
domestic adoption applications, and offer adoption-related
services including, but not limited to, parent preparation and
post-adoption education and counseling; and
(vi) Encourage domestic adoption so as to preserve the child's
identity and culture in his/her native land, and only when this is
not available shall intercountry adoption be considered as a last
resort.
Section 3. Definition of Terms. – For purposes of this Act, the
following terms shall be defined as:
(a) "Child" is a person below eighteen (18) years of age.
(b) "A child legally available for adoption" refers to a child who has
been voluntarily or involuntarily committed to the Department or to a
duly licensed and accredited child-placing or child-caring agency,
freed of the parental authority of his/her biological parent(s) or
guardian or adopter(s) in case of rescission of adoption.
(c) "Voluntarily committed child" is one whose parent(s) knowingly
and willingly relinquishes parental authority to the Department.
(d) "Involuntarily committed child" is one whose parent(s), known or
unknown, has been permanently and judicially deprived of parental
authority due to abandonment; substantial, continuous, or repeated
neglect; abuse; or incompetence to discharge parental
responsibilities.
(e) "Abandoned child" refers to one who has no proper parental
care or guardianship or whose parent(s) has deserted him/her for a
period of at least six (6) continuous months and has been judicially
declared as such.
(f) "Supervised trial custody" is a period of time within which a social
worker oversees the adjustment and emotional readiness of both
adopter(s) and adoptee in stabilizing their filial relationship.
(g) "Department" refers to the Department of Social Welfare and
Development.
(h) "Child-placing agency" is a duly licensed and accredited agency
by the Department to provide comprehensive child welfare services
including, but not limited to, receiving applications for adoption,
evaluating the prospective adoptive parents, and preparing the
adoption home study.
(i) "Child-caring agency" is a duly licensed and accredited agency
by the Department that provides twenty four (24)-hour residential
care services for abandoned, orphaned, neglected, or voluntarily
committed children.
(j) "Simulation of birth" is the tampering of the civil registry making it
appear in the birth records that a certain child was born to a person
who is not his/her biological mother, causing such child to lose his/
her true identity and status.
________
Adoption is a Statutory Creation
‣ The law must be strictly complied with in the sense that the
mandatory requirements must all be present
‣ Lazatin vs. Campos - A child by adoption cannot inherit from
the parent by adoption unless the act of adoption has been
done in strict accord with the statute. Until this is done, no
rights are acquired by the child and neither the supposed
adopting parents or adopted child could be bound thereby.
The burden of proof in establishing adoption is upon the
person claiming such relationship. He must prove compliance
with the statutes relating to adoption in the jurisdiction where
the adoption occured.
‣ If the mandatory requirements are present but there are only
irregularities, substantial compliance of the mandatory
requirements is enough
➡ Santos vs. Aranzanso - Although as against the interest of
the child, the proceeding must be strictly in accordance
with the statute, there is a tendency on the part of the
courts, however, where the adoption has been fully
consummated, to construe the statute with a reasonable
degree of liberality, to the end that the assumed relationship
and the intention of the parties be upheld, particularly as
against strangers to the proceedings collaterally attacking
them.
➡ RP vs. CA and Zenaida Bobiles - In determining whether or
not to set aside the decree of adoption, the interest and
welfare of the child are of primary and paramount
consideration. The welfare of the child is of paramount
consideration in proceedings involving its custody and
the propriety of its adoption by another, and the courts
to which the application for adoption is made is
charged with the duty of protecting the child and its
interests and, to bring those interest fully before it, it
has authority to make rules to accomplish that end.
Ordinarily, the approval of the adoption rests in the
sound discretion of the Court.
ARTICLE II
PRE-ADOPTION SERVICES
Section 4. Counseling Service. – The Department shall provide the
services of licensed social workers to the following:
(a) Biological Parent(s) – Counseling shall be provided to the
parent(s) before and after the birth of his/her child. No binding
commitment to an adoption plan shall be permitted before the birth
of his/her child. A period of six (6) months shall be allowed for the
biological parent(s) to reconsider any decision to relinquish his/her
child for adoption before the decision becomes irrevocable.
Counseling and rehabilitation services shall also be offered to the
biological parent(s) after he/she has relinquished his/her child for
adoption.
Steps shall be taken by the Department to ensure that no hurried
decisions are made and all alternatives for the child's future and the
implications of each alternative have been provided.
(b) Prospective Adoptive Parent(s) – Counseling sessions, adoption
fora and seminars, among others, shall be provided to prospective
adoptive parent(s) to resolve possible adoption issues and to
prepare him/her for effective parenting.
(c) Prospective Adoptee – Counseling sessions shall be provided to
ensure that he/she understands the nature and effects of adoption
and is able to express his/her views on adoption in accordance with
his/her age and level of maturity.
Section 5. Location of Unknown Parent(s). – It shall be the duty of
the Department or the child-placing or child-caring agency which
has custody of the child to exert all efforts to locate his/her unknown
biological parent(s). If such efforts fail, the child shall be registered
as a foundling and subsequently be the subject of legal
proceedings where he/she shall be declared abandoned.
Section 6. Support Services. – The Department shall develop a pre-
adoption program which shall include, among others, the above
mentioned services.
______
Phases of Adoption
(1) administrative phase
‣ DSWD issues a Certification that a child is legally
available for adoption RA 9523
(2) judicial phase
‣ done by the proper Family Court or the RTC (in places
where there are no Family Courts), which will finally issue
the decree
RA 9523
AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF
SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE
A "CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A
PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING
FOR THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT
NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION
ACT OF 1998, REPUBLIC ACT NO. 8043, OTHERWISE KNOWN
AS THE INTER-COUNTRY ADOPTION ACT OF 1995,
PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE
CHILD AND YOUTH WELFARE CODE, AND FOR OTHER
PURPOSES
Section 1. Declaration of Policy. – It is hereby declared the policy of
the State that alternative protection and assistance shall be afforded
to every child who is abandoned, surrendered, or neglected. In this
regard, the State shall extend such assistance in the most
expeditious manner in the interest of full emotional and social
development of the abandoned, surrendered, or neglected child.
It is hereby recognized that administrative processes under the
jurisdiction of the Department of Social Welfare and Development
for the declaration of a child legally available for adoption of
abandoned, surrendered, or neglected children are the most
expeditious proceedings for the best interest and welfare of the
child.
Section. 2. Definition of Terms. – As used in this Act, the following
terms shall mean:
(1) Department of Social Welfare and Development (DSWD) is the
agency charged to implement the provisions of this Act and shall
have the sole authority to issue the certification declaring a child
legally available for adoption.
(2) Child refers to a person below eighteen (18) years of age or a
person over eighteen (18) years of age but is unable to fully take
care of him/herself or protect himself/herself from abuse, neglect,
cruelty, exploitation, or discrimination because of physical or mental
disability or condition.
(3) Abandoned Child refers to a child who has no proper parental
care or guardianship, or whose parent(s) have deserted him/her for
a period of at least three (3) continuous months, which includes a
founding.
(4) Neglected Child refers to a child whose basic needs have been
deliberately unattended or inadequately attended within a period of
three (3) continuous months. Neglect may occur in two (2) ways:
(a) There is physical neglect when the child is malnourished, ill-
clad, and without proper shelter. A child is unattended when left
by himself/herself without proper provisions and/or without
proper supervision.
(b) There is emotional neglect when the child is maltreated,
raped, seduced, exploited, overworked, or made to work under
conditions not conducive to good health; or is made to beg in the
streets or public places; or when children are in moral danger, or
exposed to gambling, prostitution, and other vices.
(5) Child Legally Available for Adoption refers to a child in whose
favor a certification was issued by the DSWD that he/she is legally
available for adoption after the fact of abandonment or neglect has
been proven through the submission of pertinent documents, or one
who was voluntarily committed by his/her parent(s) or legal
guardian.
(6) Voluntarily Committed Child is one whose parent(s) or legal
guardian knowingly and willingly relinquished parental authority to
the DSWD or any duly accredited child-placement or child-caring
agency or institution.
(7) Child-caring agency or institution refers to a private non-profit or
government agency duly accredited by the DSWD that provides
twenty-four (24) hour residential care services for abandoned,
neglected, or voluntarily committed children.
(8) Child-placing agency or institution refers to a private non-profit
institution or government agency duly accredited by the DWSD that
receives and processes applicants to become foster or adoptive
parents and facilitate placement of children eligible for foster care
or adoption.
(9) Petitioner refers to the head or executive director of a licensed or
accredited child-caring or child-placing agency or institution
managed by the government, local government unit, non-
governmental organization, or provincial, city, or municipal Social
Welfare Development Officer who has actual custody of the minor
and who files a certification to declare such child legally available
for adoption, or, if the child is under the custody of any other
individual, the agency or institution does so with the consent of the
child's custodian.
(10) Secretary refers to the Secretary of the DSWD or his duly
authorized representative.
(11) Conspicuous Place shall refer to a place frequented by the
public, where by notice of the petition shall be posted for
information of any interested person.
(12) Social Case Study Report (SCSR) shall refer to a written report
of the result of an assessment conducted by a licensed social
worker as to the social-cultural economic condition, psychosocial
background, current functioning and facts of abandonment or
neglect of the child. The report shall also state the efforts of social
worker to locate the child's biological parents/relatives.
Section 3. Petition. – The petition shall be in the form of an affidavit,
subscribed and sworn to before any person authorized by law to
administer oaths. It shall contain facts necessary to establish the
merits of the petition and shall state the circumstances surrounding
the abandonment or neglect of the child.
The petition shall be supported by the following documents:
(1) Social Case Study Report made by the DSWD, local government
unit, licensed or accredited child-caring or child-placing agency or
institution charged with the custody of the child;
(2) Proof that efforts were made to locate the parent(s) or any known
relatives of the child. The following shall be considered sufficient:
(a) Written certification from a local or national radio or television
station that the case was aired on three (3) different occasions;
(b) Publication in one (1) newspaper of general circulation;
(c) Police report or barangay certification from the locality where
the child was found or a certified copy of a tracing report issued
by the Philippine National Red Cross (PNRC), National
Headquarters (NHQ), Social Service Division, which states that
despite due diligence, the child's parents could not be found;
and
(d) Returned registered mail to the last known address of the
parent(s) or known relatives, if any.
(3) Birth certificate, if available; and
(4) Recent photograph of the child and photograph of the child
upon abandonment or admission to the agency or institution.
Section 4. Procedure for the Filing of the Petition. – The petition
shall be filed in the regional office of the DSWD where the child was
found or abandoned.
The Regional Director shall examine the petition and its supporting
documents, if sufficient in form and substance and shall authorize
the posting of the notice of the petition conspicuous place for five
(5) consecutive days in the locality where the child was found.
The Regional Director shall act on the same and shall render a
recommendation not later than five (5) working days after the
completion of its posting. He/she shall transmit a copy of his/her
recommendation and records to the Office of the Secretary within
forty-eight (48) hours from the date of the recommendation.
Section 5. Declaration of Availability for Adoption. – Upon finding
merit in the petition, the Secretary shall issue a certification
declaring the child legally available for adoption within seven (7)
working days from receipt of the recommendation.
Said certification, by itself shall be the sole basis for the immediate
issuance by the local civil registrar of a foundling certificate. Within
seven (7) working days, the local civil registrar shall transmit the
founding certificate to the National Statistic Office (NSO).
Section 6. Appeal. – The decision of the Secretary shall be
appealable to the Court of Appeals within five (5) days from receipt
of the decision by the petitioner, otherwise the same shall be final
and executory.
Section 7. Declaration of Availability for Adoption of Involuntarily
Committed Child and Voluntarily Committed Child. – The certificate
declaring a child legally available for adoption in case of an
involuntarily committed child under Article 141, paragraph 4(a) and
Article 142 of Presidential Decree No. 603 shall be issued by the
DSWD within three (3) months following such involuntary
commitment.
In case of voluntary commitment as contemplated in Article 154 of
Presidential Decree No. 603, the certification declaring the child
legally available for adoption shall be issued by the Secretary within
three (3) months following the filing of the Deed of Voluntary
Commitment, as signed by the parent(s) with the DSWD.
Upon petition filed with the DSWD, the parent(s) or legal guardian
who voluntarily committed a child may recover legal custody and
parental authority over him/her from the agency or institution to
which such child was voluntarily committed when it is shown to the
satisfaction of the DSWD that the parent(s) or legal guardian is in a
position to adequately provide for the needs of the child: Provided,
That, the petition for restoration is filed within (3) months after the
signing of the Deed of Voluntary Commitment.
Section 8. Certification. – The certification that a child is legally
available for adoption shall be issued by the DSWD in lieu of a
judicial order, thus making the entire process administrative in
nature.
The certification, shall be, for all intents and purposes, the primary
evidence that the child is legally available in a domestic adoption
proceeding, as provided in Republic Act No. 8552 and in an inter- Section 13. Effectivity. – This Act shall take effect fifteen (15) days
country adoption proceeding, as provided in Republic Act No. following its complete publication in two (2) newspapers of general
8043. circulation or in the Official Gazette.
Section. 9. Implementing Rules and Regulations. – The DSWD,
together with the Council for Welfare of Children, Inter-Country
Adoption Board, two (2) representatives from licensed or accredited
child-placing and child-caring agencies or institution, National
Statistics Office and Office of the Civil Registrar, is hereby tasked to
draft the implementing rules and regulations of this Act within sixty
(60) days following its complete publication.
Upon effectivity of this Act and pending the completion of the
drafting of the implementing rules and regulations, petitions for the
issuance of a certification declaring a child legally available for
adoption may be filled with the regional office of the DSWD where
the child was found or abandoned.
Section 10. Penalty. – The penalty of One hundred thousand pesos
(P100,000.00) to Two hundred thousand pesos (P200,000.00) shall
be imposed on any person, institution, or agency who shall place a
child for adoption without the certification that the child is legally
available for adoption issued by the DSWD. Any agency or
institution found violating any provision of this Act shall have its
license to operate revoked without prejudice to the criminal
prosecution of its officers and employees.
Violation of any provision of this Act shall subject the government
official or employee concerned to appropriate administrative, civil
and/or criminal sanctions, including suspension and/or dismissal
from the government service and forfeiture of benefits.
Section 11. Repealing Clause. – Sections 2(c)(iii), 3(b), (e) and 8(a)
of Republic Act No. 8552, Section 3(f) of Republic Act No. 8043,
Chapter 1 of Title VII, and VIII of Presidential Decree No. 603 and
any law, presidential decree, executive order, letter of instruction,
administrative order, rule, or regulation contrary to or inconsistent
with the provisions of this Act are hereby reprealed, modified or
amended accordingly.
Section 12. Separability Clause. – If any provision of this Act is held
invalid or unconstitutional, the other provisions not affected thereby
shall remain valid and subsisting.
ARTICLE III - ELIGIBILITY (RA 8552)
Section 7. WHO MAY ADOPT
a. Filipino citizen 1. legal age (18 years old)
(7) 2. must have full civil capacity and
legal rights
3. must have good moral character
4. must not have been convicted of a
crime involving moral turpitude
(pardon would not erase the
disqualification)
5. m u s t b e e m o t i o n a l l y a n d
psychologically capable of caring for
children
6. must be at least 16 years older than
the adoptee
๏ may be waived if:
a) the adoptee is the biological
parent of the adoptee; or
b) when the adopter is the spouse
of the adoptee’s parent
7. must be capable of supporting and
caring for his own children
b. Alien (5) 1-7. all the above mentioned
8. his country must have diplomatic
relations with the RP
9. he must be living in the Philippines
for at least 3 years continuously prior
to the filing of the petition for
adoption;
๏ may be waived when:
a) a former Filipino citizen who
seeks to adopt a relative within
the 4th civil degree of
consanguinity or affinity; or
b) one who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse
Alien c) one who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within the 4th degree of
consanguinity or affinity of the
Filipino spouse
10. he must maintain such residency
until the adoption decree is entered
11. he has the legal capacity to adopt in
his own country (must be duly
certified by his diplomatic or consular
office or appropriate ageny of his
country)
12. that the adoptee is allowed to enter
the adopter’s country, as the latter’s
adopted child
c. Guardian after the termination of the guardianship
and clearance of his/her financial
accountabilities
Husband and Wife shall jointly adopt
except in the following cases:
1. if one spouse seeks to adopt the
legitimate son/daughter of the other;
or
2. if one spouse seeks to adopt his/her
own illegitimate son/daughter;
3. if the spouses are legally separated
from each other
in case the husband and wife jointly
adopt, or one spouse adopts the
illegitimate son/daughter of the other,
joint parental authority shall be execised
by the spouses
Article 186. In case husband and wife jointly
adopt or one spouse adopts the legitimate
child of the other, joint parental authority shall
be exercised by the spouses in accordance
with this Code.
Article 186 covers legitimate children
Supplemental Law: Section 7, RA 8552 - in case the husband and
wife jointly adopt, or one spouse adopts the illegitimate son/
daughter of the other, joint parental authority shall be exercised by
the spouses
Langingin vs. Republic
June 27, 2006
Facts:
1. Diwata Landingin, a US citizen, wants to adopt nieces and
nephew: Elaine, Elma and Eugene Dizon Ramos. Thus files for a
petition for adoption
‣ Manuel Ramos (petitioner’s brother died)
‣ Amelia Ramos left for Italy to work, had already remarried
and have kids of her own.
‣ Amelia abandoned her children
‣ children are now staying with their uncle after their
grandmother died (to whom the children were entrusted)
‣ minor children have already consented to the adoption
‣ petitioner’s children also have consented - Affidavit of
Consent notarized by a notary public in Guam, USA
‣ Elaine, the eldest among the adoptees testified
2. D S W D h o m e s t u d y re p o r t c o n d u c t e d b y P a g b i l a o
recommended that the minors be adopted by their maternal
aunt Diwata Landingin
‣ mother has voluntarily consent to their adoption - Affidavit
of Consent executed by the mother
‣ minors have voluntarily consented to the adoption
‣ minors are present under the care of a temporary guardian
who also has a family to look after
➡ However, Diwata failed to present Pagbilao on the stands
3. OSG deputized the city Prosecutor to appear on his behalf
4. RTC granted the petition for adoption
5. OSG files an appeal before the CA. RTC erred in granting the
petition because there was:
(a) lack of written consent of mother
(b) lack of written conent of petitioner’s children
(c) petitioner failed to establish that she is in a position to
support the proposed adoptees
6. CA reversed the RTC ruling and denied petitioner’s Motion for
Reconsideration
(a) petitioner failed to adduce in evidence the voluntary
consent of Amelia Ramos
(b) the affidavit of consent of the petitioner’s children could not
also be admitted in evidence as the same was executed in
Guam and was not authenticated or acknowledged before
a Philippine consular office
(c) petitioner was not stable enough to support the children
Held:
W/N the petitioner is entitled to adopt the minors without the
consent of their biological mother, Amelia Ramos
According to Sec. 9 of RA 8552, the written consent of the
biological parents is indispensable for the validity of a decree of
adoption. Indeed, the natural right of a parent to his child requires
that his consent must first be obtained before his parental rights
and duties may be terminated and re-established in adoptive
parents. In this case, petitioner failed to submit the written consent
of Amelia Ramos to the adoption.
Pagbilao was able to interview Amelia, the Court finds it
incredible that the latter would not require Amelia Ramos to execute
a Written Consent to the adoption of her minor children. Neither did
Diwata bother to present Amelia Ramos as witness in support of the
petition.
Is there no need for the consent from Amelia since she had already
abandoned the children?
No. If Amelia Ramos did abandon her children, Diwata should
have adduced the written consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of
his child without his consent, is a conduct which evinces a settled
purpose to forego all parental duties. The term means neglect and
refusal to perform the fiilial an legal obligations of love and support.
If a parent withholds presence, love, care, the opportunity to display
filial affection, and neglects to lend support and maintenance, the
parent in effect, abandons the child.
Merely permitting the child to remain for a time undisturbed in
the care of others is not such an abandonment. To dispense with
the requirement of consent, the abandonment must be shown to
have existed at the time of adoption. In this case, Diwata relied only
on her own testimony. However, the Home Study Report of the siblings and her children are financially able and that they are
DSWD stated that Amelia Ramos left for Italy to work as a domestic willing to support the minors herein.
helper and would send financial support from Php 10,000-15,000
per month through her parents who share Php 3,000-5,000 a month
to her children. Thus, when Amelia left for Italy, she had not
intended to abandon her children, or to permanently sever their
monther-child relationship.
It would be against the spirit of the law if financial consideration
were to be the paramount consideration in deciding whether to
deprive a person of parental authority over his/her children. More
proof has to be adduced that Amelia has emotionally abandoned
the children, and that the latter will not miss her guidance and
counsel if they are given to an adopting parents. Again, it is the best
interest of the child that takes precedence in adoption.
W/N the affidavit of consent purportedly executed by the
petitioner-adopter’s children sufficiently complies with the law
Petitioner failed to offer in evidence Pagbilao’s Report and of
the Joint Affidavit of Consent purportedly executed by her children;
the authenticity of which she, likewise, failed to prove. The joint
written consent of petitioner’s children was notarized in Guam was
treated in the same way as document notarized in the country
(processual presumption.) It needs to comply with Section of Act
No. 2103
Unfortunately, the petitioner failed to comply with the said law,
at best treated by the Rules as a private document whose
authenticity must be proved either by anyone who saw the
document executed or written; or by eivdence of the genuineness of
the signature or handwriting of the makers. Since, in the instant
case, no further proof was introduced by petitioner to authenticate
the written consent of her legitimate children, the same is
inadmissible in evidence.
W/N petitioner is financially capable of supporting the adoptees
No. It is doubtful whether petitioner will be able to sufficiently
handle the financial aspect of rearing the 3 children in the US. She
only has a part-time job, and she is rather of age. Her house is
under amortization. She knows that her financial status may be a
ground for the petition not to be granted. While petitioner claims that
she has the financial support and backing of her children and
siblings, the OSG is correct in stating that the ability to support the
adoptees is personal to the adopter, as adoption only creates a
legal relation between the former and the latter. Moreover, the
records do not prove nor support petitioner’s allegation that her
Section 8. WHO MAY BE ADOPTED
minors who have been (a) Any person below 18 years of
judicially declared legally age who has been
available for adoption administratively (or judicialy
declared available for
adoption) <see “child”
definition in RA 9523>
legitimate stepchild (b) The legitimate son/daughter
of one spouse by the other
spouse;
illegitimate child (c) An illegitimate son/daughter
by a qualified adopter to
improve his/her status to that
of legitimacy;
a qualified adult (d) A person of legal age if, prior
to the adoption, said person
has been consistently
considered and treated by the
adopter(s) as his/her own
child since minority;
a child whose adoption has (e) A child whose adoption has
been previously rescinded been previously rescinded; or
adopted who had been (f) A child who biological or
orphaned by the death of adoptive parents has died;
the adoptive parent provided, that no proceeding
shall be initiated within 6
months from the time of death
of said parent(s).
Section 9. WHOSE CONSENT IS NECESSARY TO THE
ADOPTION. — After being properly counseled and informed
of his/her right to give or withhold his/her approval of the
adoption, the written consent of the following to the adoption is
hereby required:
(a) the adoptee, if 10 years of age or over
(b) the biological parent of the child, if known, or the legal
guardian, or the proper government instrumentally which
has legal custody of the child;
(c) the legitimate and adopted sons/ daughters, 10 years of
age, or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, 10 years of age or over, of
the adopter if living with said adopter and the latter’s
spouse, if any;
(e) The spouse, if any, of the person adopting or to be adopted
Written Consent is needed
- no need for it to be notarized
- however, it would be better practice that it be done in a public
instrument to guard against disavowal of the adoption and to
discourage malicious attempts to frustrate the adoption in the
future.
- public documents as evidence give stronger protection than
private documents
In Re: Petition for Adoption of Michelle and Michael Jude Lim
Joint adoption of husband and wife is mandatory; Monina Lim
filed petitions for adoption solely; foreigner husband does not
satisfy requirements
May 21, 2009
Facts:
1. Monina Lim and her deceased husband, Primo Lim simulated
the births of Michelle and Michael Jude, therefore making it
seem that the two are their children.
2. They cared for the children and treated them like their own.
Unfortunately, Primo Lim died.
3. Monina Lim eventually remarried a US citizen, named Olario.
4. She filed a petition to adopt the children by availing of the
amnesty given under RA 8552 to those individuals who
simulated the birth of a child.
1. Michael was 18 years old - gave his consent (Affidavit of
Consent)
2. Michelle was 24 years old - Michelle and her husband gave
their consent to the adoption (Affidavit of Consent)
3. Olario gave executed an Affidavit of Consent
5. RTC denied the petition and ruled that:
1. petitioner should have filed the petition for adoption with
her husband as they do not fall under the exceptions under
Section 7(c), Article III, RA 8552
2. the consent of the husband is insufficient as there are other
requisites that have to be complied with such as the
residency requirement and certification of his qualification
3. joint adoption is mandatory
6. Petitioner brings the case to the SC
Held:
W/N petitioner who has remarried can singly adopt
No. At the time the petitions for adoption were filed, petitioner
had already remarried. She filed the petitions herself, without being
joined by her husband Olario. The law is explicit. Section 7, Article
III of RA 8552 states that the husband and wife shall jointly adopt
except only in cases where (1) the spouse seeks to adopt the
legitimate son/daughter of the other; or (2) if one spouse seeks to
adopt his/her own illegitimate son/daughter. Provided, however ,
that the other spouse has signified his/her consent thereto; or (3) if
the spouses are legally separated from each other. The word “shall”
in the provision means that joint adoption is mandatory. Petitioner
and Olario does not fall under the exceptions stated.
Will the consent of Olario suffice?
No. There are certain requirements that Olario must comply
being an American citizen. He must meet the qualifications set forth
in Section 7 of RA 8552 such as:
(1) he must prove that his country has diplomatic relations with the
Republic of the Philippines
(2) he must have been living in the Philippines for at least 3
continuous years prior to the filing of the application for
adoption
(3) he must maintain such residency until the adoption decree is
entered
(4) he has the legal capacity to adopt in his own country; and
(5) the adoptee is allowed to enter the adopter’s country as the
latter’s adopted child.
None of these qualifications were shown and proved during the
trial.
These requirements on residency and certification of the alien’s
qualification to adopt cannot likewise be waived pursuant to Section
7. The children or adoptees are not relatives within the 4th degree of
consanguinity or affinity of petitioner or of Olario. Neither are the
adoptees the legitimate children of the petitioner.
Is joint parental authority not anymore necessary since the
children have been emancipated?
 It is true that when the child reaches the age of emancipation,
the same terminates parental authority over the person and property
of the child, who shall then be qualified and responsible for all acts
of civil life. However, parental authority is merely just one of the
effects of legal adoption.
Article V of RA 8552 enumerates the effects of adoption:
(1) Parental authority - all legal ties between the biological parents
and the adoptee shall be severed and the same shall be vested
on the adopter(s);
(2) Legitimacy - adoptee(s) will be the adopter(s) legitimate
children
(3) Succession - adoptee(s) and adopter(s) have reciprocal rights
and obligations arising from the relationship of parent and child
Thus, if emancipation terminates parental authority, the
adoptee is still considered a legitimate child of the adopter will
all the rights of a legitimate child such as (1) bear the surname
of the father and the mother; (2) to receive support from their
parents (3) to be entitled to the legitime and other successional
rights.
Is it necessary to still jointly adopt even if Olario has filed for
the dissolution of his and Monina’s marriage?
No. The filing of a case for dissolution of the marriage between
petitioner and Olario is of no moment. It is not equivalent to a
decree of dissolution of marriage. Until and unless there is a judicial
decree for the dissolution of the marriage between petitioner and
Olario, the marriage still subsists. That being the case, the joint
adoption by the husband and the wife is required. We reiterate our
ruling above that since, at the time the petitions for adoption
were filed, petitioner was married to Olario, joint adoption is
mandatory.
Castro vs. Gregorio
SC annulled the decree of adoption because of the extrinsic
fraud as well as lack of jurisdiction
October 15, 2014
Facts:
1. Atty. Jose Castro adopted his illegitimate children Jed Gregorio
and Regina Gregorio with his housekeeper, Lilibeth.
- Jose already 70 years old
- Homestudy Report stated that he has no child with Rosario
(wife)
- children have been with Jose since Lilibeth’s death
2. Atty. Jose is the estranged husband of Rosario Castro and the
father of Joanne Castro. (lived separately)
3. Atty. Saguisag (lawyer of Rosario) filed a disbarment case
against Atty. Castro for being remiss in his fatherly duties to
Joanne.
- Atty. Castro showered his driver gifts
4. Atty. Jose died in October 8, 2006
5. Oct 2007 - Rosario and Joanne filed a petition for annulment of
judgement under Rule 47, seeking to annul petition for adoption.
- discovered the adoption decree in 2005
- Rosario’s affidavit was fradulent
- Jed and Regina are the legitimate children of Lilibeth and
Larry (driver) who were married at the time of their birth
(evinced by the different sets of birth certificates)
6. CA denied their petition
- there is no explicit provision in the rules that the spouse and
legitimate child of the adopter should be personally notified
of the hearing
- CA was bound by the RTC decision as it had attained finality
- different sets of birth certificates is out of the scope of the
action for annulment of judgement
- the alleged fraud could not be classified as extrinsic fraud
7. stand of the petitioners
- because of the fabricated consent obtained by Jose and the
alleged information shown in the birth certificates presented
as evidence before the RTC, they were not given the
opportunity to oppose the petition since the entire
proceedings were concealed from them
8. defense of the respondents:
- they were given constructive notice through publication
- the fraud is only intrinsic (what is needed for annulment is
extrinsic fraud)
- petitioners were not deprived of their day in court because
they were protected by the participation of the solicitor
general
- petitioners are not indispensable parties because adoption
is an action in rem and as such, the only indispensable
party is the State.
Held:
W/N adoption decree is void
RA 8552 was already effective at the time of the filing of the
petition of the adoption. Thus, Section 7, Article III, of RA 8552
requires that the consent of the wife must be obtained if he seeks to
adopt his illegitimate child. The provision is mandatory. As a general
rule, the husband and the wife must file a joint petition for adoption.
In In Re: Petition for Adoption of Michelle P. Lim, the SC ruled: “The
use of the word “shall” in the above-quoted provision means that
joint adoption of the husband and the wife is mandatory. This is
in consonance with the concept of joint parental authority over the
child which is ideal situation. As the child to be adopted is elevated
to the level of a legitimate child, it is but natural to require the
spouses to adopt jointly. The rule also ensures harmony
between the spouses.
In the absence of any decree of legal separation or annulment,
Jose and Rosario remained legally married despite their de facto
separation. For Jose to be eligible to adopt Jed and Regina,
Rosario must first signify her consent to the adoption. Jose,
however, did not validly obtain Rosario's consent. His submission of
a fraudulent affidavit of consent in her name cannot be considered
compliance of the requisites of the law. Had Rosario been given
notice by the trial court of the proceedings, she would have had a
reasonable opportunity to contest the validity of the affidavit. Since
her consent was not obtained, Jose was ineligible to adopt.
Section 9, Article III also provides that the written consent of a
legitimate child over 10 years old should be obtained. It is
necessary to ensure the harmony among prospective siblings. It
also sufficiently puts the other children on notice that they will have
to share their parent’s love and care, as well as their future
legitimes, with another person. Joanne’s consent therefore was
required. To circumvent this requirement, Atty. Castro manifested to
the Court that he had no children with Rosario, thus no consent, no
valid adoption.
W/N there was lack of jurisdiction
lack of jurisdiction: lack of jurisdiction of the nature of the action or
subject matter
For the adoption to be valid, petitioners' consent was required
by Republic Act No. 8552. Personal service of summons should
have been effected on the spouse and all legitimate children to
ensure that their substantive rights are protected. It is not enough to
rely on constructive notice as in this case. Surreptitious use of
procedural technicalities cannot be privileged over substantive
statutory rights.
Hence, The trial court never validly acquired jurisdiction
because it failed to personally serve notice on Rosario and Joanne
of the proceedings.
W/N there was extrinsic fraud
extrinsic fraud: that which prevents a party from having a trial or
from presenting his entire case to the court; or that which operates
upon matters pertaining not to the judgement itself but to the
manner in which it is procured.
An annulment based on extrinsic fraud must be brought within
4 years from discovery. The petitioners were made aware of the
adoption decree in 2005, thus within the prescription period.
There is extrinsic fraud:
(1) petition for adoption was filed in a place that had no relation to
any of the parties
(2) using the process of delayed registration, Jose was able to
secure the birth certificates of Jed and Regina showing him to
be the father and Larry as the informant; there are 2 birth
certificates = 1 real 1 fake
(3) lied to the trial court when he declared that he was childless;
and consent of Rosario was fraudulent
There is intrinsic fraud when the other party was either present
at the trial or was a participant in the proceedings when such
instrument or testimony was presented in court. There is extrinsic
fraud when it is employed by a party precisely to prevent the
participation of any other interested party, regardless of whether the
fraud was committed through the use of forged documents or
perjured testimony during the trial.
ARTICLE IV
PROCEDURE
Section 10. Hurried Decisions. – In all proceedings for adoption,
the court shall require proof that the biological parent(s) has been
properly counseled to prevent him/her from making hurried
decisions caused by strain or anxiety to give up the child, and to
sustain that all measures to strengthen the family have been
exhausted and that any prolonged stay of the child in his/her own
home will be inimical to his/her welfare and interest.
Section 11. Case Study. – No petition for adoption shall be set for
hearing unless a licensed social worker of the Department, the
social service office of the local government unit, or any child-
placing or child-caring agency has made a case study of the
adoptee, his/her biological parent(s), as well as the adopter(s), and
has submitted the report and recommendations on the matter to the
court hearing such petition.
At the time of preparation of the adoptee's case study, the
concerned social worker shall confirm with the Civil Registry the real
identity and registered name of the adoptee. If the birth of the
adoptee was not registered with the Civil Registry, it shall be the
responsibility of the concerned social worker to ensure that the
adoptee is registered.
The case study on the adoptee shall establish that he/she is legally
available for adoption and that the documents to support this fact
are valid and authentic. Further, the case study of the adopter(s)
shall ascertain his/her genuine intentions and that the adoption is in
the best interest of the child.
The Department shall intervene on behalf of the adoptee if it finds,
after the conduct of the case studies, that the petition should be
denied. The case studies and other relevant documents and
records pertaining to the adoptee and the adoption shall be
preserved by the Department.
Section 12. Supervised Trial Custody. – No petition for adoption
shall be finally granted until the adopter(s) has been given by the
court a supervised trial custody period for at least six (6) months
within which the parties are expected to adjust psychologically and
emotionally to each other and establish a bonding relationship.
During said period, temporary parental authority shall be vested in
the adopter(s).
The court may motu proprio or upon motion of any party reduce the
trial period if it finds the same to be in the best interest of the
adoptee, stating the reasons for the reduction of the period.
However, for alien adopter(s), he/she must complete the six (6)-
month trial custody except for those enumerated in Sec. 7 (b) (i) (ii)
(iii).
If the child is below seven (7) years of age and is placed with the
prospective adopter(s) through a pre-adoption placement authority
issued by the Department, the prospective adopter(s) shall enjoy all
the benefits to which biological parent(s) is entitled from the date
the adoptee is placed with the prospective adopter(s).
Section 13. Decree of Adoption. – If, after the publication of the
order of hearing has been complied with, and no opposition has
been interposed to the petition, and after consideration of the case
studies, the qualifications of the adopter(s), trial custody report and
the evidence submitted, the court is convinced that the petitioners
are qualified to adopt, and that the adoption would redound to the
best interest of the adoptee, a decree of adoption shall be entered
which shall be effective as of the date the original petition was
filed. This provision shall also apply in case the petitioner(s) dies
before the issuance of the decree of adoption to protect the
interest of the adoptee. The decree shall state the name by which
the child is to be known.
Section 14. Civil Registry Record. – An amended certificate of birth
shall be issued by the Civil Registry, as required by the Rules of
Court, attesting to the fact that the adoptee is the child of the
adopter(s) by being registered with his/her surname. The original
certificate of birth shall be stamped "cancelled" with the annotation
of the issuance of an amended birth certificate in its place and shall
be sealed in the civil registry records. The new birth certificate to be
issued to the adoptee shall not bear any notation that it is an
amended issue.
Section 15. Confidential Nature of Proceedings and Records. – All
hearings in adoption cases shall be confidential and shall not be
open to the public. All records, books, and papers relating to the
adoption cases in the files of the court, the Department, or any other
agency or institution participating in the adoption proceedings shall
be kept strictly confidential.
If the court finds that the disclosure of the information to a third
person is necessary for purposes connected with or arising out of
the adoption and will be for the best interest of the adoptee, the
court may merit the necessary information to be released, restricting
the purposes for which it may be used.
ARTICLE V
EFFECTS OF ADOPTION
Section 16. Parental Authority. – Except in cases where the
biological parent is the spouse of the adopter, all legal ties between
the biological parent(s) and the adoptee shall be severed and the
same shall then be vested on the adopter(s).
Section 17. Legitimacy. – The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without
discrimination of any kind. To this end, the adoptee is entitled to
love, guidance, and support in keeping with the means of the family.
Section 18. Succession. – In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s) had left a will, the law
on testamentary succession shall govern.
__________
Effects of Adoption:
(1) Adopted becomes legitimate child of adopters
‣ “civil purposes” meant to exclude political purposes
‣ an adoptee cannot “inherit” the citizenship of the adopter
‣ citizenship is political in nautre over which the State has an
interest
‣ “all intents and purposes” = all encompassing and all-
embracing; adoptees can now inherit from their adopting
parents and they can now represent them in the estate of
the ascendants of the adopters; if preterited, the institution
of heirs is nullified (Acain vs. IAC)
‣ old rule: Teotico vs. Del Val - There is a well-known principle
in the law on succession that “adoption is a personal
relationship” between the adopter and the adoptee. As such
adoption does not make the adoptee a relatives of the
adopter and vice-versa
‣ new rule: the adoptee shall be considered the legitimate
son/daughter of the adopters for all intents and purposes
and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them
without discrimination of any kind. To this end, the adoptee
is entitled to love, guidance, and support in keeping with the
means of the family.
(2) Right to use the surname of the adopter
(3) Parental Authority of biological parents is terminated
(4) All legal ties between the biological parents and adopter
had been severed
Santos, Jr. vs. RP - The relation established by the adoption is
limited to the adopting parents and does not extend to their other
relatives, except as expressly provided by law. The relationship is
only one of parent and child. Thus, the adopted child cannot be
considered as a relative of the ascendants and collateral relatives of
the adopting parents, nor of the legitimate children which they may
have after the adoption except that the law imposes certain
impediments to marriage by reason of adoption. Neither are the
children of the adopted considered as descendants of the adopter.
Tamargo vs. CA
natural parents who have actual custody and control over the
child about to be adopted are responsible and therefore liable
for the latters tortious acts; adopting parents assume parental
authority therefore when the child is under their actual custody
and control
June 3, 1992
Facts:
1. Adelberto Bundoc, 10 years old, shot Jennifer Tamargo with an
air rifle causing injuries which resulted to her death
2. Jennifer’s adopting parent, Macario Tamargo and Jennifer’s
natural parents, Celso and Aurelia Tamago filed a case againtst
Victor and Clara Bundoc (parents of Adelberto, with whom he
was living at that time)
3. Spouses Sabas and Felisa Rapisura petition to adopt Adelberto
was granted by the RTC.
4. Natural parents of Adelberto said that the adopting parents
should be made parties to the case as parental authority had
shifted to them from the moment the successful petition for
adoption was filed.
5. Petitioners contended that since Adelberto was with the natural
parents, parental authority had not ceased nor been
relinquished by the mere filing and granting of a petition for
adoption
6. RTC dismissed petitioners’ complaint. Respondent natural
parents of Adelberto were not indispensable parties to the
action
7. RTC and CA dismissed the petitioners’ appeals due to its late
filing
Held:
W/N the natural parents are indispensable parties in the suit for
damages
The civil liability imposed upon parents for the torts of their
minor children living with them, may be seen to be based upon the
parental authority vested by the Civil Code upon such parents. In
Article 2176, the civil law assumes that when an unemancipated
child living with its parents commits a tortious act, the parents were
negligent in the performance of their legal and natural duty closely
to supervise the child who is in their custody and control.
Parental liabilty is anchored upon parental authority coupled with
presumed parental dereliction in the discharge of the duties
accompanying such authority. The parental dereliction is, only
presumed and can be overturned under Article 2180 of the Civil
Code by proof that the parents had exercised all the diligence of a
good father of a family to prevent the damage
In the instant case, the shooting of Jennifer by Adelberto with
an air rifle occurred when parental authority was still lodged in
respondent Bundoc spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural parents who had
actual custody of the minor Adelberto, are the indispensable parties
to the suit for damages.
W/N the effects of adoption insofar as parental authority is
concerned may be given retroactive effect so as to make the
adopting parents the indispensable parties in a damage case
filed against their adopted child for acts committed by the latter
when actual custody was yet lodged with the biological parents
The Respondent Bundoc maintains that the parental authority
must be deemed to have been dissolved as of the time the petition
for adoption was filed and is retroactive due to Art. 36 of the Child
and Youth Welfare Code which statest that the decree of adoption is
effective as of the date the original petition was filed.
Under the Civil Code, the basis of parental liability for the torts
of a minor child living with them and over whom, the law presumes,
the parents exercise supervision and control. Art. 58 of the Child
and Youth Welfare Code provides that parents and guardians are
responsible for the damage caused by the child under their
parental authority in accordance with the Civil Code. Article 221 of
the Family Code states that parents and other persons
exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their
unemancipated children living in their company and under their
parental authority subject to the appropriate defenses provided by
law.
We do not consider that retroactive effect may be given to the
decree of adoption so as to impose a liability upon the adopting
parents accruing at a time when the adopting parents had no actual
or physical custody over the adopted child. Retroactive effect may
perhaps be given to the granting of the petition for adoption where
such is essential to permit the accrual of some benefit or advantage
in favor of the adopted child. In the instant case, however, to hold
that parental authority had been retroactively lodged in the Rapisura
spouses so as to burden them with liability for a tortious act that
they could not have foreseen and which they could not have
prevented (since they were at the time in the US and had no
physical custody over the child) would be unfair and
unconscionable. Such a result, would be inconsistent with the
philosophical and policy basis underlying the doctrine of vicarious
liability. The presumption of parental dereliction on the part of the
adopting parents, Rapisura spouses, could not have arisen since
Adelberto was not in fact subject to their control at the time the tort Intestate Succession with legitimate children
was committed. Article 190. Legal or intestate succession to
In general, the adopting parents are given parental authority
during the period of trial custody before the issuance of a decree of
the estate of the adopted shall be governed If there are legitimate children/ adopting parent/s cannot inherit
heirs - but they can be given devisees
adoption, precisely because the adopting parents are given actual by the following rules: or legacies by the adopted
custody of the child during such trial period. In the instant case, the (1) Legitimate and illegitimate children and
trial custody period either had not yet begun or had already been spouse, legitimate, illegitimate will inherit pursuant to the
descendants and the surviving spouse of children or descendants ordinary rules of succession
completed at the time of the air rifle shooting; in any case, actual
custody of Adelberto was then with his natural parents, and not the the adopted shall inherit from the Article 999 of the Civil Code
adopting parents. adopted, in accordance with the ordinary surviving spouse and legitimate Article 997 of the Civil Code will
The natural parents are thus the indispensable parties to the rules of legal or intestate succession; parents apply
damage suit.
(2) W h e n t h e p a r e n t s , l e g i t i m a t e o r only collateral blood relatives they will inherit pursuant to Article
illegitimate, or the legitimate ascendants 1003 of the Civil Code
of the adopted concur with the adopters
Shares of intestate heirs
Section 18. Succession. – In legal and intestate succession, the they shall divide the entire estate, one-half
adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. However, if
to be inherited by the parents or adopters with adopters = whole estate
ascendants and the other half, by the (a) biological parents biological parents/ascendants = none
the adoptee and his/her biological parent(s) had left a will, the law
(legit/illegit), or
on testamentary succession shall govern. adopters; (b) biological * Sec.16 RA 8552, all legal ties
(3) When the surviving spouse or the ascendants of the previously existing between the
adopted biological parents and the adopted child
illegitimate children of the adopted concur are severed, except only if the biological
with the adopters, they shall divide the parent is the spouse of the adopter
entire estate in equal shares, one-half to adopters with adopters = 1/2 of the estate (Art. 997,
be inherited by the spouse or the (a) surviving spouse, or NCC)
illegitimate children of the adopted and (b) illegitimate children surviving spouse or illegitimate children =
1/2 of the estate (Art. 997, 998, NCC)
the other half, by the adopters;
(4) When the adopters concur with the adopters with adopters = 1/2 of the estate
(a) surviving spouse, surviving spouse = 1/4 of the estate
illegitimate children and the surviving and illegitimate children = 1/4 of the estate
spouse of the adopted, they shall divide (b) illegitimate children
the entire estate in equal shares, one-third adopters surviving will get all; equal shares
to be inherited by the illegitimate children, alone
one-third by the surviving spouse, and collateral relatives surviving alone = get whole estate
one-third by the adopters; (not from biological concurring with adopters = 1/2 adopters
parents but the and 1/2 for collateral relatives (Art. 1001,
(5) When only the adopters survive, they shall adopting parents) NCC)
Article 190 applies only if adopted dies
inherit the entire estate; and
‣ no will; or with a will but it is not effective (6) When only collateral blood relatives of the
‣ if there is a will, law on testamentary succession will apply adopted srvive, then the ordinary rules of
the legal or intestate succession shall
apply.
Bartolome vs. SSS
Can biological parents inherit from the deceased son who was
legally adopted by the biological parent’s grandfather? Yes,
since in this case, the adopter died while the adopted son was
still a minor, parental authority reverted to the biological parent.
Hence, Bartolome, is entitled to the death benefits
November 12, 2014
Facts:
1. John Colcol was a seaman on board Maersk Danville who died.
2. Bernardina Bartolome, the biological mother of John Colcol,
wanted to claim the death benefits from SSS pursuant to PD 626
3. SSS La Union denied Bartolome’s petition
4. Bartolome appealed before the Employee’s Compensation
Commission (ECC) which affirmed the SSS La Union ruling
- John Colcol and his sister Elizabeth were adopted by their
great grandfather, Cornelio Colcol
- Even if Cornelio had died, Bartolome would still not be a
secondary beneficiary
- According to Article 167 of PD 626, in the absence of the
dependent spouse, or children who are the primary
beneficiaries, the dependent parents is considered a
secondary beneficiary
- dependent parent relates to the legitimate parent of the
covered member
- Commission believes that the appellant is not considered a
legitimate parent of the deceased, having given up the latter
for adoption to Mr. Cornelio Colcol. Thus, in effect, the
adoption divested her of the status as the legitimate parent
of the deceased.
- ECC found no proof that Cornelio is dead, thus presumed to
be alive despite of the presentation of a death certificate
5. Petitioner’s Motion for Reconsideration was denied.
Held:
W/N ECC’s interpretation of the law is correct
The adoption decree did not divest her of her status as a
legitimate parent, and consequently that of being a secondary
beneficiary.
The ECC read into Art. 167 of the Code an interpretation not
contemplated by the provision. The Amended Rules of ECC in the
light of the Labor Code, is of unauthorized administrative legislation.
Court found that Rule XV of the Amended Rules of Employee’s
Compensation is wayward restriction of and a substantial deviation
from Article 167(j) of the Labor Code when it interpreted the phrase
“dependent parents” to refer to “legitimate parents.”
The term “dependent parents” should, therefore, include all
parents, whether legitimate and illegitimate and whether by
nature or by adoption. When the law does not distinguish, one
should not distinguish. Moreover, had Congress contemplated
“dependent parents” to mean legitimate parents, then it would have
simply not said “descendants” and instead put “legitimate
descendants.”
The said law also violates the equal protection clause as it
discriminates against illegitimate parents. The rule promulgated by
the ECC that limits the claim of benefits to the legitimate parents
miserably failed the test of reasonableness since the classification
is not germane to the law being implemented. Unconstitutional!
Did the adoption completely sever the ties of the biological
parent and the adopted child?
No. Cornelio Colcol died 3 years after the finality of the
adoption, when John was still a minor at about 4 years old. This
is a significant factor because parental authority should have
deemed to have reverted in favor of the biological parents. This
is consistent with the Court’s ruling that there are no collateral
relatives by virtue of adoption.
Court applied Section 20 of RA 8552 on effects of rescission by
analogy: “If the petition [for rescission of adoption] is granted, the
parental authority of the adoptee’s biological parent(s), if
known, or the legal custody of the Department shall be restored
if the adoptee is still a minor or incapacitated. The reciprocal
rights and obligations of the adopter(s) and the adoptee to each
other shall be extinguished.”
The Court applied Section 20 of RA 8552 even if it was passed
way after Cornelio’s death as the Court invoked the justification
that the paramount consideration in such adoption cases is the
best interest of the child. It is after all, for the best interest of the
child that someone will remain charged for his welfare and
upbringing should his or her adopter fail or is rendered
incapacitated to perform his duties as a parent at a time the
adoptee is still in his formative years, and to our mind, in the
absence or, as in this case, death of the adopter, no one else could
reasonably be expected to perform the role of a parent other than
the adoptee’s biological one.
Another reason, even though parental authority is severed by
virtue of adoption, the ties between the adoptee and the biological
parents are not entirely eliminated. To demonstrate, the biological
parents, in some instances, are able to inherit from the adopted, as
can be gleaned from Article 190 of the Family Code.
Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
xxx
(2) When the parents, legitimate or illegitimate, or the
legitimate ascendants of the adopted concur with the
adopter, they shall divide the entire estate, one-half to be
inherited by the parents or ascendants and the other half, by
the adopters;
xxx
(6) When only collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply.
At the time of Cornelio’s death, prior to the RA 8552, Article 984
of the NCC which states that in case of death of an adopted child,
leaving no children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs.
Is Bartolome entitled to the death benefits?
Yes. Petitioner qualifies as John’s dependent parent. Nowhere
in the Labor Code says that “legitimate parents” pertain to those
who exercise parental authority over the employee enrolled under
the ECP.
(1) Cornelio’s death during his minority
(2) parental authority was restored to Bartolome
(3) Moreover, Bartolome is a widower who was left to take care
of 7 children which is why she consented to the adoption of John
and Elizabeth in 1985. Evidence shows that the address of the
petitioner and the address of the deceased is the same. Thus, it can
be assumed that aside from having been restored parental authority
over John, petitioner indeed actually exercised the same, and that
they lived together in one roof.
(4) Bartolome is also one of the beneficiaries listed in his SSS
under RA 8282. John’s deliberate act of indicating petitioner as his
dependent at least evinces that he considered
petitioner as his dependent.
back to RA 8552
ARTICLE VI
RESCISSION OF ADOPTION
Section 19. Grounds for Rescission of Adoption. – Upon petition
of the adoptee, with the assistance of the Department if a minor or if
over eighteen (18) years of age but is incapacitated, as guardian/
counsel, the adoption may be rescinded on any of the following
grounds committed by the adopter(s):
 (a) repeated physical and verbal maltreatment by the
adopter(s) despite having undergone counseling;
(b) attempt on the life of the adoptee;
(c) sexual assault or violence; or
(d) abandonment and failure to comply with parental
obligations.
Adoption, being in the best interest of the child, shall not be subject
to rescission by the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in Article 919 of the Civil
Code.
Section 20. Effects of Rescission. – If the petition is granted, the
parental authority of the adoptee's biological parent(s), if known, or
the legal custody of the Department shall be restored if the adoptee
is still a minor or incapacitated. The reciprocal rights and
obligations of the adopter(s) and the adoptee to each other shall be
extinguished.
The court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original birth
certificate.
Succession rights shall revert to its status prior to adoption, but only
as of the date of judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without
prejudice to the penalties imposable under the Penal Code if the
criminal acts are properly proven.
Rescission
‣ contemplates a situation where the adoption decree is valid up to
the time of its termination.
‣ if adoption decree is void = can be assailed in a direct
proceeding by any interested party such as the
biological parent whose consent was not obtained
‣ only the adoptee is given legal standing to rescind an adoption
decree
- minor adoptee = assisted by DSWD
- exactly 18 years old = assisted by DSWD
- over 18 years old but incapacitated = the DSWD will act
as its guardian or counsel
- over 18 years old = can file the petition by him/herself
Remedy of the Adopter: to disinherit the adoptee
Art. 919 of the Civil Code provides the grounds to disinherit a
descendant:
1. When a child or descendant has been found guilty of an attempt
against the life of the testator, his or her spouse, descendants or
ascendants
2. When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for 6 years or more, if
the accusation has been found to be groundless;
3. When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
4. When a child or descendant by fraud, violence, intimidation, or
undue influence causes testator to make a will or to change one
already made;
5. A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant;
6. Maltreatment of the testator by word or deed, by the child or
descendant;
7. When a child or descendant leads a dishonorable or disgraceful
life;
8. Conviction of a crime which carries with it the penalty of civil
interdiction.
Lahom vs. Sibulo
RA 8552 abrogated the right of the adopter to rescind the
decree of adoption; however, Mrs. Lahom may rescind the right
of the adopted child to inherit under section 19, Article VI of RA
8552
July 14, 2003
Facts:
1. Spouses Lahom treated Jose Melvin Sibulo as their own since
he was 2 years old.
2. In 1971, the couple decided to file a petition for adoption
3. In May 1972, the order granted the petition was issued. Thus,
the court ordered that the civil Registrar of Naga City changed
the name of Jose Mervin Sibulo to Jose Melvin Lahom.
4. Mrs. Lahom after the death of her husband and after RA 8552
(which removes the right of the adopter to rescind the
adoption), files for a petition to rescind the adoption of Jose
Mervin for the following reasons:
1. refused to change his last name
2. continues to use Sibulo as his last name in all his dealings
3. respondent neglected his duties as a son to Mrs. Lahom as
he failed to visit her while she was in Manila
4. respondent would get jealous of petitioner’s niece and
nephews whenever they would visit
5. claims that respondent’s motive to his adoption is his
expectancy of his alleged rights over the properties of
herein petitioner and her late husband, clearly shown by
the filing of the case for partition against petitioner.
5. RTC dismissed the case due to Section 19, Article VI of RA
8552 which deleted the right of an adopter to rescind an
adoption earlier granted under the Family Code.
Held:
W/N the subject adoption decreed on May 5, 1972 still be
revoked or rescinded by an adopter after the effectivity of RA
8552
The reckoning period would be the time this case was filed.
Since it was filed after the effectivity of RA 8552, it is therefore
governed by the law. Such abrogated and repealed the right of an
adopter under the Civil Code and the Family Code to rescind a
decree of adoption. Verily, the Court should now hold that the action
for rescission of the adoption decree, having been initiated by
petitioner after RA 8552 had come into force, no longer, could be
pursued.
Even before the passage of the statute, an action to set aside
the adoption is subject to the 5-year bar rule under Rule 100 of the
Rules of Court and that the adopter would lose the right to revoke
the adoption decree after the lapse of that period. The exercise of
the right within a prescriptive period is a condition that could not
fulfill the requirements of a vested right entitled to protection. It must
also be acknowledged that a person has no vested right in statutory
privileges. While adoption has often been referred to in the contest
of a right, the privilege to adopt is itself not naturally innate or
fundamental but rather a right merely created by statute. It is a
privilege that is governed by the state’s determination on what it
may deem to be for the best interest and welfare of the child.
Matters relating to adoption, including the withdrawal of the right of
an adopter to nullify the adoption decree, are subject to regulation
by the State. Concomitantly, a right of action given by statute may
be taken away at anytime before it has been exercised.
Dura lex sed lex. RA 8552 withdrew the right of the adopter
to rescind the decree of adoption. However, an adopter, while
barred from severing the legal ties of adoption, can always filed
for valid reasons cause the forfeiture of certain benefits
otherwise accruing to an undeserving child. For instance, upon
the grounds recognized by law, an adopter may deny to an
adopted child his legitime and by will and testament, may freely
exclude him from having a share in the disposable portion of
his estate.
ARTICLE VII
VIOLATIONS AND PENALTIES
Section 21. Violations and Penalties. – (a) The penalty of
imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and/or a fine not less than Fifty thousand pesos
(P50,000.00), but not more than Two hundred thousand pesos
(P200,000.00) at the discretion of the court shall be imposed on any
person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue
influence, fraud, improper material inducement, or other similar
acts;
(ii) non-compliance with the procedures and safeguards
provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger,
abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the birth
of a child under the name(s) of a person(s) who is not his/her
biological parent(s) shall be guilty of simulation of birth, and shall be
punished by prision mayor in its medium period and a fine not
exceeding Fifty thousand pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in violation of his/
her oath of office, shall cooperate in the execution of the
abovementioned crime shall suffer the penalties herein prescribed
and also the penalty of permanent disqualification.
Any person who shall violate established regulations relating to the
confidentiality and integrity of records, documents, and
communications of adoption applications, cases, and processes
shall suffer the penalty of imprisonment ranging from one (1) year
and one (1) day to two (2) years, and/or a fine of not less than Five
thousand pesos (P5,000.00) but not more than Ten thousand pesos
(P10,000.00), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the
consummated offense under this Article shall be imposed upon the
principals of the attempt to commit any of the acts herein
enumerated. Acts punishable under this Article, when committed by
a syndicate or where it involves two (2) or more children shall be
considered as an offense constituting child trafficking and shall
merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying out
any of the unlawful acts defined under this Article. Penalties as are
herein provided, shall be in addition to any other penalties which
may be imposed for the same acts punishable under other laws,
ordinances, executive orders, and proclamations.
When the offender is an alien, he/she shall be deported immediately
after service of sentence and perpetually excluded from entry to the
country.
Any government official, employee or functionary who shall be
found guilty of violating any of the provisions of this Act, or who shall
conspire with private individuals shall, in addition to the above-
prescribed penalties, be penalized in accordance with existing civil
service laws, rules and regulations: Provided, That upon the filing of
a case, either administrative or criminal, said government official,
employee, or functionary concerned shall automatically suffer
suspension until the resolution of the case.
Section 22. Rectification of Simulated Births. – A person who
has, prior to the effectivity of this Act, simulated the birth of a child
shall not be punished for such act: Provided, That the simulation of
birth was made for the best interest of the child and that he/she has
been consistently considered and treated by that person as his/her
own son/daughter: Provided, further, That the application for
correction of the birth registration and petition for adoption shall be
filed within five (5) years from the effectivity of this Act and
completed thereafter: Provided, finally, That such person complies
with the procedure as specified in Article IV of this Act and other
requirements as determined by the Department.
ARTICLE VIII
FINAL PROVISIONS
Section 23. Adoption Resource and Referral Office. – There shall
be established an Adoption Resources and Referral Office under
the Department with the following functions: (a) monitor the
existence, number, and flow of children legally available for
adoption and prospective adopter(s) so as to facilitate their
matching; (b) maintain a nationwide information and educational
campaign on domestic adoption; (c) keep records of adoption
proceedings; (d) generate resources to help child-caring and child-
placing agencies and foster homes maintain viability; and (e) do
policy research in collaboration with the Intercountry Adoption
Board and other concerned agencies. The office shall be manned
by adoption experts from the public and private sectors.
Section 24. Implementing Rules and Regulations. – Within six (6)
months from the promulgation of this Act, the Department, with the
Council for the Welfare of Children, the Office of Civil Registry
General, the Department of Justice, Office of the Solicitor General,
and two (2) private individuals representing child-placing and child-
caring agencies shall formulate the necessary guidelines to make
the provisions of this Act operative.
Section 25. Appropriations. – Such sum as may be necessary for
the implementation of the provisions of this Act shall be included in
the General Appropriations Act of the year following its enactment
into law and thereafter.
Section 26. Repealing Clause. – Any law, presidential decree or
issuance, executive order, letter of instruction, administrative order,
rule, or regulation contrary to, or inconsistent with the provisions of
this Act is hereby repealed, modified, or amended accordingly.
Section 27. Separability Clause. – If any provision of this Act is
held invalid or unconstitutional, the other provisions not affected
thereby shall remain valid and subsisting.
Section 28. Effectivity Clause. – This Act shall take effect fifteen
(15) days following its complete publication in any newspaper of
general circulation or in the Official Gazette.
Approved: February 25, 1998
Republic Act No. 8043
AN ACT ESTABLISHING THE RULES TO GOVERN INTER-
COUNTER ADOPTION OF FILIPINO CHILDREN, AND FOR
OTHER PURPOSES.
ARTICLE 1
GENERAL PROVISIONS
Section 1. Short Title. — This Act shall be known as the "Inter-
Country Adoption Act of 1995."
Sec. 2. Declaration of Policy. — It is hereby declared the policy of
the State to provide every neglected and abandoned child with a
family that will provide such child with love and care as well as
opportunities for growth and development. Towards this end, efforts
shall be exerted to place the child with an adoptive family in the
Philippines. However, recognizing that inter-country adoption may
be considered as allowing aliens not presently allowed by law to
adopt Filipino children if such children cannot be adopted by
qualified Filipino citizens or aliens, the State shall take measures to
ensure that inter-country adoptions are allowed when the same shall
prove beneficial to the child's best interests, and shall serve and
protect his/her fundamental rights.
Sec. 3. Definition of Terms. — As used in this Act. the term:
(a) Inter-country adoption refers to the socio-legal process of
adopting a Filipino child by a foreigner or a Filipino citizen
permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.
(b) Child means a person below fifteen (15) years of age
unless sooner emancipated by law.
(c) Department refers to the Department of Social Welfare and
Development of the Republic of the Philippines.
(d) Secretary refers to the Secretary of the Department of
Social Welfare and Development.
(e) Authorized and accredited agency refers to the State
welfare agency or a licensed adoption agency in the
countr y of the adopting parents which provide
comprehensive social services and which is duly
recognized by the Department.
(f) Legally-free child means a child who has been voluntarily or
involuntarily committed to the Department, in accordance
with the Child and Youth Welfare Code.
(g) Matching refers to the judicious pairing of the adoptive
child and the applicant to promote a mutually satisfying
parent-child relationship.
(h) Board refers to the Inter-country Adoption Board.
ARTICLE 2
THE INTER-COUNTRY ADOPTION BOARD
Sec. 4. The Inter-Country Adoption Board. — There is hereby
created the Inter- Country Adoption Board, hereinafter referred to as
the Board to act as the central authority in matters relating to inter-
country adoption. It shall act as the policy- making body for
purposes of carrying out the provisions of this Act, in consultation
and coordination with the Department, the different child-care and
placement agencies, adoptive agencies, as well as non-
governmental organizations engaged in child-care and placement
activities. As such, it shall:
(a) Protect the Filipino child from abuse, exploitation, trafficking and/
or sale or any other practice in connection with adoption which
is harmful, detrimental, or prejudicial to the child;
(b) Collect, maintain, and preserve confidential information about
the child and the adoptive parents;
(c) Monitor, follow up, and facilitate completion of adoption of the
child through authorized and accredited agency;
(d) Prevent improper financial or other gain in connection with an
adoption and deter improper practices contrary to this Act;
(e) Promote the development of adoption services including post-
legal adoption;
(f) License and accredit child-caring/placement agencies and
collaborate with them in the placement of Filipino children;
(g) Accredit and authorize foreign adoption agency in the
placement of Filipino children in their own country; and
(h) Cancel the license to operate and blacklist the child-caring and
placement agency or adoptive agency involved from the
accreditation list of the Board upon a finding of violation of any
provision under this Act.
Sec. 5. Composition of the Board. — The Board shall be composed
of the Secretary of the Department as ex officio Chairman, and six
(6) other members to be appointed by the President for a
nonrenewable term of six (6) years: Provided, That there shall be
appointed one (1) psychiatrist or psychologist, two (2) lawyers who
shall have at least the qualifications of a regional trial court judge,
one (1) registered social worker and two (2) representatives from
non- governmental organizations engaged in child-caring and
placement activities. The members of the Board shall receive a per
diem allowance of One thousand five hundred pesos (P1,500) for
each meeting attended by them: Provided, further, That no
compensation shall be paid for more than four (4) meetings a
month.
Sec. 6. Powers and Functions of the Board. — The Board shall have
the following powers and functions:
(a) to prescribe rules and regulations as it may deem reasonably
necessary to carry out the provisions of this Act, after
consultation and upon favorable recommendation of the different
agencies concerned with the child-caring, placement, and
adoption;
(b) to set the guidelines for the convening of an Inter-country
Adoption Placement Committee which shall be under the direct
supervision of the Board;
(c) to set the guidelines for the manner by which selection/matching
of prospective adoptive parents and adoptive child can be
made;
(d) to determine a reasonable schedule of fees and charges to be
exacted in connection with the application for adoption;
(e) to determine the form and contents of the application for inter-
country adoption;
(f) to institute systems and procedures to prevent improper
financial gain in connection with adoption and deter improper
practices which are contrary to this Act;
(g) to promote the development of adoption services, including
post-legal adoption services,
(h) to accredit and authorize foreign private adoption agencies
which have demonstrated professionalism, competence and
have consistently pursued non- profit objectives to engage in
the placement of Filipino children in their own country: Provided,
That such foreign private agencies are duly authorized and
accredited by their own government to conduct inter-country
adoption: Provided, however, That the total number of authorized
and accredited foreign private adoption agencies shall not
exceed one hundred (100) a year;
(i) to take appropriate measures to ensure confidentiality of the
records of the child, the natural parents and the adoptive
parents at all times;
(j) to prepare, review or modify, and thereafter, recommend to the
Department of Foreign Affairs, Memoranda of Agreement
respecting inter-country adoption consistent with the
implementation of this Act and its stated goals, entered into,
between and among foreign governments, international
organizations and recognized international non-governmental
organizations;
(k) to assist other concerned agencies and the courts in the
implementation of this Act, particularly as regards coordination
with foreign persons, agencies and other entities involved in the
process of adoption and the physical transfer of the child; and
(l) to perform such other functions on matters relating to inter-
country adoption as may be determined by the President.
ARTICLE 3
PROCEDURE
Sec. 7. Inter-Country Adoption as the Last Resort. — The Board
shall ensure that all possibilities for adoption of the child under the
Family Code have been exhausted and that inter-country adoption
is in the best interest of the child. Towards this end, the Board shall
set up the guidelines to ensure that steps will be taken to place the
child in the Philippines before the child is placed for inter- country
adoption: Provided, however, That the maximum number that may
be allowed for foreign adoption shall not exceed six hundred (600)
a year for the first five (5) years.
Sec. 8. Who May be Adopted. — Only a legally free child may be
the subject of inter-country adoption. In order that such child may
be considered for placement, the following documents must be
submitted to the Board:
(a) Child study;
(b) Birth certificate/foundling certificate;
(c) Deed of voluntary commitment/decree of abandonment/death
certificate of parents;
(d) Medical evaluation /history;
(e) Psychological evaluation, as necessary; and
(f) Recent photo of the child.
Sec. 9. Who May Adopt. — An alien or a Filipino citizen
permanently residing abroad may file an application for inter-
country adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27) years of age and at least sixteen
(16) years older than the child to be adopted, at the time of
application unless the adopter is the parent by nature of the
child to be adopted or the spouse of such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and
responsibilities of parental authority under his national laws, and
has undergone the appropriate counseling from an accredited
counselor in his/her country;
(d) has not been convicted of a crime involving moral turpitude;
(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and support and to
give the necessary moral values and example to all his children,
including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied
under Philippine laws, the U.N. Convention on the Rights of the
Child, and to abide by the rules and regulations issued to
implement the provisions of this Act;
(h) comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized
and accredited agency and that adoption is allowed under his/
her national laws; and
(i) possesses all the qualifications and none of the disqualifications
provided herein and in other applicable Philippine laws.
Sec. 10. Where to File Application. — An application to adopt a
Filipino child shall be filed either with the Philippine Regional Trial
Court having jurisdiction over the child, or with the Board, through
an intermediate agency, whether governmental or an authorized
and accredited agency, in the country of the prospective adoptive
parents, which application shall be in accordance with the
requirements as set forth in the implementing rules and regulations
to be promulgated by the Board.
The application shall be supported by the following documents
written and officially translated in English.
(a) Birth certificate of applicant(s);
(b) Marriage contract, if married, and divorce decree, if applicable;
(c) Written consent of their biological or adoptive children
above ten (10) years of age, in the form of sworn statement;
(d) Physical, medical and psychological evaluation by a duly
licensed physician and psychologist;
(e) Income tax returns or any document showing the financial
capability of the applicant(s);
(f) Police clearance of applicant(s);
(g) Character reference from the local church/minister, the
applicant's employer and a member of the immediate community
who have known the applicant(s) for at least five (5) years; and
(h) Recent postcard-size pictures of the applicant(s) and his
immediate family; The Rules of Court shall apply in case of adoption
by judicial proceedings.
Sec. 11. Family Selection/Matching. — No child shall be matched to
a foreign adoptive family unless it is satisfactorily shown that the
child cannot be adopted locally. The clearance, as issued by the
Board, with the copy of the minutes of the meetings, shall form part
of the records of the child to be adopted. When the Board is ready
to transmit the Placement Authority to the authorized and accredited
inter-country adoption agency and all the travel documents of the
child are ready, the adoptive parents, or any one of them, shall
personally fetch the child in the Philippines.
Sec. 12. Pre-adoptive Placement Costs. — The applicant(s) shall
bear the following costs incidental to the placement of the child;
(a) The cost of bringing the child from the Philippines to the
residence of the applicant(s) abroad, including all travel expenses
within the Philippines and abroad; and
(b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related expenses.
Sec. 13. Fees, Charges and Assessments.— Fees, charges, and
assessments collected by the Board in the exercise of its functions
shall be used solely to process applications for inter-country
adoption and to support the activities of the Board.
Sec. 14. Supervision of Trial Custody. — The governmental agency
or the authorized and accredited agency in the country of the
adoptive parents which filed the application for inter-country
adoption shall be responsible for the trial custody and the care of
the child. It shall also provide family counseling and other related
services. The trial custody shall be for a period of six (6) months
from the time of placement. Only after the lapse of the period of
trial custody shall a decree of adoption be issued in the said
country a copy of which shall be sent to the Board to form part of
the records of the child.
During the trial custody, the adopting parent(s) shall submit to the
governmental agency or the authorized and accredited agency,
which shall in turn transmit a copy to the Board, a progress report of
the child's adjustment. The progress report shall be taken into
consideration in deciding whether or not to issue the decree of
adoption.
The Department of Foreign Affairs shall set up a system by which
Filipino children sent abroad for trial custody are monitored and
checked as reported by the authorized and accredited inter-country
adoption agency as well as the repatriation to the Philippines of a
Filipino child whose adoption has not been approved.
Sec. 15. Executive Agreements. — The Department of Foreign
Affairs, upon representation of the Board, shall cause the
preparation of Executive Agreements with countries of the foreign
adoption agencies to ensure the legitimate concurrence of said
countries in upholding the safeguards provided by this Act.
ARTICLE 4 may be imposed for the same acts punishable under other laws, DIFFERENCE IN THE REQUIREMENTS
PENALTIES ordinances, executive orders, and proclamations.
INTER COUNTRY DOMESTIC ADOPTION
Sec. 16. Penalties. — (a) Any person who shall knowingly Sec. 17. Public Officers as Offenders. — Any government official, ADOPTION ACT OF 1995 OF 1998
participate in the conduct or carrying out of an illegal adoption, in employee or functionary who shall be found guilty of violating any of RA 8043 RA 8552
violation of the provisions of this Act, shall be punished with a the provisions of this Act, or who shall conspire with private
penalty of imprisonment ranging from six (6) years and one (1) day individuals shall, in addition to the above- prescribed penalties, be who may a) alien; or Filipino
to twelve (12) years and/or a fine of not less than Fifty thousand penalized in accordance with existing civil service laws, rules and adopt b) Filipino citizen 1. legal age
permanently residing 2. in possession of full civil
pesos (P50,000), but not more than Two hundred thousand pesos regulations: Provided, That upon the filing of a case, either
abroad rights capacity and legal
(P200.000), at the discretion of the court. For purposes of this Act, administrative or criminal, said government official, employee or
rights
an adoption is illegal if it is effected in any manner contrary to the functionary concerned shall automatically suffer suspension until 1. 27 yrs old, at least 16 3. good moral character
provisions of this Act or established State policies, its implementing the resolution of the case. years older than the 4. not been convicted of
rules and regulations, executive agreements, and other laws child to be adopted at any crime involving
pertaining to adoption. Illegality may be presumed from the ARTICLE 5 the time of the moral turpitude
following acts: FINAL PROVISIONS application (unless he 5. e m o t i o n a l l y a n d
(1) consent for an adoption was acquired through, or attended by Sec. 18. Implementing Rules and Regulations. — The Inter-country is a parent by nature of psychologically capable
coercion, fraud, improper material inducement; Adoption Board, in coordination with the Council for the Welfare of the child to be of caring for children
(2) there is no authority from the Board to effect adoption; Children, the Department of Foreign Affairs, and the Department of adopted) 6. at least 16 yrs older than
2. if married, must jointly the adoptee
(3) the procedures and safeguards placed under the law for Justice, after due consultation with agencies involved in child-care
file with spouse 7. may be waived if
adoption were not complied with; and and placement, shall promulgate the necessary rules and
3. (a) has capacity to act 1. a d o p t e r i s t h e
(4) the child to be adopted is subjected to, or exposed to danger, regulations to implement the provisions of this Act within six (6) and assume all rights biological parent
abuse and exploitation. months after its effectivity. and responsibilities of 2. s p o u s e i s t h e
parental authority adoptee’s parent
(b) Any person who shall violate established regulations relating to Sec. 19. Appropriations. — The amount of Five million pesos under his national
the confidentiality and integrity of records, documents and (P5,000,000) is hereby appropriated from the proceeds of the Lotto laws, (b) has
communications of adoption applications, cases and processes for the initial operations of the Board and subsequently the undergone counselling
shall suffer the penalty of imprisonment ranging from one (1) year appropriations of the same shall be included in the General from an accredited
and one (1) day to two (2) years, and/or a fine of not less than Five Appropriations Act for the year following its enactment.
thousand pesos (P5,000), but not more than Ten thousand pesos
(P10,000), at the discretion of the court. Sec. 20. Separability Clause. — If any provision, or part hereof is
held invalid or unconstitutional, the remainder of the law or the
A penalty lower by two (2) degrees than that prescribed for the provision not otherwise affected, shall remain valid and subsisting.
consummated felony under this Article shall be imposed upon the
principals of the attempt to commit any of the acts herein Sec. 21. Repealing Clause. — Any law, decree, executive order,
enumerated. administrative order or rules and regulations contrary to, or
Acts punishable under this Article, when committed by a syndicate inconsistent with the provisions of this Act are hereby repealed,
or where it involves two or more children shall be considered as an modified or amended accordingly.
offense constituting child trafficking and shall merit the penalty of
reclusion perpetua. Sec. 22. Effectivity Clause. — This Act shall take effect fifteen (15)
Acts punishable under this Article are deemed committed by a days after its publication in two (2) newspapers of general
syndicate if carried out by a group of three (3) or more persons circulation.
conspiring and/or confederating with one another in carrying out
any of the unlawful acts defined under this Article. Penalties as are
herein provided shall be in addition to any other penalties which ____________________________________________________________
 INTER COUNTRY DOMESTIC ADOPTION OF who may legally free child, under 15 1. those declared by the <PART OF PARENTAL AUTHORITY>
ADOPTION ACT OF 1995 1998 be years of age may be the DSWD to be available FOSTER CARE ACT OF 2012
RA 8043 RA 8552 adopted subject of inter-country for adoption (look at RA [REPUBLIC ACT NO. 10165]
adoption 9523)
counselor of his Alien: (inc above, plus) 2. legitimate S/D of one ARTICLE I
country 7. alien’s country has ff. documents must be spouse by the other GENERAL PROVISIONS
4. has not been diplomatic relations with submitted to the Board: spouse SECTION 1. Title. – This Act shall be known as the “Foster Care Act
convicted of a crime the RP 1. child study 3. illegitimate S/D of one of 2012”.
involving moral 8. alien has been living in 2. birth certificate/ spouse by the other
turpitude the Philippines for at foundling certificate spouse
5. eligible to adopt under least 3 continuous yrs SEC. 2. Declaration of Policy. – Article XV of the Constitution
3. deed of voluntary 4. person of legal age, if
his/her national law prior to the filing of commitment/decree of prior to the adoption, provides that the State shall defend the right of children to
6. in a position to provide adoption abandonment/death said person has been assistance, including proper care and nutrition, and special
the proper care and 9. alien must maintain such certificate of parents; consistently treated by protection from all forms of neglect, abuse, cruelty, exploitation or
support and to give the residence until the 4. medical evaluation/ the adopter as his/her other conditions prejudicial to their development.
necessary moral adoption decree is history own child since minority
values and example to entered 5. psychological 5. child whose adoption It is hereby declared the policy of the State to provide every child
all his children, 10. certified by his/her evaluation, as was previously who is neglected, abused, surrendered, dependent, abandoned,
including the child to diplomatic or consular necessary rescinded under sociocultural difficulties, or with special needs with an
be adopted office or any appropriate 6. recent photo of the 6. child whose biological/
7. agrees to uphold the gov’t agency that he/she alternative family that will provide love and care as well as
child adoptive parents died
basic rights of the child has legal capacity to opportunities for growth and development.
(no proceedings shall be
as embodied under adopt in his country initiated within 6 months
Phil. laws, the UN 11.certified by the same that from time of death The State shall guarantee that all the lights of the child enumerated
convention on Rights his national gov’t allows under Article 3 of Presidential Decree No. 603, otherwise known as
of the Child, and to be the adoptee to enter his/ consent - if married, required to need written consent of: “The Child and Youth Welfare Code”, as amended, and the rights
abide by the rules and her country required jointly adopt with the 1. adoptee (if over 10 yrs found under Article 20 of the United Nations Convention on the
regulations issued to wife old) Rights of the Child shall be observed.
implement the 2. biological parents/ legal
provisions of this Act Guardian: may adopt with need to written consent of guardian/proper gov’t
respect to the ward after the The State recognizes that in most cases, a child will benefit more
8. (a) comes from a the biological or adoptive instrumentality which
country with whom the termination of the children above 10 years of has legal custody of the from foster care than institutional care. Towards this end, the State
Philippines has guardianship and clearance age, in the form of sworn child shall systematize and enhance the foster care program in the
diplomatic relations of his/her financial statement 3. legitimate/adopted S country. It shall ensure that the foster family shall provide a
and (b) whose accountabilities and D, 10 years old and wholesome atmosphere to the foster child. Further to this end, the
government maintains over State recognizes that foster care is an important step towards the
a similarly authorized Husband and Wife: 4. illegitimate S and D, 10 child’s return and reintegration to his biological parents or placement
and accredited agency must jointly adopt except: years old and over with an adoptive family.
and (c) that adoption is 1) if one spouse seeks to (living with the adopter)
allowed under his/her adopt the legitimate son/ 5. spouse of the adopter
daughter of the other The State shall also protect the rights of the biological child of the
national laws
2) if one spouse seeks to applicatio 1. Philippine Regional Family Court foster family and ensure that in no case shall the child be
9. possesses all the
adopt his/her own n/ petition disadvantaged as a result of the placement of a foster child.
qualifications and none Trial Court having
where to
of the disqualifications illegitimate son/daughter be filed jurisdiction over the In all cases, the child’s right to health shall be upheld and protected.
provided herein and (with consent of the child; or
other applicable other spouse) 2. with the Board through SEC. 3. Definition of Terms. – For purposes of this Act, the
Philippines laws 3) if the spouses are an intermediate following terms are defined:
legally separated from agency (governmental
each other or an authorized and
accredited agency
(a)  Agency refers to any child-caring or child-placing institution
licensed and accredited by the Department of Social Welfare and
Development (DSWD) to implement the foster care program.
(b) Child refers to a person below eighteen (18) years of age, or one
who is over eighteen (18) but is unable to fully take care of or protect
oneself from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.
(c) Child Case Study Report refers to a written report prepared by a
social worker containing all the necessary information about a child.
(d) Child with Special Needs refers to a child with developmental or
physical disability.
(e)  Family refers to the parents or brothers and sisters, whether of
the full or half-blood, of the child.
(f)  Foster Care refers to the provision of planned temporary
substitute parental care to a child by a foster parent.
(g) Foster Child refers to a child placed under foster care.
(h) Foster Family Care License refers to the document issued by the
DSWD authorizing the foster parent to provide foster care.
(i) Foster Parent refers to a person, duly licensed by the DSWD, to
provide foster care.
(j)  Foster Placement Authority (FPA) refers to the document issued
by the DSWD authorizing the placement of a particular child with the
foster parent.
(k) Home Study Report refers to a written report prepared by a social
worker containing the necessary information on a prospective parent
or family member.
(l)  Matching refers to the judicious pairing of a child with foster
parent and family members based on the capacity and commitment
of the foster parent to meet the individual needs of the particular
child and the capacity of the child to benefit from the placement.
(m)  Parent refers to the biological or adoptive parent or legal
guardian of a child.
(n)  Placement refers to the physical transfer of the child with the
foster parent.
(o)  Relatives refer to the relatives of a child, other than family
members, within the fourth degree of consanguinity or affinity.
(p) Social Worker refers to the registered and licensed social worker
of the DSWD, local government unit (LGU) or agency.
ARTICLE II
ELIGIBILITY
SEC. 4. Who May Be Placed Under Foster Care. – The following
may be placed in foster care:
(a) A child who is abandoned, surrendered, neglected, dependent or
orphaned;
(b) A child who is a victim of sexual, physical, or any other form of
abuse or exploitation;
(c) A child with special needs;
(d) A child whose family members are temporarily or permanently
unable or unwilling to provide the child with adequate care;
(e) A child awaiting adoptive placement and who would have to be
prepared for family life;
(f) A child who needs long-term care and close family ties but who
cannot be placed for domestic adoption;
(g) A child whose adoption has been disrupted;
(h) A child who is under socially difficult circumstances such as, but
not limited to, a street child, a child in armed conflict or a victim of
child labor or trafficking;
(i) A child who committed a minor offense but is released on
recognizance, or who is in custody supervision or whose case is
dismissed; and
(j) A child who is in need of special protection as assessed by a
social worker, an agency or the DSWD.
Provided, That in the case of (b), (c), (f), (h), (i), and (j), the child
must have no family willing and capable of caring and providing for
him.
SEC. 5. Who May Be a Foster Parent. – An applicant who meets
all of the following qualifications may be a foster parent:
(a) Must be of legal age;
(b) Must be at least sixteen (16) years older than the child unless the
foster parent is a relative;
(c) Must have a genuine interest, capacity and commitment in
parenting and is able to provide a familial atmosphere for the child;
(d) Must have a healthy and harmonious relationship with each
family member living with him or her;
(e) Must be of good moral character;
(f) Must be physically and mentally capable and emotionally mature;
(g) Must have sufficient resources to be able to provide for the
family’s needs;
(h) Must be willing to further hone or be trained on knowledge,
attitudes and skills in caring for a child; and
(i) Must not already have the maximum number of children under his
foster care at the time of application or award, as may be provided in
the implementing rules and regulations (IRR) of this Act.
Provided, That in determining who is the best suited foster parent,
the relatives of the child shall be given priority, so long as they meet
the above qualifications: Provided, further, That an alien possessing
the above qualifications and who has resided in the Philippines for at
least twelve (12) continuous months and maintains such residence
until the termination of placement by the DSWD or expiration of the
foster family license, may qualify as a foster parent.
ARTICLE III
PARENTAL AUTHORITY OF FOSTER PARENTS
SEC. 6. Parental Authority of a Foster Parent. – Foster parents
shall have the rights, duties and liabilities of persons exercising
substitute parental authority, as may be provided under the Family
Code over the children under their foster care.

SEC. 7. Limitations on Parental Authority of Foster Parents. –
Foster parents shall only have the rights of a person with special
parental authority to discipline the foster children as defined under
Section 233 of the Family Code, insofar as it prohibits the infliction of
corporal punishment upon the child.
ARTICLE IV
PROCEDURE
SEC. 8. Recruitment and Development of Foster Parents. – To
recruit applications for foster care, the DSWD shall reach out to
various communities and LGUs and work preferably with the Local
Council for the Protection of Children (LCPC).
SEC. 9. Submission of Home Study Report. – The social worker
shall make a detailed Home Study Report of an applicant’s
background and circumstances, carried out in a series of planned
visits and interviews, in order to determine if the applicant meets the
basic requirements for foster care and is suitable to become a foster
parent.
SEC. 10. Issuance of License. – The DSWD shall issue a Foster
Family Care License based on the Home Study Report submitted by
the agency to determine the motivations, capacities and potentials
for development of applicants. The license is renewable every three
(3) years unless earlier revoked by the DSWD.
SEC. 11. Matching. – Matching shall be done by the agency only
after the child case study and the home study have been conducted,
save for exceptions to be determined by the DSWD, taking into
consideration the best interests of the child.
The child case study report shall establish the needs of the child for
consideration in the selection of the foster parent. Likewise, the
Home Study Report shall establish said foster parent’s capacity and
resources to provide a safe, secure and losing home to the child.
SEC. 12. Placement. – The physical transfer of the child to the
foster parent shall be allowed only after the FPA has been issued,
save for exceptions to be determined by the DSWD, taking into
consideration the best interest of the child.
SEC. 13. Supervision of Foster Placement. – Supervised foster
placement begins as soon as the foster parent receives the child into
his care. During the foster placement, the social worker shall
conduct regular home visits to monitor the child’s adjustment in the
foster home and shall submit progress reports to the DSWD.
In case of incident, injury or death of a foster child, or if he runs away
or gets lost, such case shall be reported immediately to the agency,
which, in turn, shall immediately report the same to the DSWD.
SEC. 14. Termination of Placement. – Termination of placement
shall be done by the DSWD, upon recommendation of the agency,
on the following grounds:
(a) Return of the child to biological parents;
(b) Placement for adoption of the child;
(c) Death of the child;
(d) Death of both foster parents;
(e) Expiration of the FPA; and
(f) In all cases where placement becomes prejudicial to the
welfare of the child, such as, but not limited to, abandonment,
maltreatment, sexual assault, violence or other forms of abuse.
Provided, That in the case of (f), the foster child, with the assistance
of a registered social worker, shall have the option to apply for
termination of placement.
ARTICLE V
LONG-TERM FOSTER PLACEMENT
SEC. 15. Long-Term Foster Placement Authority. – If a child has
been under the care of a foster parent for a period of at least seven
(7) years, the said foster parent may apply for Long-Term Foster
Placement Authority (LTFPA), subject to the following conditions:
(a) The child’s return to his biological parents or placement in
an adoptive family is not imminent;
(b) The foster parent continues to possess the qualifications
required under this Act and a valid foster family care license for
the entire duration of the foster care;
(c) The child, if ten (10) years of age or over, duly assisted by a
social worker, gives written consent for long-term stay with the
foster parent; and
(d) Aside from the regular monitoring visits, the DSWD shall
reassess and reevaluate the foster home situation every three
(3) years, to determine whether it is in the best interest of the
child to continue living in the foster home on a long-term basis.
LTFPA grants the foster parent custody over the foster child without
the requirement of the eventuality of adoption of the latter by the
former. During this period, the foster child shall enjoy the rights of a
child under Article 3 of the Child and Youth Welfare Code, and under
other laws: Provided, That there shall be no mandatory rights of
succession in favor of the foster child.
SEC. 16. Long-Term Foster Care Commitment. – Taking into
consideration the stability and best interest of the foster child, a
foster parent, who unilaterally terminates the LTFPA before the foster
child reaches the age of majority or finishes tertiary education, shall
make provisions for the education and basic needs of the foster
child, in accordance with the standards in which the child has been
raised or has become accustomed to, within the said period:
Provided, That the faster parent has the means to support the foster
child in keeping with the financial capacity of the family.
ARTICLE VI
ADOPTION OF A FOSTER CHILD
SEC. 17. Conditions. – A foster parent may adopt his foster child
subject to the following conditions:
(a) The foster parent must have all the qualifications as provided for
by Republic Act No. 8552, otherwise known as the Domestic
Adoption Act of 1998 or Republic Act No. 8043, otherwise known as
the Inter-Country Adoption Act of 1995, as the case may be;
(b) The trial custody, as required in adoption, may be waived:
Provided, That a harmonious relationship exists between the child
and his foster parent and family members; and
(c) The procedures for adoption, for purposes of this Act, shall be
governed by Domestic Adoption Act of 1998 or Inter-Country
Adoption Act of 1995, as the case may be.
ARTICLE VII
LOCAL GOVERNMENT UNITS
SEC. 18. Role of Local Government Units (LGUs). – LGUs shall
promote the foster care system in their respective territorial
jurisdictions.
SEC. 19. Funding. – In accordance with the Local Government
Code, LGUs shall primarily be responsible for social welfare services
which include foster care programs. However, the national
government shall provide financial support, priority given to third
(3rd), fourth (4th) and fifth (5th) class municipalities.
SEC. 20. Seminars and Trainings. – The DSWD, in coordination
with the Department of the Interior and Local Government (DILG), is
hereby mandated to develop and provide programs to ensure the
awareness and responsiveness of local government officials in the
promotion and development of the foster care system in every city,
municipality or barangay.
ARTICLE VIII
ASSISTANCE AND INCENTIVES
SEC 21. Assistance to a Foster Child. –
(a) Foster Child Subsidy. – A foster child, through the agency,
shall be entitled to a monthly subsidy from the DSWD, subject to
existing government auditing rules and regulations. The subsidy
is primarily aimed at supporting the expenses of the child to
lessen the financial burden on the foster parent: Provided, That
support may be waived if the foster parent is capable of
supporting the foster child.
(b) Health Insurance. – A foster child shall automatically be a
PhilHealth beneficiary of the foster parent and as such, entitled to
health insurance benefits. If the foster parent is not a PhilHealth
member, he must seek enrollment with PhilHealth. LGUs and
agencies shall provide assistance to the foster parents to ensure
enrollment.
SEC. 22. Assistance and Incentives to Foster Parent. –
(a) Support Care Services. – The DSWD, the social service units of
LGUs and agencies shall provide support care services to include,
but not limited to, counseling, visits, training on child care and
development, respite care, skills training and livelihood assistance.
(b) Additional Exemption for Dependents. – For purposes of claiming
the Twenty-five thousand pesos (PhP 25,000.00) additional
exemption for foster parents for each dependent not exceeding four
(4) as provided for by Republic Act No. 9504, the definition of the
term “dependent” under Section 35(B) of the National Internal
Revenue Code (NIRC) of 1997 shall be amended to include “foster
child”: Provided, That all other conditions provided for under the
aforesaid section of the NIRC of 1997 must be complied with:
Provided, further. That this additional exemption shall be allowed
only if the period of foster care is at least a continuous period of one
(1) taxable year.
For purposes of this section, only one (1) foster parent can treat the
foster child as a dependent for a particular taxable year. As such, no
other parent or foster parent can claim the said child as a dependent
for that period.
SEC. 23. Incentives to Agencies. – Agencies shall be entitled to
the following tax incentives:
(a) Exemption from Income Tax. – Agencies shall be exempt from
income tax on the income derived by it as such organization
pursuant to Section 30 of the NIRC of 1997, as implemented by
Revenue Regulation (RR) No. 13-98; and
(b) Qualification as a Donee Institution. – Agencies can also apply
for qualification as a donee institution.
SEC. 24. Incentives to Donors. – Donors of an agency shall be
entitled to the following:
(a) Allowable Deductions. – Donors shall be granted allowable
deductions from its gross income to the extent of the amount
donated to agencies in accordance with Section 34(H) of the NIRC
of 1997; and
(b) Exemption from Donor’s Tax. – Donors shall be exempted from
donor’s tax under Section 101 of the NIRC of 1997: Provided, That
not more than thirty percent (30%) of the amount of donations shall
be spent for administrative expenses.
ARTICLE IX
PENALTIES
SEC. 25. Penalties. –
(a) Any foster parent, found to be committing any act of neglect,
abuse, cruelty, or exploitation and other similar acts prejudicial to the
child’s development, shall be penalized in accordance with Republic
Act No. 7610, otherwise known as “An Act Providing For Stronger
Deterrence and Special Protection Against Child Abuse, Exploitation
and Discrimination, Providing For Its Violation, and For Other
Purposes”, and other applicable laws.
(b) An agency which violates Sections 11, 12, 13 or any other
provision of this Act and its IRR shall suffer the following penalties:
(1) For the first violation, a fine of not less than Twenty-five thousand
pesos (PhP 25,000.00) but not exceeding Fifty thousand pesos (PhP
50,000.00); and
(2) For any subsequent violation, a fine of not less than Fifty
thousand pesos (PhP 50,000.00) but not exceeding One hundred
thousand pesos (PhP 100,000.00), and revocation of license to
operate.
(c) Any person, natural or juridical, other than the foster parent or
any agency, violating any provision of this Act and its IRR shall be
penalized with imprisonment of one (1) month to six (6) years,
depending on the gravity of the offense or a fine of not less than Ten
thousand pesos (Php 10,000.00) but not more than One hundred
thousand pesos (PhP 100,000.00), or both, at the discretion of the
court.
(d) If the offender is a public official, the court may impose the
additional penalty of disqualification from office in addition to the
penalties provided in the preceding paragraph.
ARTICLE X
FINAL PROVISIONS
SEC. 26. Foster Care Committee. – The Regional Child Welfare
Specialist Group of the DSWD shall serve as the Foster Care
Committee, which shall have the following functions:
(a) Review and deliberate issues affecting the placement of a
particular child;
(b) Make recommendations to resolve any dispute between and
among the agency, the parents, the foster parents and the child;
(c) Monitor the implementation, review, and recommend
changes in policies concerning foster care and other matters
related to the child’s welfare;
(d) Submit to the Secretary of the DSWD and to Congress an
annual report of the policies, programs and activities relative to
the implementation of this Act; and
(e) Perform such other functions and duties as may be
prescribed by the DSWD.
SEC. 27. Appropriation. – The amount necessary to carry out the
provisions of this Act shall be included in the General Appropriations
Act of the year following its enactment into law and thereafter. An
initial amount of Twenty-five million pesos (PhP 25,000,000.00) shall
be allocated for the first year of its operation. Such sum shall be
intended to support the foster care programs of the DSWD and
agencies.
SEC. 28. Implementing Rules and Regulations. – The DSWD, as
lead agency, the Department of Justice (DOJ), the Department of
Health (DOH), the Bureau of Internal Revenue (BIR), the Council on
Welfare of Children (CWC), the DILG and other concerned
government agencies, in consultation with agencies are hereby
mandated to prepare and draft the IRR to operationalize the
provisions of this Act within (3) months from its effectivity.
SEC. 29. Suppletory Clause. – The provisions of Executive Order
No. 209, otherwise known as the Family Code of the Philippines and
other applicable laws, shall have suppletory application to this Act.

SEC. 30. Repealing Clause. – Any law, presidential decree,

issuance, executive order, letter of instruction, administrative order,
rule and regulation contrary to or inconsistent with the provisions of
this Act is hereby repealed, modified or amended accordingly.

SEC. 31. Separability Clause. – If any provision of this Act is held

invalid or unconstitutional, the other provisions not affected hereby
shall remain valid and subsisting.

SEC. 32. Effectivity. – This Act shall take effect fifteen (15) days
after its publication in two (2) newspapers of general circulation or in
the Official Gazette.

TITLE VIII Kinds of Support
SUPPORT Article 195. Subject to the provisions of the
As to the amount 1. natural support - that which is absolute succeeding articles, the following are obliged
necessary and indispensable for the
Article 194. Support comprises everything subsistence of the recipient (food,
to support each other to the whole extent set
indispensable for sustenance, dwelling, dwelling, clothing) forth in the preceding article:
clothing, medical attendance, education and
2. civil support - that which is necessary for (1) The spouses;
the recipient to maintain himself in
transportation, in keeping with the financial accordance with his condition and (2) Legitimate ascendants and descendants;
capacity of the family.
circumstances in his civil and social life (3) Parents and their legitimate children and
(education, moderate expenses for social
The education of the person entitled to affairs)
the legitimate and illegitimate children of
be supported referred to in the preceding the latter;
As to source 1. legal support - that which is provided for
paragraph shall include his schooling or by law
(4) Parents and the illegitimate children and
training for some profession, trade or vocation, 2. voluntary or patrimonial support - what the legitimate and illegitimate children of
e v e n b e y o n d t h e a g e o f m a j o r i t y.
is created by the will of man manifested by the latter;
contract or by unilateral acts inter vivos or
Transportation shall include expenses in going mortis causa (5) Legitimate brothers and sisters, whether of
to and from school, or to and from place of
3. judicial support - that which springs from the full or half-blood.
decisions of tribunals and may either be
work. definite or provisional (support pendente
lite)
Who are obliged to support each other to the whole extent
As to duration 1. permanent - that which refers to the provided in Article 194?
Duty to Provide Natural Support
- co terminus with parental authority physical needs of the recipient and lasts 1. Spouses
during his lifetime to be given when he ‣ springs from the fact of marriage
- subsists as long as the child is not emancipated except
needs it ‣ Art. 68, FC - Spouses are obliged to render mutual help and
education 2. temporary - refers to the recipient’s support
intellectual development and generally ‣ valid marriage = right to support
When support ceases (Art. 300, NCC) lasts during the minority of the recipient ‣ annulment = no more obligation to support
(1) the death of the obligor or giver
‣ Mangoma vs. Macadaeg - An adulterous wife loses the right
(2) when the resources of the obligor have been reduced to a point
to be supported. Adultery is a valid defense against the
where he cannot give the support without neglecting his own
Characteristics of Support wife’s claim for support.
needs and those of his family
1. Personal ‣ both spouses in pari delicto = deemed to have both acted in
(3) when the recipient no longer needs the allowance for his
2. It is intransmissible good faith and therefore can ask for support
subsistence
3. Not subject to attachment or execution - not applicable in Arts. 44, 147 and 148, FC
(4) when the recipient has committed some act which gives rise to
4. Never fixed; always subject to adjustment depending on the ‣ Dela Cruz vs. Santillana - Support for wife enjoys priority.
disinheritance
means of the fiver and the needs of the recipient The husband therefore cannot in an action for support set
5. Reciprocal on the part of those who are by law bound to up the defense that he had other persons to support.
Additional Grounds (Family Code)
support each other - exception: when the concurrent obligees are the
(1) illegitimate sibling’s need for support because of causes
6. Demandable from the time it is needed spouse and a child subject to parental authority, the
imputable to his or her own fault or negligence (Art. 195, FC)
7. Demandable even if the recipient is beyond the age of child shall be preferred when the obligor has no
(2) obligation to mutually support the spouse ceases when the
majority sufficient means to satisfy all claims
legal separation/annulment/nullity has become final (Art. 198,
8. Demandable even if the recipient is already married 2. Legitimate ascendants and descendants
FC)
‣ have to follow the order of support under Article 199, FC
- in legal separation, the court may oblige guilty spouse to
support innocent spouse
 ‣ Fransisco vs. Zandueta - The relationship between the
parties must first be established before support can be
demanded.
‣ Mangulabnan vs. IAC - Filiation may be established
provisionally by affidavits to justify support pendente lite
‣ Castillo vs. Castillo - Where a mother delivered her child of
tender years to other persons and never took care of her,
having abandoned her entirely, such mother had
relinquished all parental claims and is not entitled to support
from the child who later became well-off financially.
‣ Jocson vs. Empire Insurance Co. - The right to support does
not arise from mere relationship but from imperative
necessity. If the child therefore has sufficient property of his
own, the right to be supported does not exist. The father can
charge expenses for the child’s food, clothing and
education to the child’s property.
‣ Quimiquing vs. Icao - The unborn child has a right to
support from its progenitors even if the said child is only “en
ventre de sa mere”.
3. Parents and their legitimate children and the latter’s
children
‣ Mendoza vs. Ibanez - With regard to illegitimate children,
the weight of authorities under the Civil Code is that it is
essential that they have been recognized or acknowledged
first by their parents before they could be entitled to
suppor t. In the absence of such recognition or
acknowledgement they are not entitled to support.
4. Parents and their illegitimate children and the latter’s
children
‣ illegitimate children are entitled to support and successional
rights
‣ Sy Chap vs. Funa - The obligation to support illegitimate
children does not devolve only on the mother but also on the
father. So even if the children of the defendant are in the
custory of their mother, the defendant is not relieved of his
duty to contribute to the support of the children.
5. Legitimate brothers and sisters, whether of the full of half-
blood
‣ this shall arise only when there are no descendants or
ascendants capable of granting the support needed; follow
rules of priority under Article 199
‣ Coquia vs. Baltazar - Uncles and aunts do not have the duty
to support their nephews or nieces whether legitimate or
illegitimate.
‣ full blood brother/sister = entitled to support for the whole
extent
‣ illegitimate brother/sister = not entitled to support if the
need arises due to a cause imputable to the negligence or
his or her fault
Application for Support Pendente Lite
‣ Mangonon vs. CA - Because of the provisional nature of an
application for support pendente lite, a court does not need to
delve fully into the merits of the case before it can settle an
application for this relief.
De Asis vs. CA
February 15, 1999
future support cannot be subject to compromise; Vircel
Andres’s action can still prosper amidst the dismissal (futile
and useless; due to both parties’ manifestation) of the first
action
Facts:
1. Vircel Andres as the legal guardian/mother of Glen Camil
Andres de Asis, filed an action for the maintenance and support
against Manuel de Asis.
2. Manuel de Asis - father of Glen Camil; refused to acknowledge
Glen Camil
3. Both parties agreed to move for the dismissal of the case.
According to the petitioner, it seems futile and a useless
exercise to claim to support from defendant.
4. after 6 years, Vircel files another action for support against
Manuel
5. RTC ordered Manuel to provide Php 2,000 a month for support
in arrears, Php 5,000 monthly support pendente lite, and Php
5,000 as monthly allowance
6. Petitioner De Asis moved for the case to be dismissed on the
ground of res judicata, alleging that the case is barred by the
dismissal of the first case
7. RTC states that res judicata is inapplicable in an action for
support. A renunciation or waiver of future support is prohibited
by law
8. CA dismissed De Asis’s motion as well
Held:
W/N future support can be renounced / waived
No. According to Article 301 of the Civil Code, The right to
receive support can neither be renounced nor transmitted to a 3rd
person. Neither can it be compensated with what the recipient owes
the obligor.
Future support cannot be the subject of a compromise.
Article 2035 provides that no compromise upon the following
questions shall be valid: (1) civil status of persons, (2) the validity of
a marriage or legal separation, (3) any ground for legal separation,
(4) future support, (5) jurisdiction of courts, (6) future legitime.
Why? According to Tolentino, the right to support being
founded upon the need of the recipient to maintain his
existence, he is not entitled to renounce or transfer the right for
this would mean sanctioning the voluntary giving up of life
itself. The right to life cannot be renounced; hence, support,
which is the means to attain the former, cannot be renounced.
To allow renunciation or transmission or compensation of the
family right of a person to support is virtually to allow eithter suicide
or the conversion of the recipient to a public burden. This is
contrary to public policy.
The manifestation or the agreement entered into between the
petitioner and respondent’s mother for the dismissal of the
complaint for maintenance and support conditioned upon the
dismissal of the counterclaim is in the nature of a compromise which
cannot be countenanced. It violates the prohibition against any
compromise of the right to support.
In order to claim support, filiation and paternity must first
be shown between the claimant and the parent. However,
paternity and filiation or the lack of the same is a relationship
that must be judicially established and it is for the court to
declare its existence or absence. It cannot be left to the will or
agreement of the parties.
W/N the case is barred due to the dismissal of the lower court
on the basis of the manifestation of both parties.
No. In Advincula vs. Advincula, the Court ruled that an action
for support can be brought, notwithstanding the fact the previous
case filed against the same defendant was dismissed. The right of
the plaintiff-appellant to reiterate her suit for support and
acknowledgement is available, as her needs arise. Once the needs
of plaintiff arise, she has the right to bring an action for support, for
it is only then that her cause of action accrues. Since the former
dismissal was predicated upon a compromise, the
acknowledgement which affects the civil status of persons and
future support, cannot be the subject of compromise. Hence, the
first dismissal cannot have force and effect and cannot bar the filing
of another action, asking for the same relief against the same
defendant.
Dolina vs. Vallecera
for a grant of legal support, mother must file a proper action for
compulsory recognition of an illegitimate child or in an action
for support and not in a case for an issuance of a temporary
protection due to domestic abuse pursuant to RA 9262
December 15, 2010
Facts:
1. In an action for the issuance of a temporary protection due to
woman and child abuse filed by Cherryl Dolina against
respondent Glenn Vallecera, the petitioner also asks for the
support of their child.
2. Respondent claimed that
(a) Dolina’s petition was essentialy one for financial support
rather than for protection against woman and child abuses.
(b) he was not the father of the child
(c) signature in the Birth Certificate was not his
(d) petition is a harassment suit intended to force him to
acknowledge the child as his and give it financial support
(e) Vallecera had never lived nor has been living with Dolina
3. RTC dismissed the petition because there has no been no prior
judgement exists establishing the filiation of Dolina’s son and
granting him the right of support as basis for an order to compel
the giving of such support.
4. RTC denied Dolina’s Motion for Reconsideration
Held:
W/N the RTC correctly dismissed Dolina’s action for temporary
protection and denied her application for temporary support for
her child
SC denies the petition and affirms RTC decision
Dolina evidently filed the wrong action to obtain support for her
child. Although, the issuance of a protection order against the
respondent in the case can include the grant of legal support for the
wife and the child, this assumes that both are entitled to a
protection order and to legal support.
RTC found out that the true object of her action was to get
financial support from Vallecera for her child, her claim being that
he is the father.
To be entitled to legal support, petitioner must, in proper action,
first establish the filiation of the child, if the same is not admitted or
acknowledged. Dolina’s remedy is to file for the benefit of her child
an action against Vallecera for compulsory recognition in order to
establish filiation and then demand support. Alternatively, she may
directly file an action for support, where the issue of compulsory
recognition may be integrated and resolved.
While the Court is mindful of the best interests of the child in
cases involving paternity and filiation, it is just as aware of the
disturbance that unfounded paternity suits cause to the privacy and
peace of the putative father’s legitimate family. Vallecera disowns
Dolina’s child and denies having a hand in the preparation and
signing of its certificate of birth. This issue has to be resolved in an
appropriate case
Ar ticle 196. Brothers and sisters not
legitimately related, whether of the full or half-
blood, are likewise bound to support each
other to the full extent set forth in Article 194,
except only when the need for support of the
brother or sister, being of age, is due to a
cause imputable to the claimant’s fault or
negligence.
General Rule: Brothers and sisters not legitimately related,
whether of the full or half blood are likewise bound to support each
other to the full extent set forth in Art. 194
Exception: when the need for support of the brother or sister, being
of age, is due to a cause imputable to the claimant’s fault or
negligence
Article 197. For the support of the legitimate
ascendants; descendants, whether legitimate
or illegitimate; and brothers and sisters,
whether legitimately or illegitimately related,
only the separate property of the person
obliged to give support shall be answerable
provided that in case the obligor has no
separate property, the absolute community or
the conjugal partnership, if financially
capable, shall advance the support, which
shall be deducted from the share of the
spouse obliged upon the liquidation of the
absolute community or of the conjugal
partnership.
Who are covered by this article?
1. legitimate ascendants
2. descendants, whether legitimate or illegitimate
3. brothers and sisters, whether legitimately or illegitimately related
➡ Source of support: separate property
➡ no separate property: spouse obliged to give support shall make
advances from the ACP or CPG
- ACP: Article 94, par. 9
- CPG: Article 122, par. 3 (the responsibilities in Art. 121 must
be covered first)
Article 198. During the proceedings for legal
separation or for annulment of marriage, and
for declaration of nullity of marriage, the
spouses and their children shall be supported
from the properties of the absolute community
or the conjugal property. After the final
judgement granting the petition, the obligation
of mutual support between the spouses
ceases. However, in case of legal separation,
the court may order that the guilty spouse
shall give support to the innocent one,
specifiying the terms of such order.
Support Pendente Lite
In proceedings for (1) legal separation, (2) annulment of marriage
and (3) declaration of nullity of marriage
➡ support shall come from the ACP or CPG
Reyes vs. Ines-Luciano - In determining the amount to be awarded
as support pendente lite, it is not necessary to go fully into the
merits of the case, it being sufficient that the court ascertain the
kind and amount of evidence which it may deem sufficient to enable
it to justly resolve the application, one way or the other, in view of
the merely provisional character of the resolution of the entered.
Mere affidavit may satisfy the court to pass upon the application for
support pendente lite. It is enough that the facts be established by
affidavits or other documentary evidence appearing in the record.
Lerma vs. CA
Facts:
Spouse was convicted of adultery, was the one who filed a case
against her husband for legal separation and during the pendency
of the suit, invoked the provision of Article 292 of the FC, and
whether the other spouse contended that such adulterous act of the
spouse is a defense to successfully resist from giving support
pendente lite.
Held:
While adultery may be a defense in an action for personal
support, it is not a defense when the support is to be taken from
the conjugal partnership property. First, Article 292 is not in
itself the source of the legal right to receive support. It merely
states that the support, not only of the spouses but also of
the children, shall be taken from the conjugal property during
the pendency of the legal separation proceeding. It does not
preclude the loss of such right in certain cases. Second, the said
article contemplates the pendency of a court action, and
inferentially at least, a prima facie showing that the action will
prosper. For if the action is shown to be groundless, the mere
filing thereof will not necessarily set Art. 292 in operation. This is
also the sense of Section 5, Rule 61, which requires, among other
things, when support pendente lite is applied for, that the court
determine possibly “the probable outcome of the case.”
The right to separate support or maintenance, even from
the CP, presupposes the existence of a justifiable cause for the
spouse claiming such right to live separately. A petition in bad
faith, such as that filed by one who is himself or herself guilty of
an act which constitutes a ground for legal separation at the
instance of the other spouse, cannot be considered as within the
intendment of the law granting support.
What if there is no CPG/ACP? Can one ask for support from
the other?
Tolentino:
if annulment/declaration of nullity = yes, because the marriage is
still subsisting
if legal separation = the defendant cannot ask support pendente
lite from the plaintiff, because the cause for legal separation
committed by the defendant would be a ground for the
termination of his or her right to support.
Article 199. Whenever two or more persons
are obliged to give support, the liability shall
devolve upon the following persons in the
order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree
(4) The brothers and sisters.
Order of liability for support
(1) The spouse
‣ exception: when he or she concurs with a child subject of
parental authority, in which case the latter is preferred (Art.
200, 3rd par., FC)
(2) The descendants in the nearest degree
(3) The ascendants in the nearest degree
(4) The brothers and sisters
Agustin vs. CA - Action for support may be integrated in an action
for recognition.
Article 200. When the obligation to give
support falls upon two or more persons, the
payment of the same shall be divided
between them in proportion to the resources
of each.
However, in case of urgent need and
by special circumstances, the judge may
order only one of them to furnish the support
provisionally, without prejudice to his right to
claim from the other obligors the share due
from them.
When two or more recipients at the
same time claim support from one and the
same person legally obliged to give it, should
the latter not have sufficient means to satisfy
all claims, the order established in the
preceeding article shall be followed, unless
the concurrent obligees should be the spouse
and a child subject to parental authority, in
which case the child shall be preferred.
When to apply this provision: when there are 2 or more obligors
‣ payment of the support shall be divided between them in
proportion to the resources of each
‣ exception: when there is an urgent need and by special
jusitifying circumstances, the court may order only one of them to
furnish the support provisionally with right of reimbursement from
the other obligors
Mangonon vs. CA
grandfather can be liable for the financial support of his
grandchildren if the parents are incapable of doing so;
Fransisco is liable for the college educational support of Rica
and Rina
June 30, 2006
Facts:
1. Petitioner Belen Mangonon and Respondent Frederico Delgado
were civilly married
2. Marriage annulled by the QC Juvenile Domestic Relations Court
for their marriage was solemnized without the required parental
consent
3. Rica and Rina were born 7 months later
4. Belen files a petition for support of the twins. Specificallly, college
educational support. She claims that Rica and Rina are the
legitimate daughters of Frederico. However, Frederico did not
sign his daughters’ birth certificates.
5. Belen invokes Articles 174 [legitimate children’s rights] and
195(b) in relation to Article 191(1) and (2) and 199(c) [whenever
2 or more are obliged to give support] of the Family Code.
✓ in case of default on the part of the parents, the
obligation to provide support falls upon the
grandparents
✓ respondent Frederico, or in his default, respondent
Fransisco (grandfather) should be orderedto provide
general and educational support for Rica and Rina in
the amount of US $50,000 more or less/ year
6. Fransisco’s defense was that:
(a) birth certificates were not signed
(b) legitimacy must first be established; no basis to claim
support until a final and executory judicial declaration
has been made as to the civil status of the children
(c) whatever good deeds he may have done to Rica and
Rina was founded on pure acts of Christian charity
(d) obligation must be borne by those more closely related
to the recipient (Belen and her 2nd husband who
voluntary assumed the duties and responsibilities of a
natural father)
(e) even if Frederico is liable, he can’t afford it
7. RTC granted a Php10,000 per month support to the twins
8. Petitioner appealed to the CA which affirmed the holding of the
RTC
9. Petitioner brings the case to the SC
10.College loans were taken out by the petitioner
11.Petitioner claims
(a) Since Frederico has insufficient funds to support the twins,
Fransisco should support them.
(b) Fransisco has the financial capability to help defray the
cost of Rica and Rina’s schooling, CA erred in just giving
her Php5,000 each per month
12.Respondent Fransisco claims
(a) Trial court was correct in declaring that petitioner and
respondent Frederico are the ones who should support the
twins pursuant to Art. 199
(b) Petitioner was able to get a loan
(c) If he could be liable for support, he has the option to fulfill
the obligation either by paying the support or receiving and
maintaining in the dwelling here in the Philippines the
person claiming support
(d) twin daughters are US citizens, they cannot invoke the
Family Code provisions on support as laws relating to
family rights, duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the
Philippines, even though living abroad (Art. 15 of the Civil
Code)
13. Respondent Frederico
(a) denies that he sired Rica and Rina
(b) if he could be liable, he has the option to pay the support
or receive and maintain in the dwelling here in the
Philippines the persons claiming support
Held:
W/N the twins are the legitimate children of Frederico
The petitioner was able to establish, by prima facie proof, the
filiation of her twin daughters to private respondents and the twins’
entitlement to support pendente lite.
1. Rica and Rina were in constant communication with their lolo via
letters wherein:
- Fransisco referred to them as Rina and Rica Delgado
- the twins called him Lolo Paco
2. Fransisco sent Rica and Rina to HK when they visited the
Philippines
W/N the support should be borne by Fransisco
Fransisco should be liable for the support of Rina and Rica.
1. Frederico and Belen are incapable of proving for Rica and
Rina’s college education:
(i) Frederico has insufficient funds to support his
daughters
(ii) If Belen had the means to provide for her children’s
college education, she wouldn’t have to take out a
loan
2. Fransisco is the Chairman of Citadel Corporation
3. Fransisco owns real property abroad
➡ He has enough funds to support his granddaughers
W/N the twins should just live with Fransisco in pursuant to Art.
204 of the Family Code.
The Court believes that respondent Fransisco could not avail
himself of the 2nd option. Although the twins had a good
relationship with him as evidenced by the letters, those are all
things of the past now. With the filing of this case, and the
allegations hurled at one another by the parties, the relationships
among the parties had certainly been affected. Particularly difficult
for Rica and Rina must be the fact that those who they had
considered and claimed as family denied having any familial
relationship with them. Given all these, we could not see Rica and
Rina moving back here in the Philippines in the company of those
who have disowned them.
Court remanded the case back to the RTC to determine the amount
of support to be given.
RTC also has to resolve the issue regarding the applicability of Art.
15 of the Civil Code to the girls.
Lim vs. Lim
Forbes; grandparents Prudencio and Filomena are liable for the
support of their grandchildren (Candice, Lester and Mariano)
only; Edward is still liable for the support of Cheryl
October 30, 2009
Facts:
1. Responent Cheryl Lim, on behalf of her children, Lester,
Candice and Mariano, filed an action for support against
petitioners her in laws and husband, Edward.
2. She left the house of her in-laws in Forbes, together with her
kids when she caught her husband in a compromising situation
with the in-house midwife.
3. RTC granted a monthly support of Php 40,000. Edward
Php6,000, in-laws: Php 34,000
4. RTC denied the motion for reconsideration of the defendants
5. Petitioners appealed to the CA saying that Edward’s income is
insufficient. Article 194 provdes that the support given must be
“in keeping with the financial capability of the family”
6. CA affirmed the CA ruling and held that grandparents can be
held liable for support pursuant to Article 195 [entitled to
support: parents and their children and the latter’s children],
200(3) [person obliged to give support has insufficient funds,
the other relatives enumerated in 199 should provide the
necessary support]
Held:
W/N grandparents can be liable for support together with
Edward
Yes. there is no question that Cheryl is unable to discharge her
obligation to provide sufficient legal support to her children, then all
school-bound. It is also undisputed that the amount of support
Edward is able to give to respondents, Php 6,000 a month, is
insufficient to meet respondents’ basic needs. This inability of
Edward and Cheryl to sufficiently provide for their children shifts a
portion of their obligation to the ascendants in the nearest degree,
both in the paternal (petitioners) and maternal lines, following the
ordering in Article 199. To hold otherwise, and thus subscribe to
petitioners’ theory is to sanction the anomalous scenario of
tolerating extreme marital deprivation of children because of
parental inability to give adequate support even if ascendants one
degree removed are more than able to fill the void.
This support only extends to their grandchildren. Support for
Cheryl is borne by her husband, Edward — the obligation which
arise from their marital bond.
W/N Petitioners can avail of the alternative option in Article 204
of the Civil Code as amended
No. The latter alternative cannot be availed of because it will
force Cheryl to return to the house which, for her, is the scene of her
husband’s infidelity. Cheryl’s charge against Edward for
concubinage did not prosper for insufficient evidence, her steadfast
insistence on its occurence amounts to a moral impediment
bringing the case within the ambit of the exception clause of Article
204, precluding its application.
SC remanded the case to the RTC for futher proceedings consistent
with the ruling
Article 201. The amount of support in the
cases referred to in Article 195 and 196, shall
be in proportion to the resources or means of
the giver and to the necessities to the
recipient.
Article 202. Support in the cases referred to in
the preceding article shall be reduced or
increased proportionately, according to the
reduction or increase to the necessities of the
recipient and the resources or means of the
person obliged to furnish the same.
➡ support is not fixed; subject to change
➡ support is proportionate to the means of the giver and to the
necessities of the recipient
Diaz vs. Celdran - The amount of support to be awarded to an
illegitimate child must not exceed that which a legitimate child
receives, for it could not have been the intention of the law to grant
to an illegitimate child a right better than that of a legitimate child,
otherwise that would be in effect giving a premium to illegitimacy.
Gorayeb vs. Hashim - Past payments, if they happened to be
excessive, cannot be offset by the current alimony. Neither should
the same be refunded.
What can be deducted?
Lim-Lua vs. Lua
only expenses which are related to the judgement granted
support pendente lite may be deducted from it
June 5, 2013
Facts:
1. Susan Lim-Lua filed an action for the declaration of nullity of her
marriage with respondent Danilo Lim. She prayed for support
pendente lite in the amount of Php500,000 as monthly support,
citing respondent’s huge earnings from salaries and dividends
in several companies and businesses here and abroad
2. RTC granted the support pendente lite and ordered Danilo Lua
to give Php 250,000 a month and Php 135,000 for Susan’s eye
operation. Php250,000 per month since September 2003 as
support in arrears.
3. Respondent Danilo filed a Motion for Reconsideration. Denied
by the RTC. Order had already decome final and executory.
Motion for Reconsideration had been filed beyond the 3-day
notice period
4. CA deducted the monthly support to Php 115,000 a month in
arrears as well as future monthly support.
5. Respondent paid the support in arrears (September 2003 -
March 2005) to Susan. However, he deducted the following:
(a) BMW 316i for Daniel Ryan
(b) Car Maintenance for the same
(c) Credit Card Statements of Daniel Ryan
(d) Volkswagen Beetle for Angelii Suzanne
(e) Car maintenance fees of Angeli Suzanne
6. Petitioner asserted that none of the expenses deducted by
respondent may be chargeable as part of the monthly support
7. RTC ruled in favor of the petitioner and ordered the full payment
of the support in arrears
8. Respondent filed a motion for reconsideration and a motion for
inhibition against the RTC judge. Both were denied.
9. Danilo refused to pay the support in arrears
10. CA dismissed Susan’s motion for contempt of court with
damages against Danilo as it granted the repsondent’s motion
for review.
1. arrears was correctly deducted by respondent
2. ordered Danilo to resume payment of monthly support
11. Petitioner goes to SC
Held:
W/N certain expenses already incurred by the respondent may be
deducted from the total support in arrears owing to petitioner and
her children
The CA should not have allowed all the expenses incurred by
respondent to be credited against the accrued support pendente
lite. The monthly support pendente lite granted by the RTC was
intended primarily for food, household expenses such as salares of
drivers and house helpers, and also petitioner’s scoliosis therapy.
Hence the value of the 2 expensive cars bought by respondent for
the children plus their maintenance cost, travel expenses of
petitioner and Angelli, purchases through credit card items other
than groceries and dry goods (clothing) should have been
disallowed, as these bear no relation to the judgement awarding
support pendente
 The deductions should be limited to the basic needs and
expenses considered by the RTC and CA. The assailed ruling of
the CA is inconsistent with the executory decision and it completely
ignored the unfair consequences to petitioner whose sustenance
and well-being was given due regard by the RTC and the CA.
Only the following expenses of respondent may be allowed as
deductions from the accrued support pendente lite for petitioner
and her children:
1. Medical expenses of Susan Lim-Lua
2. Dental expenses
3. Credit Card purchases Angelli Suzanne (grocery and clothing)
4. Credit Card purchases of Daniel Ryan
Jocson vs. Empire Insurance Co. - Support does not include what is
necessary for the education and clothing of the person entitled
thereto xxx. But support must be demanded and the right to it
established before it becomes payable. For the right to support
does not arise from the mere fact of relationship, even from the
relationship of parents and children, but “from imperative necessity
without which it cannot be demanded, and the law presumes that
such necessity does not exist unless support is
demanded” (Tolentino). The need for support cannot be presumed.
Support in arrears
Mangonon vs. CA - SC allowed the payment of support in arrears
considering that the children, who should have been given support,
must have already finished their schooling by the time the decision
was rendered. The amount of support to be paid was computed
from the time their entered college until they had finished their
respective studies.
Article 203. The obligation to give support
shall be demandable from the time the person
who has a right to receive the same needs it
for maintenance, but it shall not be paid
except from the date of judicial or extrajudicial
demand.
Support pendente lite may be claimed
in accordance with the Rules of Court.
Payment shall be made within the first
five days of each corresponding month. When
the recipient dies, his heirs shall not be
obliged to return what he has received in
advance.
Proper action for pendente lite
1. support
2. legal separation
3. annulment of marriage where support is one of the basic reliefs
prayed for
Benedicto vs. Rama - After final judgement or during the pendency
of the appeal, no application for support pendente lite may be
allowed.
RULE 61
Support Pendente Lite
Section 1. Application. — At the commencement of the proper
action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be filed by
any party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support thereof. (1a)
Section 2. Comment. — A copy of the application and all supporting
documents shall be served upon the adverse party, who shall have
five (5) days to comment thereon unless a different period is fixed by
the court upon his motion. The comment shall be verified and shall
be accompanied by affidavits, depositions or other authentic
documents in support thereof. (2a, 3a)
Section 3. Hearing. — After the comment is filed, or after the
expiration of the period for its filing, the application shall be set for
hearing not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for evidence on
motions. (4a)
Section 4. Order. — The court shall determine provisionally the
pertinent facts, and shall render such orders as justice and equity
may require, having the regard to the probable outcome of the case
and such other circumstances as may aid in the proper resolution of
the question involved. If the application is granted, the court shall fix
the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of
the applicant and the resources or means of the adverse party, and
the terms of payment or mode for providing the support. If the
application is denied, the principal case shall be tried and decided as
early as possible. (5a)
Section 5. Enforcement of order. — If the adverse party fails to
comply with an order granting support pendente lite, the court shall,
motu proprio or upon motion; issue an order of execution against
him, without prejudice to his liability for contempt. (6a)
When the person ordered to give support pendente lite refuses or
fails to do so, any third person who furnished that support to the
applicant may, after due notice and hearing in the same case obtain
a writ of execution to enforce his right of reimbursement against the
person ordered to provide such support. (h)
Section 6. Support in criminal cases. — In criminal actions where
the civil liability includes support for the offspring as a consequence
of the crime and the civil aspect thereof has not been waived,
reserved and instituted prior to its filing, the accused may be ordered
to provide support pendente lite to the child born to the offended
party allegedly because of the crime. The application therefor may
be filed successively by the offended party, her parents,
grandparents or guardian and the State in the corresponding
criminal case during its pendency, in accordance with the procedure
established under this Rule. (n)
Section 7. Restitution. — When the judgment or final order of the
court finds that the person who has been providing support pendente
lite is not liable therefor, it shall order the recipient thereof to return to
the former the amounts already paid with legal interest from the
dates of actual payment, without prejudice to the right of the
recipient to obtain reimbursement in a separate action from the
person legally obliged to give the support. Should the recipient fail to
reimburse said amounts, the person who provided the same may
likewise seek reimbursement thereof in a separate action from the
person legally obliged to give such support. (n)
Gan vs. Reyes
Gan claims that support which is subject of an appeal cannot
be executed absent any good reason for its immediate
execution; support is immediately executory and cannot be
delayed; no need to wait for the final judgement
May 28, 2002
Facts:
1. Bernadette Pondevida, filed for an action for support, as she
wanted to send her 3-yr old daughter, Francheska Joy to
school, against Caezar Gan.
2. Petitioner Gan denied paternity = birth certificate shows that the
father of Francheska Joy is “unknown”
3. RTC ordered petitioner to recognize private respondent as his
illegitimate child and provide Php 20,000 per month
4. Sheriff levied petitioner’s Honda City
5. He appealed to the CA which dismissed the same and denied
his Motion for Reconsideration
6. Petitioner’s argument:
(a) judgement for support which is subject of an appeal
cannot be executed absent any good reason for its
immediate execution
(b) an action by a child against his putative father, that the
adultery of the child’s mother would be valid defense to
show that the child is a fruit of adulterous relations for, in
such case, it would not the child of the defendant and
therefore not entitled to support
(c) consents to submit to DNA testing to resolve the issue of
paternity
Held:
W/N judgement for support which is subject of an appeal
cannot be executed
No. Section 4, Rule 39 of the Rules of Court states that
unless ordered by the trial court, judgements in actions for
support are immediately executory and cannot be stayed by an
appeal. This is an exception to the general rule which provides that
the taking of an appeal stays the execution of the judgement and
that advance executions will only be allowed if there are urgent
reasons therefor.
In all cases involving a child, his interest and welfare are
always the paramount concerns. There may be instances where, in
view of the poverty of the child, it would be a travesty of justice to
refuse him support until the decision of the RTC attains finality while
time continues to slip away.
In De Leon vs. Soriano, the Court ruled that if the provision of
support had to wait the final judgement, the children may in the
meantime had suffered because of lack of food or have missed and
lost years in school because of lack of funds. The delayed payment
cannot cure the evil and repair the damaged caused.
W/N the writ of execution should be annulled
No. [petitioner has done enough to delay the execution of the
writ: (1) petitioner surrendered a sedan which was not his (2)
petitioner filed before the CA a Motion for Leave to Deposit in Cout
Support Pendente Lite, to date, has not deposited anything]
If the writ of execution would be voided on the ground of
technicality, then procedural rules which were primarily drafted to
protect parties in the realm of constitutiona guarantees would
acquire a new sanctity at the expense of equity and justice.
W/N DNA testing should be administered
No useful purpose would be served if we dwell on petitioner’s
arguments concerning the validity of the judgement by efault and
his insistencce that he be subjected, together with Bernadette to
DNA testing to settle the issue of paternity. The futility of his
arguments is very apparent. It is not for us at this instance to review
or revise the decision rendered by the RTC for to do so would pre-
empt the decision which may be rendered by the CA in the main
case for support.
Article 204. The person obliged to give
support shall have the option to fulfill the
obligation either by paying the allowance fixed
or by receiving and maintaining in the family
welling the person who has a right to receive
support. The latter alternative cannot be
availed of in case there is a moral or legal
obstacle thereto.
Option for one obliged to give support
(1) to fulfill the obligation either by paying the allowance fixed, or
(2) by receiving and maintaining in the family dwelling the person
who has a right to receive support
➡ not absolute because the latter alternative cannot be availed of if
there is a moral or legal obstacle
Mangonon cs. CA - SC rejected the choice of the grandfather to
take custody of the grandchildren considering that, while they were
in good terms prior to the filing of the suit for support pendente lite,
the relationship of the grandfather and the grandchildren had
already turned sour during the pendency of the suit, especially
when accusation were hurled against each other. “Particularly,
difficult for Rica and Rina must be the fact that those who they had
considered and claimed as family denied having familial
relationship with them.”
Lim vs. Lim - The latter alternative cannot be availed of because it
will force Cheryl to return to the house which, for her, is the scene of
her husband’s infidelity. Cheryl’s charge against Edward for
concubinage did not prosper for insufficient evidence, her steadfast
insistence on its occurence amounts to a moral impediment
bringing the case within the ambit of the exception clause of Article
204, precluding its application.
Article 205. The right to receive support under
this Title as well as any money or property
obtained as such support shall not be levied
upon on attachment or execution.
Article 208, FC: In case of contractual support or that given by will,
the excess in amount beyond that required for legal support shall
be subject to levy on attachment or execution.
To deprive such recipient of these provisions will clearly be
prejudicial to his or her very existence.
 Article 206. When without the knowledge of
the person obliged to give support, it is given
by a stranger, the latter shall have a right to
claim the same from the former, unless it
appears that he gave it without any intention
of being reimbursed.
Requisites to be able to reimburse:
1. support has been furnished a dependent of one bound to give
support but failed to do so
2. support was supplied by a stranger
3. support was given without the knowledge of the person
charged with the duty and not for charity
Article 207. When the person obliged to
support another unjustly refuses or fails to
give support when urgently needed by the
latter, any third person may furnish support to
the needy individual, with a right of
reimbursement from the person obliged to
give support. This Article shall apply
particularly when the father or mother of a
child under the age of majority unjustly refuses
to support or fails to give support to the child
when urgently needed.
Requisites of Article 207 to have right to reimbursement
1. there is an urgent need to be supported on the part of the
recipient
2. the person obliged to support unjustly refuses or fails to give the
support
3. a third person furnishes the support to the needy individual
“when urgently needed”
- the failure to give support by the person obliged to give support
- unjust refusal to give such support
Article 208. In case of contractual support or
that given by will, the excess in amount
beyond that required for legal support shall be
subject to levy on attachment or execution.
Furthermore, contractual support shall
be subject to adjustment whenever
modification is necessary due to changes in
circumstances manifestly beyond the
contemplation of the parties.
What is legal support?
That which is mandated by law to be given and that which is
provided in Article 194.
What is contractual support?
That which is entered into by the parties usually with reciprocal
duties and obligations. It is not mandated by law.
➡ In case of contractual support and that given by will (voluntary
support), the excess in amount beyond that required for legal
support shall be subjected to levy on attachment or execution.
- adjustment only applies to contractual support because
support given by will is considered an advance deductible
from the ultimate successional share of the obligee (Pineda)
TITLE IX
PARENTAL AUTHORITY
Chapter 1. General Provisions
Article 209. Pursuant to the natural right and
duty of parents over the person and property
of their unemancipated children, parental
authority and responsibility shall include the
caring for and rearing of such children for
civic consciousness and efficiency and the
development of their moral, mental and
physical character and well-being.
Concepts if Parental Authority; Parental Responsibility
Parental Authority or patria the sum total or the rights of
potestas parents over the person and
property of their children
Parental responsibility refers to the mass of obligations
which parents have in relation to
the person and property of their
children
Coverage of Purpose
PA and PR shall include the caring for and rearing of children for
civic consciousness and efficiency and the development of their
moral, mental and physical character and well-being.
Constitutional Provision on Parental Authority
Art. 11, Section 12, 1987 Constitution
The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Criminal Liability of Parents
Art. 227, RPC - penalty of arresto mayor and a fine not exceeding
Php 500 shall be imposed upon parents who shall neglect their
children by not giving them the education which their station in life
requires and financial condition permits
Art. 59, PD 603 - doing any of these: abandoning the child to lose
its civil status, abandoning the child to another person for valuable
consideration, abating truancy of the child from the school he is
enrolled in, depriving a chid of love, care and affection he needs,
shall make the parents criminally liable
Art. 61, PD 603 - Parents may be admonished for unreasonable
negligence in the performance of their duties toward their children.
Ar ticle 210. Parental authority and
responsibility may not be renounced or
transferred except in the cases authorized by
law.
Cases wherein the law authorizes transfer/renunciation of
parental authority or parental responsibility:
1. guardianship
2. legal adoption
3. final order/judgement
4. substitute parental authority
5. separation of parents
6. death/absence/unsuitability of parents
7. entrusting of disadvantaged children to heads of children’s
homes, or orphanages
8. surrender of the child by its parents to any public institution
There is no abandonment of parental authority when child is
entrusted temporarily to a relative
Eslao vs. CA
The act of Maria leaving Angelica with her mother in law is not
that of abandonment but rather temporary custody which did
not constitute renunciation of parental authority — the latter
being a personal right and only renounced in certain cases
January 16, 1997
Facts:
1. Maria Paz and Reynaldo Eslao were married. They stayed with
Maria Paz’s mother in law, Teresita Eslao
2. Out of that marriage, two children were begotten, Leslie and
Angelica
3. Leslie was entrusted to the petitioner’s mother in Pampanga.
While Angelica stayed with Maria and Reynaldo.
4. When Maria was going to Pampanga, the Petitioner asked Maria
to let Angelica stay as she was mourning for the death of
Reynaldo.
5. Maria left Angelica and went to Pampanga. There she met Dr.
James Ouye, a Japanese-American and eventually the two got
married and migrated to the States.
6. Petitioner returned to the Philippines and told respondent about
her desire to take the children with her to the US.
7. Respondent Teresita resisted and claimed that Maria
abandoned her child.
8. Petitioner filed a petition for writ of habeas corpus for the
custody of her child. RTC granted the petition.
9. CA affirmed the RTC decision
Held:
W/N Maria Paz abandoned Angelica to the care and custody of
Petitioner Teresita
No. 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 (1) adoption, (2) guardianship,
and (3) surrender to a children’s home or an orphan institution which
do not appear in this case.
The trial court’s disquisition in consonance with the provision
that the child’s welfare is always the paramount consideration in all
questions concerning his care and cusoty convinced tis Court to
decide in favor of private respondent: The petitioner and her
present husband have a home of their own and they have 3 cars.
The petitioner’s husband is willing to adopt the petitioner’s children.
If the children will be with their mother, the probability is that they
will be afforded a bright future. Compared to the grandmother’s
boarding house, the latter does not offer such a pleasing
atmosphere. Finally considering that in all controversies involving
the custody of the minors, the foremost criterion is the physical and
moral well being of the child taking into account the respective
resources and social and moral situation of the contending parties.
Article 211. The father and the mother shall
jointly exercise parental authority over the
persons of their common children. In case of
disagreement, the father’s decision shall
prevail, unless there is a judicial order to the
contrary.
Children shall always observe respect
and reverence towards their parents and are
obliged to obey them as long as the children
are under parental authority.
➡ Joint exercise of parental authority
‣ Decision of the father shall prevail unless there is a judicial
order to the contrary
‣ Why the father? Because he is the head of the family. If the
decision is oppressive, arbitrary or unlawful, wife may go to
court to modify or reverse it.
➡ Children must always respect and revere their parents
‣ does not mean that they should stop doing so after they are
emancipated
‣ filial bond between parents and children is never destroyed
by emancipation
Who exercises parental authority when:
both parents are alive jointly; in case of disagreement, father’s
decision shall prevail, unless there is a
judicial order to the contrary (Art. 211)
in case of absence or the parent present shall continue
death of either parent exercising parental authority (Art. 212)
in cases of annulment or parent designated by the court; court
legal separation shall take into consideration all relevant
considerations, especially the choice of
the child over 7 years of age; children
under 7 shall not be separated from the
mother unless the court finds
compelling reasons to order otherwise
in case of remarriage parent present shall exercise; parental
authority shall not be affected by the
remarriage
in cases of death, substitute parental authority shall be
absences or unsuitability exercised by the surviving grandparent;
if there are several, the one designated
by the court

Article 212. In case of absence or death of
either parent, the parent present shall
continue exercising parental authority. The
remarriage of the surviving parent shall not
affect the parental authority over the children,
unless the court appoints another person to
be the guardian of the person or property of
the children.
➡ in case of absence/death of either parent
‣ parent present shall exercise parental authority
➡ remarriage shall not affect the parental authority over the
children
Article 213. In case of separation of the
parents, the 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.
➡ In case of separation
‣ not necessariy legally separated
➡ take into consideration of the choice of the child aged over 7
years old
‣ under 7 years old => tender age presumption; mother has
custody unless she is unfit
➡ all relevant considerations
‣ may refer to any situation, condition which has something to
do in assuring the welfare of the child
Espiritu vs. CA
March 15, 1995
Facts:
1. Teresita is the mother of Rosalind and Reginald.
2. She left her children with their father, Reynaldo and went back to
California. Reynaldo went home to the Philippines and left his
children with his sister, Guillerma Layug.
3. Reynaldo sued Teresita for bigamy as she was previously
married before she lived in with him in Pittsburgh.
4. Teresita eventuallly went home and filed a petition for habeas
corpus against Petitioners Reynaldo and Guillerma to gain
custody of Reginald and Rosalind.
5. RTC dismissed the petition. It also suspended Teresita’s
parental authority over the children and declared Reynaldo to
have sole parental authority over them but with visitation rights
to be agreed upon by the parties and to be approved by the
Court.
6. CA gave custody to Teresita and visitation rights on weekends
to Reynaldo.
Held:
W/N CA erred in giving the custody to Teresita
Yes. The CA blindly resolved the question of custody over the
children through an automatic and blind application of Article 363 of
the Civil Code which states:
“In all questions on care, custody, education and property of
children, the latter’s welfare shall be paramount. No mother shall be
separated from her child under seven years of age, unless the court
finds compelling reasons for such measure”
and Article 213 of the Family Code states:
“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, especiially the choice
of the child over seven years of age, unless the child chosen is
unfit.”
The CA 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 simply determination of the age of a minor child.
Whether a child is under or over 7 years old, 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 ases of that consideration. Instead of scrutinizing
the records of the case, it went ahead and simply followed statutory
presumptions and general propositions applicable to ordinary or
common situations. The 7 year-age limit was mechanically treated
as an arbitrary cut off period and not a guide based on a strong
presumption.
In ascertaining the welfare and the best interests of the child,
courts are maintained by the Family Code to take into account all
relevant considerations. If a child is under 7 years of age, the law
presumes that the mother is the best custodian. The presumption is
strong but it is not conclusive. It can be overcome by “compelling
reasons.” If the child is over 7, 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
7 years of age. They are capable of thoughtfuly determining the
parent with whom they want to live.
W/N Teresita should be granted custody over her children
RTC findings affirmed. Custody is given to Reynaldo. Teresita is
an unfit mother.
1. Rosalind’s psych test with child psychologist of Assumption
College, Rita Macabulos
(a) negative feelings towards her mother which is the cause of
most of the child’s anxiety
(b) saw her mother hugging and kissing a bad man who works
with her father
(c) Rosalind chooses petitioners over the private respondent
and that her welfare will be best served by staying with
them
2. social welfare case study conducted by Social Welfare Officer
Emma Lopez for the purpose of securing the travel clearance
required before minors may go abroad
(a) Rosalind refused to go back to the US and be reunited with
her mother
(b) Rosalind feels unloved and uncared for
(c) Rosalind was more attached to her yaya who did
everything for her
3. Observation of the trial court
(a) Teresita demonstrated her ebullient temper that tended to
corroborate the alleged violence of her physical
punishment of the children and emotional instability,
typified by her failure or refusal to show deference and
respect to the Court and other parties
4. RTC’s findings why Teresita is an unfit mother
a) She was legally married to Roberto Lustado, after less than
a year, she drives to Pittsburgh and lives in with Reynaldo
b) Teresita tried to picture Reynaldo as a rapist
c) Daughter Rosalind suffered emotional disturbance caused
by the traumatic effect of seeing her mother hugging and
kissing a boarder in their house as Teresita had an affair
with the co-worker of Reynaldo
 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 7 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
conflicting moral values, at least in Rosalind. This is not to
mention her conviction for the crime of bigamy, which from the
records appear to have become final.
W/N Reynaldo should be granted custody over his children
Reynaldo is a fit person, thus meeting the 2 requirements found
in the 1st paragraph of Article 213 of the Family Code. The
presumption under the 2nd paragraph of said article no longer
applies as the children are over 7 years of age. Assuming that the
presumption should have persuasive value for children only 1 or 2
years beyong the age of 7 years mentioned in the statute, there are
compelling reasons 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.
Laxamana vs. Laxamana
father’s drug addiction; SC remanded the case back to trial
court (which earlier based its ruling mainly on the psych test by
Dr. Ocampo); custody pendente lite was given to Respondent
mother; Court ruled in favor of the father who was a bar flunker
September 3, 2002
Facts:
1. Lourdes and Reymond have 3 children: Joseph, Vincent and
Michael
2. They marriage was going well until Petitioner Reymond became
dependent on shabu.
3. Despite several confinements, respondent claimed that
petitioner was not fully rehabilitated, his drug addiction only
worsened and it became difficult for respondent and her
chidren to live with him.
4. Respondent and her 3 children abandoned petitioner and
transferred to the house of her relatives.
5. Petitioner filed this instant petition for habeas corpus praying for
the custody of his children.
6. Meanwhile, Respondent filed a petition for annulment of
marriage against Petitioner
7. Petitioner filed in the habeas corpus case a motion seeing
visitation rights over his children.
1. RTC granted visitation rights
2. RTC directed parties to undergo psychiatric and
psychological examination
8. Dr. Ocampo submitted the results of his psychiatric evaluation
on the parties and the children
1. They were very much affected by the addiction of their
father. They saw him under the influence of shabu, saw him
getting angry at their grandmother and the anger was
displaced to their mother.
2. They had difficulty concentrating in school. Michael had to
quit school temporarily
3. Reymon would poke a gun in his head and ask the kids
who they love more
4. Dr. Ocampo concluded that Reymond is not complete
cured even though his drug urine test at Medical City for
shabu was negative
9. RTC ordered that the custody of the children still be with their
mother and that Petitioner should undergo urine test 3 times a
month with the Dangerous Drugs Board
Held:
W/N trial court considered the paramount interest and welfare
of the children in awarding their custody to respondent
The trial court should have conducted a trial notwithstanding
the agreement of the parties to submit the case for resolution on the
basis, of the psychiatric report of Dr. Ocampo. Thus, petitioner is
not estopped from questioning the absence of a trial considering
that said psychiatric report was the court’s primary basis in
awarding custody to respondent is insufficient to justify the decision.
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 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 the instant case, the proceedings beofre the trial court leave
much to be desired. While a remand of this case would mean
further delay, the children’s paramount interest demand that
further proceedings be conducted to determine the fitness of both
petitioner and respondent to assume custody of their minor
children.
Case remanded! Custody given to Respondent while the case
is pending.
Gualberto vs. Gualberto
Crisanto raises the compelling reason, to deprive Joycelyn of
the custody of Rafaelo, is immorality; lesbianism alone is not
compelling reason; must prove that such instance has had an
adverse effect on the welfare of the child or has negatively
affected the child
June 28, 2005
Facts:
1. Crisanto filed a petition for the nullity of his marriage with
Joycelyn with an ancillary prayer for custody pendente lite of
their 4 year old son Rafaelo, whom Joycelyn took away with her
from the conjugal home and his school
2. Joycelyn failed to appear despite notice therefore Crisanto
presented evidence ex parte
1. Joycelyn took their child. Despite efforts exerted by him, he
has failed to see his child. Joycelyn and the child are
presently staying with the former’s stepfather in Occidental
Mindoro
2. Renato Santos, commissioned by Crisanto to do a
surveillance on Joycelyn, testified that Joycelyn was having
lesbian relations with a Noreen Cuidadano in Cebu City
3. Findings of Renato Santos were corroborated by Cherry
Batistel, the house helper of the spouses. She testified that
Joycelyn was always out of the house and saw one time
slap Rafaelo.
3. RTC awarded the custody to Crisanto
1. Mother’s authority is subordinated to that of the father
2. Joycelyn had no reason to tke the child with her
4. Joycelyn filed a motion to lift the award of custody pendente lite
of the child to Crisanto. RTC awarded the custody to Joycelyn
1. Rafaello is barely 4 years old and and pursuant to Art. 213
of the Family Code, he shall not be separated from his
mother unless the Court finds compelling reasons to order
otherwise.
2. The grounds stated by Crisanto are not compelling reasons
to deprive the mother of her child’s custody
3. Visitation rights were granted to Crisanto
5. Crisanto filed a petition for certiorari, charging the RTC with
grave abuse of discretion for issuing the Order granting
Joycelyn the custody of their child.
6. CA ruled that grave abuse of discretion had been committed by
the RTC
1. the only incident to resolve was Joycelyn’s Motion to
Dismiss, not the issuance of the earlier Order
2. the previous Order, granting the custody to Crisanto must
prevail because the trial court did not resolve the correct
incident in the later Order.
3. ordered the trial court judge to “consider, hear, and resolve
the motion to lift the award of custody pendente lite”
without any motion of Joycelyn
7. Joycelyn brings this case to the SC
1. CA erred in granting the custody to Crisanto in violation of
Art. 213 of the FC
2. Is it Article 213 or 211 which applies in this case?
8. Crisanto brings up this issue (among others):
1. CA gravely abused its discretion by ordering the trial court
to hear the motion to lift the award of custody pendente lite
Held:
W/N CA gravely abused its discretion by ordering the trial court
to hear the motion to lift the award of custody pendente lite
No. CA did not commit grave abuse of discretion. A court of
competent jurisdiction is vested with the authority to resolve even
unassigned issues. It can do so when such a step is indispensable
or necesary to a just resolution of issues raised in a particular
pleading or when the unassigned issues are inextricably linked or
germane to those that have been pleaded.
Explicit in the Motion to Dismiss filed by Joycelyn before the
RTC is her ancillary prayer for the court to lift and set aside its
previous order granting Crisanto the custody of Rafaello. Indeed,
the necessary consequence of granting her Motion would have
been setting aside of the Order awarding Crisanto provisional
custody of the child.
W/N the Denial of the Motion for Reconsideration is proper
without explanation as to why the denial
Yes. The declaration of the nullity of marriage is the subject of
the main case, in which the issue of custody pendente lite is an
incident. That custody and support of common children may be
ruled upon by the court while the action is pending is provided in
Article 49 of the Family Code.
“During the pendency of the action and in the absence of
adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the spouses
and the custody and support of their common children”
Clearly then, the requirement cited by Crisanto is inapplicable.
In any event, in its questioned Resolution, the A clearly stated that it
“could not find any cogent reason” to reconsider and set aside the
assailed portion.
The assailed order is an award or temporary custody. As
such, it is provisional and subject to change as circumstances may
warrant. In this connection, there is no need for a lengthy discussion
of the alleged finality of the assailed decision. RTC Order granting
Crisanto temporary custody after a judgement on a marriage
annulment is not permanent; it may be reexamined and adjusted if
and when the parent who was given custody becomes unfit.
W/N CA erred in granting the custody to Crisanto in violation of
Art. 213 of the Family Code
Article 213 applies in this case as the parents are separated
legally or otherwise.
Given the mandatory character of Article 213 of the Family
Code, and the statutory recognition of tender-age presumption,
Joycelyn should be granted the custody of her child pendente lite.
As a general rule, mother is to be preferred in awarding
custody of children under the age of 7. The so called tender-age
presumption under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother’s unfitness.
The mother has been declared unsuitable to have custody of her
children in one or more of the following instances:
(1) Neglect
(2) Abandonment
(3) Unemployment
(4) Immorality
(5) Habitual Drunkeness
(6) Drug Addiction
(7) Maltreatment of the child
(8) Insanity or
(9) affliction with a communicable disease
Here, Crisanto cites immorality due to alleged lesbian relations
as the compelling reason to deprive Joycelyn of custody. It has
indeed been held that under certain circumstances, the mother’s
immoral conduct may constitute a compelling reason.
But sexual preference or moral laxity alone does not prove
parental neglect or incompetence. Not even the fact that a mother
is a prostitute or has been unfaithful to her husband would render
her unfit to have custody of her minor child. To deprive the wife of
custody, the husband must clearly establish that her moral
lapses have had an adverse effect on the welfare of the child or
have distracted the offending spouse from exercing the proper
parental care. (Espiritu vs. CA; Unson III vs. Navarro)
It is not enough for Crisanto to show merely that Joycelyn was
a lesbian. He must also demonstrate that she carried on her
purported relationship with a person of the same sex in the
presence of their son or under circumstances not conducive to the
child’s proper moral development. Such a fact has not been shown
here. There is no evidence that the son was exposed to the mother’s
alleged sexual proclivities or that his proper moral and
psychological development suffered as a result.
Salientes vs. Abanilla
Art. 213 of the Family Code is a guideline for the proper award
of custody by the court; not a basis for preventing the father to
see his own son; nothing in the said provision disallows a
father from seeing or visiting his child
August 29, 2006
Facts:
1. Respondent Loran Abanilla and Marie Antonette Salientes are
the parents of Lorenzo Salientes
2. They lived with Marie Antonette’s parents. However, due to
complications, Loran, left his in-laws house. He left Marie
Antonette and Lorenzo because the former refused to leave.
3. Because he was prevented to see his son, he filed for a petition
for habeas corpus.
4. RTC therefore issued an order to produce the body of the issue
and for Marie Antonette and her parents to show cause why the
said child should be discharged from restraint
5. RTC denied the petitioners’ Motion for Reconsideration
6. Petitioners field a petition for certiorari with the CA. The same
was dismissed. RTC did not award the custody of the 2-year old
child to any one but was simply the standard order issued for
the production of restrained persons. The trial court was still
about to conduct a full inquiry, in a summary proceeding, on the
cause of the minor’s detention and the matter for his custody.
7. Petitioners appealed to the SC
Held:
W/N CA erred when it dismissed the petition for certiorari
against the trial court’s orders
No.
The assailed order of the RTC 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 they are restraining his
liberty or why private respondent is prevented from seeing his child.
Habeas corpus may be resorted to in cases where rightful
custody is withheld from a person entitled thereto. Under 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 separated de 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 respondent’s cause of action is the
deprivation of his right to see his child as alleged in his petition.
Hence, the remedy of habeas corpus is available to him.
In a petition for habeas corpus, the child’s 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.
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 respondent’s petition for custody. But it is not a
basis for preventing the father to see his own child. Nothing in the
said provision disallows a father from seeing or visiting his child
under 7 years old.
Gamboa-Hirsch vs. CA
separated de facto parents (Agnes Gamboa-Hirsch and Franklin
Hirsch); custody granted to Agnes pursuant to Art. 213
July 11, 2007
Facts:
1. Franklin and Agnes are the parents of Simone. They were
married on December 23, 2000. From Makati, they all moved to
Boracay.
2. Agnes wanted to stay in Makati. However, Frankline insisted that
they stay in Boracay.
3. Agnes took Simone and never came back to Boracay.
4. Franklin filed a petition for habeas corpus before the CA
5. CA granted Franklin joint custody with Agnes of their minor child
6. CA denied Agnes’s Motion for Reconsideration for lack of Merit
7. Agnes came before the SC on appeal. SC denied petitioner’s
prayer for the issuance of a TRO
8. Agnes filed a Motion for Reconsideration before the SC
1. SC issues a TRO
Held:
W/N CA erred in granting joint custody in favor of Agnes and
Franklin
Custody of the child is granted to Agnes.
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 concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration. The Child and Youth Welfare Code, in
the same way, unequivocally provides that in all questions
regarding the care and custody, among others, of the child, his/her
welfare shall be the paramount consideration.
The so-called “tender-age presumption” under Article 213 of
the Family Code may be overcome only by compelling evidence of
the mother’s unfitness. The mother is declared unsuitable to have
custody of her children in one or more of the following instances:
(1) Neglect
(2) Abandonment
(3) Unemployment
(4) Immorality
(5) Habitual Drunkeness
(6) Drug Addiction
(7) Maltreatment of the child
(8) Insanity or
(9) affliction with a communicable disease
Here, the mother was not shown to be unsuitable or grossly
incapable of caring for her minor child. All told, no compelling
reason has been adduced to wrench the child from the mother’s
custody.
Dacasin vs. Dacasin
the divorce decree was automatically accepted as evidence by
the trial court; trial court as well as the SC recognized the
divorce decree and SC held that the spouses were no longer
married; Agreement is void being contrary to law; Custody
should have been given to the mother; case remanded to trial
court because Stephanie is now 14 years old
February 5, 2010
Facts:
1. Herald Dacasin (American citizen) and Sharon Del Mundo
Dacasin are the parents of Stephanie
2. Sharon sought a divorce decree against petitioner before the
Illinois court. The latter dissolved the marriage, awarded the
respondent sole custody of Stephanie and retained jurisdiction
over the case for enforcement purposes.
3. Petitioner Herald and Respondent Sharon executed in Manila a
contract for the joint custody of Stephanie.
1. chose Philippine courts as exclusive forum to adjudicate
disputes arising from the Agreement
4. Petitioner Herald sued Respondent Sharon in the RTC of Makati
to enforce the Agreement. He alleged that in violation of the
Agreement, Respondent exercised sole custody over
Stephanie.
5. RTC dismised the case for lack of jurisdiction
1. Illinois Court’s retention of jurisdiction to enforce its divorce
decree, including its order awarding sole custody of
Stephanie to Respondent
2. divorce decree is binding upon the petitioner following the
nationality rule
3. Agreement is void for contravening Art. 2035, par. 5 of the
Civil Code prohibiting compromise agreements on
jurisdiction
6. RTC denied Petitioner’s Motion for Reconsideration (Petitioner
raised that the divorce decree obtained by Respondent is void;
thus the divorce decree is no bar to the RTC’s exercise of
jurisdiction over the case)
Held:
W/N the trial court has jurisdiction to take cognizance of
petitioner’s suit and enforce the Agreement on the joint custody
of the parties’ child
The RTC has jurisdiction to entertain Petitioner’s suit but not to
enforce the Agreement which is void. However, factual and equity
considerations militate against the dismissal of petitioner’s suit and
call for the remand of the case to settle the question of Stephanie’s
custody.
Trial court has jurisdiction. What the Illinois Court retained was
the “jurisdiction for the purpose of enforcing all and sundry the
various provisions of its Judgement for Dissolution. Petitioner’s 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 beyong the zone of the Illinois court’s called
“retained jurisdiction.”
W/N trial court can enforce the Agreement
No. The RTC cannot enforce an Agreement which is contrary to
law. An agreement contrary to law is void from the beginning.
Futhermore, Respondent repudiated the Agreement by asserting
Sole custody over Stephanie.
At the time the parties executed the Agreement: (1) Stephanie
was under 7 years old; (2) petitioner and respondent were no longer
married under the laws of US because of the divorce decree. The
relevant Philippine law on child custody for spouses separated in
fact or in law (under the 2nd par. of Article 213 of the Family Code)
provides: “no child under 7 years of age shall be separated from
the mother.” This statutory awarding of sole parental custody to the
mother is mandatory, grounded on sound policy consideration,
subject only to a narrow exception not alleged to obtain here.
Therefore, being violative of 213 of Family Code which provides that
the child be under the custody of the mother, is contrary to law, thus
void ab initio.
The Agreement is not only void ab initio for being contrary to
law, it has also been repudiated by the mother when she refused
to allow joint custody by the father. The Agreement would’ve
been valid if the spouses did not divorce or separate because the
law provides for joint parental authority when spouses live together.
Upon separation of the spouses, the mother takes sole custody
under the law if the child is below 7 years old and any agreement to
the contrary is void. Thus, the law suspends the joint custody
regime for (1) children under 7 of (2) separated or divorced
spouses. In such cases, 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. The separated parents
cannot contract away the provision in the Family Code on the
maternal custody of the children below 7 years old anymore than
they can privately agree that a mother who is unemployed, immoral,
habitually drunk, drug addict, insane or afflicted with communicable
disease will have sole custody of a child under 7 as these are
reasons deemed compelling to preclude the application of the
exclusive maternal custody regime under the 2nd par. of Art. 213.
The imposed custodial regime under the 2nd par. of Article 213
is limited in duration, lasting only until the child’s 7th year. From the
8th year until the child’s emancipation, the law gives the separated
parents freedom, subject to the usual contractual limitations, to
agree on custody regimes they see fit to adopt.
Why did they recognize the foreign divorce decree?
In Van Dorn vs. Romillo, Court ruled that an alien spouse of a
Filipino is bound by a divorce decree abroad. Yes, foreign
divorce decrees are not valid here as they are contrary to local law
and public policy, but since they are valid according to their
national law, therefore the same is binding upon an alien spouse
even if it was obtained by the Filipino spouse. This was reiterated in
Pilapil vs. Ibay-Somera. Thus, a foreign divorce decree carries as
much validity against the alien divorcee in this jurisdiction as it
does in the jurisdiction of the alien’s nationality, irrespective of
who obtained the divorce.
SC remanded the case back to the trial court:
(1) because Stephanie is almost 15 years old; (2) to allow the
parties to take advantage of the court’s jurisdiction, submit
evidence on the custodial arrangement best serving
Stephanie’s interest.
Separate opinion: J. Abad
No legislative policy is violated if separated parents are
allowed to voluntarily agree to a child custody arrangement other
than sole maternal custody. It is not the policy of the State to
prohibit separated parents from compromising on child custody
even if the child is of tender age. On the contrary, voluntary custody
arrangements are generally favored as it can only work for the best
interest of the child.
Article 214. In case of death, absence or
unsuitability of the parents, substitute parental
authority shall be exercised by the surviving
grandparent. In case several survive, the one
designated by the court, taking into account
the same consideration mentioned in the
preceding article, shall exercise the authority.
When shall the grandparent exercise substitute parental
authority?
1. death of both parents
2. absence of both parents
3. unsuitability of both parents
What if there are more than 1 grandparent?
➡ The court must take into account relevant considerations to
assure the welfare of the child
Santos, Sr. vs. CA
March 16, 1995
Facts:
Santos Jr. the son of Leouel Santos, Sr. and Julia Bedia has
been in the custody of Julia’s parents, Leopoldo Bedia and Ofelia
Bedia. Julia is in the States, working as a nurse. Petitioner claims
that he couldn’t find the whereabouts of Julia. Nevertheless, the
latter still sends support for their son. RTC granted the petition of
spouses Bedia of the care and custody of Santos, Jr. Petitioner
herein, assails that decision.
Ruling:
W/N the custody should be granted to Santos, Sr.
YES!
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep them
in their custody and company. The child's welfare is always the
paramount consideration in all questions concerning his care and
custody.
The law vests on the father and mother joint parental authority
over the persons of their common children. In case of absence or
death of either parent, the parent present shall continue exercising
parental authority. Only in case of the parents' death, absence or
unsuitability may substitute parental authority be exercised by
the surviving grandparent. 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.
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. 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 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 spiriting away his boy
from his in-laws, though unjustifiable, is likewise not a ground to
wrest custody from him.
Private respondents' attachment to the young boy 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.
Ar ticle 215. No descendant shall be
compelled, in a criminal case, to testify
against his parents and grandparents, except
when such testimony is indispensable in a
crime against the descendant or by one
parent against the other.
Filial Privilege Rule
➡ No child may be compelled to testify against his parents and
grandparents in a criminal case
Exceptions:
1. when such testimony is indispensable in a crime against the
descendant or by one parent against the other
2. child may voluntarily give his or her testimony whether it may be
against his parents and grandparents
3. if he is compelled but in a civil case (Art. 215 only applies to
criminal cases)
Why?
This disqualification is intended to preserve family solidarity and to
prevent a common child to be used by a parent against the other in
criminal litigations between them.
Chapter 2
SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
Article 216. In default of parents or a judicially
appointed guardian, the following persons
shall exercise substitute parental authority
over the child in the order indicated:
(1) The surviving grandparent, as provided in
Art. 214;
(2) The oldest brother or sister, over twenty-
one years of age, unless unfit or
disqualified; and
(3) The child’s actual custodian, over twenty-
one years of age, unless unfit or
disqualified;
Whenever the appointment of a judicial
guardian over the property of the child
becomes necessary, the same order of
preference shall be observed.
Substitute Parental Authority
➡ to be exercised by the following in default of parents or
guardians
(1) surviving grandparent as provided in Art. 214
(2) oldest brother or sister above 21 years old, unless unfit or
disqualified
(3) the child’s actual custodian above 21 years old, unless unfit or
disqualified
➡ enumeration is exclusive
➡ must follow the order
Santos, Sr. vs. CA - In case of absence or death of either parent, the
parent present shall continue exercising parental authority. Only in
case of the parents' death, absence or unsuitability may substitute
parental authority be exercised by the surviving grandparent. 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. 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.
Article 217. In case of foundlings, abandoned,
neglected or abused children and other
children similarly situated, parental authority
shall be entrusted in summary judicial
proceedings to heads of children’s homes,
orphanages and similar institutions duly
accredited by the proper government agency.
Foundling
an infant found by others abandoned or exposed without a
known parent or person having custody or charge of it
Abandoned Child
one who has no proper parental care or guardianship, or
whose parents or guardians have deserted him for a period of at
least 6 continuous months
Neglected Child
one whose basic needs have been deliberately (intentionally)
unattended or inadequately attended (by omission); may be
physical or emotional
Abused Child
is one subjected to sexual, mental or physical abuse by his
parents or other persons
What is this Article saying?
➡ the law mandates that parental authority over F, AbanC, NC,
AbuC shall be in a summary judicial proceeding entrusted to
(a) heads of children’s homes
(b) orphanages
 (c) similar institutions duly accredited by the proper
governmental agency
RA 9523
➡ DSWD now has the power to issue certificates or declare
children available for adoption
➡ after DSWD has issed a certificate that the child is available for
adoption, LCR will issue a foundling certificate
Article 218. The school, its administrators and
teachers, or the individual, entity or institution
engaged in child care shall have special
parental authority and responsibility over the
minor child while under their supervision,
instruction or custody.
Authority and responsibility shall apply
to all authorized activities whether inside or
outside the premises of school, entity or
institution.
Who exercises Special Parental Authority and Responsibility?
1. school
2. administrators and teachers
3. individual, entity or institution engaged in child care
When do they exercise SPA/R?
➡ as long as the children is under their supervision, instruction/
custody
➡ in all authorized school activities whether inside or outside the
premises of the school
Liabilty of those exercising Special Parental Authority (S,E,I)
Amadora vs. CA - The student is in the custody of the school
➡ principally and solidarily liable
authorities as long as he is under the control and influence of the
school and within its premises, whether the semester has not yet
begun or has already ended.
Liabilty of Parents, Guardians or those exercising Substitute
Article 218 applies only when the pupil/student is a minor
Parental Authority
➡ subsidiarily liable
Substitute Parental Authority Special Parental Authority - it is only when the principal obligor is insolvent, that the
other is made liable
Article 216 Article 218
Defense for damages: they exercised the proper diligence
exercised by grandparents, or exercised by the school, required under the particular circumstances
oldest brother or sister above 21 administrators and teachers, or a) ordinary diligence
yrs old, or actual custodian above individual, entity, institution b) extraordinary diligence
21 yrs old engaged in child care depending upon the attendant circumstances (Article 1173, NCC)
➡ usually, what is required is the diligence of a good father
cannot be exercised concurrently can be concurrent with the
with parents’ parental authority parental authority of parents,
because there can only be while the child is in the custody
substitute parental authority when and care of those authorized to
the parents are absent/dead/unfit have special parental authority School of the Holy Spirit of Quezon City vs. Taguiam
July 14, 2008
(Article 214)
Facts:
1. Corazon Tagiuam is the Class Adviser of Grade 5-Esmeralda of
School of the Holy Spirit.
Article 219. Those given the authority and 2. Upon the request of the class president, the principal
responsibility under the preceding Article shall be authorized the activity and allowed the pupils to use the
principally and solidarily liable for damages swimming pool.
3. On that day however, Respondent, allowed Chiara Mae to swim
caused by the acts or omissions of the
unemancipated minor. The parents, judicial
without a parental consent. She assumed that her mother knew
as she was the one who dropped her off school with lunch and
guardians or the persons exercising substitute a swimsuit.
parental authority over said minor shall be 4. Unfortunately, when Taguiam went to investigate 2 students who
subsidiarily liable. left the swimming pool, a student drowned and was dead on
The respective liabilities of those referred arrival in the hospital.
5. She was dismissed by the school on the ground of gross
to in the preceding paragraph shall not apply if it negligence resulting to loss of trust and confidence.
is proved that they exercised the proper diligence 6. The parents of Chiara Mae filed a damage suit against the
required under the particular circumstances. Petitioner School and Respondent Tagiuam. They also filed a
All other cases not covered by this and the criminal complaint against Tagiuam for reckless imprudence
preceding articles shall be governed by the resulting in homicide.
7. Tagiuam filed for illegal dismissed before the Labor Arbiter.
provisions of the Civil Code on quasi-delicts.
8. Labor Arbiter dismissed the complaint
1. left the pupils without any adult supervision
2. absence of adequate facilities should have alerted
respondent before allowing the pupils to use the swimming
- all the concerned obligors simultaneously or any one of pool
them can be made liable for the entire obligation 3. although respondent’s negligence was not habitual, the
same warranted her dimissal because death resulted
therefrom
9. NLRC dismissed the appeal of Tagiuam
10. Respondent appealed before the CA. The latter granted
 1. there was insufficient proof that respondent’s negligence
was both gross and habitual
2. ordered School to pay backwages, and benefits,
separation pay, attorney’s fees
11. Petitioner school comes before the SC
Held:
W/N Tagiuam’s dismissal on the ground of gross negligence
resulting to loss of trust and confidence was valid.
Dismissal is valid and legal. CA erred reversing the NLRC
resolution.
SC not a trier of facts. But they are “constrained to review the
factual findings of the Court of Appeals.”
Tagiuam has been grossly negligent.
1. Chiara Mae’s permit form was unsigned
2. It was her responsibility to supervise her class in all activities
sanctioned by the school. She should have coordinated with the
school to make sure that there were adequate personnel
present to make sure of the safety of the students.
As a teacher who stands in loco parentis to her pupils,
respondent should have made sure that the children were protected
from all harm while in her company. Respondent should have known
that leaving the pupils in the swimming pool area by themselves
may result in an accident. A simple reminder “not to go to the
deepest part of the pool” was insufficient to cast away all the
serious dangers that the situation presented to the children,
especially when respondent knew that Chiara Mae cannot swim.
Dismally, respondent created an unsafe situation which exposed the
lives of all the students 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.
SC found support on the finding of the Assistant City
Prosecutor who found probable cause to indict respondent for the
crime of reckless imprudence resulting in homicide.
- Tagiuam should have foreseen the danger lurking in the waters
- by leaving her students in the swimming pool, respondent
displayed an “inexcusable lack of foresight and precaution”
Chapter 3
EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF
THE CHILDREN
Article 220. The parents and those exercising parental
authority shall have with respect to their unemancipated
children or wards the following rights and duties:
(1) To keep them in their company, to support, educate
and instruct them by right precept and good
example, and to provide for their upbringing in
keeping with their means;
(2) To give them love and affection, advice and
counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity self- discipline,
self-reliance, industry, and thrift, stimulate their
interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
(4) To enhance, protect, preserve and maintain their
physical and mental health at all times;
(5) To furnish them with good and wholesome
educational materials, supervise their activities,
recreation and association with others, protect them
from bad company, and prevent them from
acquiring habits detrimental to their health, studies
and morals;
(6) To represent them in all matters affecting their
interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be required
under the circumstances; and
(9) To perform such other duties as are imposed by law
upon parents and guardians.
Rights
1. to demand respect and obedience
2. to discipline their children or wards as may be required under
the circumstances
Duties
1. To keep them in their company, support and educate them
2. To love and give them wise counsel
3. To guide them morally and spiritually
4. Stimulate their interest in civil affairs;
5. inspire them to comply with duties of citizenship
6. to provide them their needs for their education and instruction
7. supervise their activities to maintain their physical and mental
health, and morality
8. to represent them in all matters affecting their interest
Article 221. Parents and other persons exercising
parental authority shall be civilly liable for the
injuries and damages caused by the acts or
omissions of their unemancipated children living in
their company and under their parental authority
subject to the appropriate defenses provided by
law.
Libi vs. IAC - Liability of parents for quasi-delicts and felonies
committed by their minor children is direct and primary and not
subsidiary.
Tamargo vs. CA - The civil liability imposed upon parents for the
torts of their minor children living with them, may be seen to be
based upon the parental authority vested by the Civil Code upon
such parents. In Article 2176, the civil law assumes that when an
unemancipated child living with its parents commits a tortious act,
the parents were negligent in the performance of their legal and
natural duty closely to supervise the child who is in their custody
and control. Parental liabilty is anchored upon parental authority
coupled with presumed parental dereliction in the discharge of
the duties accompanying such authority. The parental dereliction
is, only presumed and can be overturned under Article 2180 of the
Civil Code by proof that the parents had exercised all the diligence
of a good father of a family to prevent the damage
In the instant case, the shooting of Jennifer by Adelberto with
an air rifle occurred when parental authority was still lodged in
respondent Bundoc spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural parents who had
actual custody of the minor Adelberto, are the indispensable parties
to the suit for damages.
Defenses
1. observance of the diligence of a good father of a family to
prevent damage (Art. 2180, last par., NCC)
2. the erring children do not live in their company
3. the erring children are not under their parental authority (Art.
221, FC)
Article 222. The courts may appoint a guardian of
the child’s property, or a guardian ad litem when
the best interests of the child so require.
Ad litem = pending litigation
child = below 18 years old
Article 223. The parents or, in their absence or
incapacity, the individual, entity or institution
exercising parental authority, may petition the
proper court of the place where the child resides,
for an order providing for disciplinary measures
over the child. The child shall be entitled to the
assistance of counsel, either of his choice or
appointed by the court, and a summary hearing
shall be conducted wherein the petitioner and the
child shall be heard.
However, if in the same proceeding the
court finds the petitioner at fault, irrespective of the
merits of the petition, or when the circumstances
so warrant, the court may also order the
deprivation or suspension of parental authority or
adopt such other measures as it may deem just
and proper.
Article 224. The measures referred to in the
preceeding article may include the commitment of
the child for not more than thirty days in entities or
institutions engaged in child care or in children’s
homes duly accredited by the proper government
agency.
The parent exercising parental authority
shall not interfere with the care of the child
whenever committed but shall provide for his
support. Upon proper petition or at its own
instance, the court may terminate the commitment
of the child whenever just and proper.
Chapter 4
EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF
THE CHILDREN
Article 225. The father and the mother shall jointly
exercise legal guardianship over the property of
their unemancipated common child without the
necessity of a court appointment. In case of
disagreement, the father’s decision shall prevail,
unless there is a judicial order to the contrary.
Where the market value of the property or
the annual income of the child exceeds P50,000,
the parent concerned shall be required to furnish a
bond in such amount as the court may determine,
but not less than ten per centum (10%) of the
value of the property of annual income, to
guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond
shall be filed in the proper court of the place
where the child resides, or, if the child resides in a
foreign country, in the proper court of the place
where the property or any property is situated.
The petition shall be docketed as a
summary special proceeding in which all incidents
and issues regarding the performance of the
obligations referred to in the second paragraph of
this Article shall be heard and resolved.
The ordinary rules on guardianship shall be
merely suppletory except when the child is under
substitute parental authority, or the guardian is a
stranger, or a parent has remarried, in which case
the ordinary rules on guardianship shall apply.
Parents are legal guardians to the properties of their
➡ (1) common and (2) unemancipated children
➡ father’s decision prevails
10% Bond Required
‣ putting up a bond fixed by the court in a summary proceeding
‣ cannot be less that 10% of the annual income which exceeds
P50,000 or the value of the child’s property
‣ purpose: to guarantee the performance of the obligations
prescribed for general guardians
Article 225 only applies to parents who are legal guardians over
their unemancipated and common children’s property
➡ ordinary rules of guardianship under the Rules of Court are only
suppletorily applicable
Child under SubPA or Guardianship (stranger) or Parent has
remarried
➡ ordinary rules on guardianship shall apply

Article 226. The property of the unemancipated
child earned or acquired with his work or industry
or by onerous or gratuituous title shall belong to
the child in ownership and shall be devoted
exclusively to the latter’s support and education,
unless the title or transfer provides otherwise.
The right of the parents over the fruits and
income of the child’s property shall be limited
primarily to the child’s support and secondarily to
the collective daily needs of the family.
Properties earned by the child
(1) through his work or industry
(2) by onerous or
(3) gratuitous title
shall belong to the child in ownership, and not to the parents
- also the fruits; limited use: primarily for the owner-child’s support
and secondarily to the collective daily needs (needs of the family
as a whole, and not for a particular member) of the family
- exception: if the title or document of transfer provides for other
purposes
Neri vs. Heirs of Uy
October 10, 2012
Facts:
1. Anunciacion died intestate leaving homestead properties
located in Samal Island to her 2nd husband, Enrique and
children.
2. In 1979, Enrique executed an Extrajudicial Settlement of the
Estate with Absolute Deed of Sale adjudicating among
themselves (excluding however the children of Anunciacion of
the 1st marriage: Eutropia and Victoria) and conveyed the
properties to the Uy Spouses for Php 80,000.
3. In 1996, the children of Enrique filed a complaint for annulment
of sale of the said properties.
1. the sale was done within the prohibitive period
2. the complaint was later on amended to include Victoria and
Eutropia as additional plaintiffs for having been excluded
and deprived of their legitimes as children of Anunciacion.
4. Heirs of the Uy Spouses said that the sale took beyond the 5-
year prohibitory period from the issuance of the homestead
patents.
5. RTC annulled the Extrajudicial Settlement with Absolute Deed of
Sale
1. sale occured beyond the 5-year prohibitory period
2. still void because Victoria and Eutropia were deprived of
their hereditary rights
3. Enrique had no judicial authority to sell the shares of his
minor children (Rosa and Douglas)
6. CA reversed the RTC ruling
1. Extrajudicial Settlement and subsequent sale as valid and
binding with respect to Enrique and his children, holding
that as co-owners, they have the right to dispose of their
respective shares
2. Rosa and Douglas deemed to have ratified such sale
because they failed to question it upon reaching the age of
majority
3. Victoria and Eutropia had no knowledge of the extrajudicial
settlement and sale of the properties thus, were not bound
by it
7. Neri appeals before the SC
Held:
W/N CA erred in upholding the validity of the extrajudicial
settlement and the sale with respect to the shares of Eutropia
and Victoria were concerned.
Since all the children of Anunciacion in both marriages are
legitimate, all of them are entitled to equal shares as provided by
law. Hence, in the execution of the Extrajudicial Settlement of the
Estate with Absolute Deed of Sale in favor of spouses Uy, all the
heirs of Anunciacion should have participated. Considering that
Eutropia and Victoria were admittedly excluded and that then
minors Rosa and Douglas were not properly represented therein,
the settlement was not valid and binding upon them and
consequently, a total nullity.
However, while the settlement of the estate is null and void, the
subsequent sale of the subject properties made by Enrique and his
children, Napoleon, Alicia and Visminda, in favor of the respondents
is valid but only with respect to their proportionate shares therein.
W/N CA erred in upholding the extrajudicial settlement of the
estate and the sale with respect to the shares of Rosa and
Douglas.
Rosa and Douglas who were minors at the time of the
transaction, Enrique, their father, represented them. However, based
on the laws prevailing at that time, Enrique had only powers of
administration and bereft of any authority to dispose of their 2/16
shares in the estate of their mother, Anunciacion.
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. 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 ward’s property and
even then only with the courts’ prior approval secured in
accordance with the proceedings set forth by the Rules of Court.
Consequently, the disputed sale entered into by Enrique in
behalf of his minor children without the proper judicial authority,
unless ratified by them upon reaching the age of majority is
unenforceable in accordance with Articles 1317 and 1403 (1) of the
Civil Code.
Records show however, that Rosa had ratified the extrajudicial
settle of the estate with absolute deed of sale. The statement of
Rosa in the Manifestation and the Joint Affidavit saying that the
contract was voluntarily and freely made and that they were
surprised that their names were included in the case since they did
not have any intention to file a case against Hadji and Julpha Uy.
On the other hand, there is lack of evidence showing that
Douglas had ratified the settlement and the sale. Considering thus
that the extrajudicial settlement with sale is invalid therefore, not
binding on Eutropia, Victoria and Douglas only the shares of
Enrique, Napoleon, Alicia, Visminda and Rosa in the homestead
properties have effectively been disposed in favor of spouses Uy.
Art. 493 of the Civil Code: “Each co-owner shall have the full
ownership of his part and of the fruits and benefits pertaining
thereto, an 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 alientation 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.
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 latter’s benefit.
Article 1456 of the Civil Code states: “if property is acquired through
mistake or fraud, the person obtaining it 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 to Php5,000 each or a total of Php 15,000
be returned to spouses Uy with legal interest.
The complaint filed by Eutropia, Victoria and Douglas was well
within the prescriptive period of 10 years.
Article 227. If the parents entrust the management
or administration of any of their properties to an
unemancipated child, the net proceeds of such
property shall belong to the owner. The child shall
be given a reasonable monthly allowance in an
amount not less than that which the owner would
have paid if the adminstrator were a stranger,
unless the owner grants the entire proceeds to the
child. In any case, the proceeds thus given in
whole or in part shall not be charged to the child’s
legitime.
When parents entrust their property to their unemancipated
child for management/administration
➡ net proceeds realized in such management shall belong to the
parents
➡ child shall be entitled to reasonable allowance
‣ amount no less than what they would give to an unrelated
administrator
‣ whatever amount given to the child out of the proceeds shall
not be deducted from his legitime
_________________________________________________________
Chapter 5
SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY
Article 228. Parental authority terminates
permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
take note: death of both parents; if there is a surviving parent, he or
she exercises parental authority
Article 229. Unless subsequently revived by a final
judgement, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of
the child in case filed for the purpose;
(4) Upon final judgement of a competent court
divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority.
When is parental authority revived?
1. if the adoption is judicially rescinded and the child has not yet
reached the age of majority, parental authority is reinstated to
the parents by nature (Art. 193)
2. in case of termination of guardianship over the child, parental
authority is restored to the persons previously exercising it, if the
child is still a minor
3. in case of judicial restoration of parental authority to the
abandoning parent upon the latter’s return
4. in case of judicial restoration of parental authority to the person
judicially divested of it
5. in case of judicial restoration of parental authority to the absent
parent who has returned or to an incapacitated person who has
regained his or her capacity.
Article 230. Parental authority is suspended upon
conviction of the parent or the person exercising
the same of a crime which carries with it the
penalty of civil interdiction. The authority is
automatically reinstated upon service of the
penalty or upon pardon or amnesty of the offender.
Article 231. The court in an action filed for the
purpose or in a related cases may also suspend
parental authority if the parent or the person
exercising the same:
(1) Treats the child with excessive harshness or
cruelty;
(2) Gives the child corrupting orders, counsel or
example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be
subjected to acts of lasciviousness;
The grounds enumerated above are
deemed to include cases which have resulted
from culpable negligence of the parent or the
person exercising parental authority.
If the degree of seriousness so warrants, or
the welfare of the child so demands, the court
shall deprive the guilty party of parental authority
or adopt such other measures as may be proper
under the circumstances.
The suspension or deprivation may be
revoked and the parental authority revived in a
case filed for the purpose or in the same
proceeding if the Court finds that the cause
therefor has ceased and will not be repeated.
Grounds for suspension of parental authority
1. civil interdiction (Art. 230, FC; with automatic reinstatement)
2. Treats the child with excessive harshness or cruelty
3. Gives the child corrupting orders, counsel or example
4. Compels the child to beg
5. Subjects the child or allows him to be subjected to acts of
lasciviousness
➡ includes cases which have resulted from the passive acts of the
parents: tolerating the commission of the acts by 3rd persons
➡ if the circumstances warrant the suspension of PA when the
welfare of the child demands it
Article 232. If the person exercising parental
authority has subjected the child or allowed him to
be subjected to sexual abuse, such person shall
be permanently deprived by the court of such
authority.
There is no room for revival
Article 233. The person exercising substitute
parental authority shall have the same authority
over the person of the child as the parents.
In no case shall the school administrator,
teacher or individual engaged in child care and
exercising special parental authority, inflict
corporal punishment upon the child.
Authority of those in Loco Parentis (Substitute Parental
Authority
1. authority to impose discipline on the child (Art. 220 par.7, FC)
2. seek judicial orders to discipline the child (Art. 223, FC)
3. to commit the child for not more than 30 days in an institution
engaged in child care or in children’s homes (Art. 224,FC)
those exercising special parental authority are prohibited from
inflicting corporal punishment over the child
Art. 45, PD 603 - Parents and persons exercising parental authority
or substitute parental authority have the power to correct the child
and to punish him moderately or to discipline him as may be
necessary for the formation of his good character and may therefore
require him from obedience to just and reasonable rules,
suggestion and admonitions.
_________________________________________________________
TITLE X
EMANCIPATION AND AGE OF MAJORITY
Article 234. Emancipation takes place by the
attainment of majority. Unless otherwise provided,
majority commences at age of eighteen years (as
amended by RA 6809)
One way to be emancipated = when one reaches the age of 18
years
What is emancipation?
It is freedom from parental authority both over the person and
property of the child emancipated.
It makes the child qualified and responsible for all acts of civil
life, except for the following provided by existing laws in special
cases:
(1) purposes of entering into a marriage settlement, a contracting
party if still between 18-21 years old, will still need the
participation of his parents or guardians as signatories therein
(2) parties to a marriage contract who are 18-21 years old are
required to obtain parental consent (Art. 14, FC)
(3) parties to a marriage 18-21 have to attend marriage
counselling
(4) 18-21 year old children shall observe their responsibilites
under Art. 4, Art. 160 of PD 603
Why did they lower the legal age?
1. the State recognized the intellectual capacity and competence
of the Filipino youth to qualify them for all acts of civil life
2. to eliminate the difficulty encountered by the youth sector of the
labor force in being gainfully employed (ability to enter
contracts)
Article 236. Emancipation shall terminate parental
authority over the person and property of the child
who shall then be qualified and responsible for all
acts of civil life, save the exceptions established
by existing laws in special cases.
Contracting marriage shall require parental
consent until the age of twenty-one.
Nothing in this Code shall be construed to
derogate from the duty or responsibility of parents
and guardians for children and wards below
twenty-one years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil
Code. (as amended by RA 6809)
Children above 18 and below 21 years old are qualified and
responsible for all acts of civil life:
- may borrow money
- alienate, encumber real property
➡ without the consent of the parents (except in 4 cases already
mentioned)
Parents’ or Guardians’ liability in quasi delicts committed by
their children 18-21 years old
What is quasi-delict?
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no preexisting
contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
Art. 2180. The obligation imposed by Article 2176 is demandable
not only for one’s own acts or omissions, but also for those of
persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother
are responsible for the damages cause by the minor children who
live in their company.
Guardians are liable for damages caused by the minors or
incapacitated person who are under their authority and live in
their company xxx.
Parents/Guardians are solidarily liable for the quasi-delicts
committed by their children who are living with them ages 18-21
years old as well as minors.
- unless the parents or guardians can prove that they have
observed all the diligence of a good father of a family to prevent
the damage
_________________________________________________________
TITLE XI
SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW
Chapter 1. Scope of Application
Article 238. Until modified by the Supreme Court,
the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary
court proceedings. Such cases shall be decided
in an expeditious manner without regard to
technical rules.
What are the following cases to be decided in a summary
judicial proceeding?
(10)
Art. 100, par 2 separation in fact of H and W under the regime
of ACP and where the consent of one spouse
to any transaction of the other, is required by law
Art. 127, par. 2 separation in fact between H and W under a
regime of CPG and where the consent of one
spouse is required in a transaction as provided
for by the law
Art. 42 declaration of presumptive death
Art. 51 delivery of presumptive legitimes by means
of mutual agreement requiring judicial approval
Art. 69 disagreement in fixing the family domicile
Art. 73 objection of one spouse to the exercise by the
other spouse of any legitimate profession,
occupation, business or activity
Art. 96 disgagreement in the joint administration
and enjoyment of the community property
Art. 124 disagreement in the join administration and
enjoyment in the conjugal partnership
Art. 217 involves entrusting of parental authority over
foundlings, abandoned, neglected or abused
children and other children similarly situated to
heads of children’s homes, orphanages and
similar institutions duly accredited by the proper
government agency
Art. 225 fixing of the bond of parents
Chapter 2
SEPARATION IN FACT BETWEEN HUSBAND AND WIFE
Article 239. When a husband and wife are separated in fact,
or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the consent of
the other spouse is required by law but such consent is
withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts.
The petition shall attach the proposed deed, if any,
embodying the transaction, and, if none, shall describe in
detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case, the
final deed duly executed by the parties shall be submitted to
and approved by the court.
Article 240. Claims for damages by either spouse, except
costs of proceedings, may be litigated only in a separate
action.
Article 241. Jurisdiction over the petition shall, upon proof of
notice to the other spouse, be exercised by the proper court
authorized to hear family cases, if one exists, or in the
regional trial court or its equivalent, sitting in the place where
either of the spouses resides.
Article 242. Upon filing of the petition, the court shall notify the
other spouse, whose consent to the transaction is required, of
said petition, ordering said spouse to show cause why the
petition should not be granted, on or before the date set in
said notice for the initial conference. The notice shall be
accompanied by a copy of the petition and shall be served at
the last known address of the spouse concerned.
Article 243. A preliminary conference shall be conducted by
the judge personally without the parties being assisted by
counsel. After the initial conference, if the court deems it
useful, the parties may be assisted by counselat the
succeeding conferences and hearings.
Article 244. In case of non-appearance of the spouse whose
consent is sought, the court shall inquire into the reasons for
his or her failure to appear, and shall require such
appearance, if possible.
Article 245. If despite all efforts, the attendance of the non-
consenting spouse is not secured, the court may proceed ex
parte and render judgement as the facts and circumstances
may warrant. In any case, the judge shall endeavor to protect
the interests of the non-appearing spouse.
Article 246. If the petition is not resolved at the initial
conference, said petition shall be decided in a summary
hearing on the basis of affidavits, documentary evidence or
oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses to
be heard and the subject matter of their testimonies, directing
the parties to present said witnesses.

Article 247. The judgement of the court shall be
immediately final and executory.
Article 248. The petition for judicial authority to administer or
encumber specific separate property of the abandoning
spouse and to use the fruit
Article 249. Petitioners filed under Articles 223, 225 and 239
of this Code involving parental authority shall be verified.
Article 250. Such petitions shall be filed in the proper court of
the place where the child resides.
Article 251. Upon the filing of the petition, the court shall notify
the parents or, in their absence or incapacity, the individuals,
entities or institutions exercising parental authority over the
child.
Article 252. The rules in Chapter 2 hereof shall also
govern summary proceedings under this Chapter
insofar as they are applicable.
‣ no appeals allowed
‣ immediately final and executory
‣ in the preliminary conference there are no lawyers
‣ other spouse is given due process as he is duly notified of the
petition and his refusal or inability to show up in court, the
petitioning spouse shall be allowed to present her evidence ex
parte
RP vs. CA apply in all cases provided for in this Code requiring
May 6, 2005 summary court proceedings
Facts: - no doubt that the petition of Apolinaria required a summary
1. trial judge granted a petition filed by Apolinaria Jontoc for the proceeding and not a special proceeding
declaration of presumptive death of her husband, absentee - it being a summary ordinary proceeding, the filing of a Notice
spouse, Clemente Jomoc of Appeal from the RTC’s order sufficed
‣ Art. 41, par. 2, FC 2. repealing clause of FC, Art. 254 repeals all laws inconsistent
‣ 9 years absent therewith
‣ based decision on the Commissioner’s report - on alleged procedural flaw in petitioner’s petition before the
2. OSG - Republic appeal RTC decision CA which is that petitioner failed to attach to his petition a
‣ notice of appeal copy of the RTC’s order denying the MR of the disapproval of
3. trial court = disapproved Notice of Appeal: not fatal
‣ no record of appeal was filed and served “as required by - CA should have directed petitioner to comply with the rule
and pursuant to Section 2(a), Rule 41 of the 1997 Rules of
Civil Procedure, the present case being a special
proceeding RP vs. Tango
4. MR of OSG denied July 31, 2009
5. OSG filed petition for certiorari Facts:
- declaration of presumptive death of a person under art. 41 1. Ferventino and Maria got married before Mayor Bunye in Mar. 9,
is not a special proceeding or a case of multiple or separate 1987
appeals requireing a record on appeal ‣ none of Maria’s relatives witnessed their marriage
6. CA denied MR 2. Maria went to the States after she promised to file a petition for
๏ W/N a petition for declaration of the presumptive death of a Ferventino to live with her
person is in the nature of a special proceeding 3. They kept in touch for 1 year then Maria stopped answering his
➡ yes letters
‣ section 3(c), rule 1 of Rules of Court provides that ‣ Ferventino burned them
special proceeding is a remedy by which a party ‣ don’t know her address
seeks to establish a status, a right or a particular 4. Efforts made to find Maria:
fact (a) inquiry from uncle - Antonio Ledesma; even other relatives
‣ thus, Art. 41 = special proceeding did not know where she was
‣ ordinary civil action - party sues another for the (b) asked for assistance from his friend in Texas, a captain of
enforcement or protection of a right US Air Force (no avail)
Issue: W/N declaration of presumptive death is of a nature of a (c) sought aid from his parents in LA and aunt in Seattle
special proceeding (d) Maria has been absent for 14 years
OSG: declaration of P.D. is not a special proceeding not included in 5. Filed a petition to declare Maria presumptively dead
the enumeration under Rule 109 of the Revised Rules of Court ‣ Art. 41
notice of appeal suffices ‣ presented ex parte
Art. 41 - declaration of P.D. = summary proceeding ‣ RTC granted the petition
Ruling: 6. OSG filed a notice of appeal
1. Since the RTC cited Art. 41, FC to grant the declaration of 7. CA treated the case as an ordinary appeal case under Rule 41
presumptive death for purposes of remarrying, the petition for of RoC and affirmed RTC order
that purpose is a summary proceeding ‣ had well-founded belief
1.1. Art. 41, FC ‣ OSG did not dispute the adequacy of Ferventino’s basis to
1.2.Title XI of FC - summary judicial proceeding in Family Law: engender his well-founded belief
Article 238 provides that procedural rules in this Title shall Held: W/N SC has jurisdiction
 No. Petitioner made a mistake. OSG gave the notice of appeal
instead of petition for certiorari. RTC made an error by ordering the
transmission of the records of CA. CA did not have jurisdiction in
the first place. SC therefore cannot rule on the petition anymore
because the RTC order had already become immediately final and
executory.
xxxxx
TITLE XII
FINAL PROVISIONS
Article 256. This Code shall have retroactive
effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with
the Civil Code or other laws
_________________________________________________________
NEW CIVIL CODE
TITLE XIII
USE OF SURNAMES
Article 364. Legitimate and legitimated children
shall principally use the surname of the father.
RP vs. CA and Cynthia Vicencio
Case: appeal of the CA decision affirming the RTC decision
granting Cynthia Vicencio’s petition to change her surname from
“Vicencio” to “Yu”
Facts:
1. Cynthia was born to spouses Pablo Vicencio and Fe Leabres
2. Pablo Vicencio left/abandoned them
3. Ernesto Yu came to their aid
4. Leabres filed petition for dissolution of conjugal partnership
against Pablo before the Juvenile and Domestic Relations Court
of Manila
‣ petition for Change of Name
‣ Petition to Declare Pablo as an absentee
5. Fe Leabres and Ernesto Yu got married before Mayor Abalos
6. Cynthia’s reasons for the change of name
a) known father = Ernesto Yu
b) embarassed when her classmates question her why her
last name was different
c) in the pageant, her name was entered as Cynthia Yu
d) Ernesto Yu consented to her change of surname and
testified that he had always treated Cynthia as his own
child
7. OSG opposed the petition
8. RTC granted the change of name
- no valid cause to deny the petition
- RTC cannot compel respondent’s stepfather to adopt her
because adoption is a voluntary act
9. CA affirmed RTC decision
- best interest of petitioner
- give her an opportunity to improve her personality and
welfare
- that the different surname had caused her embarassment
and inferiority complex
Issue: W/N the CA erred in affirming the RTC's decision
allowing the change of name
Ruling: Yes.
In RP vs. Hernandez, the Court enumerated the grounds to
warrant a change of name:
(1) when the name is ridiculous, dishonorable or extremely
difficult to pronounce
(2) when the change of name is a legal consequence of
legitimation or adoption
(3) when the change will avoid confusion
(4) when one has continuously used and been known since
childhood by a Filipino name and was unaware of alien
parentage
(5) when the change is based on a sincere desire to adopt a
Filipino name to erase signs of former alienage, all in good
faith and without prejudice to anybody
(6) when the surname causes embarassment and there was
no showing that the desired change of name was for a
fraudulent purpose, or that the change of name would
prejudice public interest
Cynthia Vicencio cannot change her surname. Why?
1. She is the legitimate child of Pablo and Fe. As such, she
bears the surname of her father
2. change of name is a privilege and not a matter of right,
addressed to the sound discretion of the court
3. court allowed children to bear their step father’s surname
because they were illegtimate children of their biological father,
while Cynthia is a legitimate child of Pablo Vicencio. Thus, to
allow this will result to confusion with grave and legal
consequences
‣ Padilla vs. RP - confusion as to their paternity; discredit their
legitimacy
‣ her very change of name could trigger much deeper
inquiries regarding her parentage
Petition granted for lack of any legally justifiable cause allowing the
change of her surname.
In Re Petition for Change of Name and/or Correction of Entry in
the Civil Registry of Julian Lin Carulasan Wang
Facts:
1. Petitioner, represented by his mother Anna Lisa Wang, filed a
petition to change his name to Julian Lin Wang
‣ legitimated son of Anna Lisa and Sing-Foe Wang
‣ want tot drop the middle name; in Singapore middle names
are not carried
‣ Julian Lin might be discriminated
‣ Carulasan sounds funny in Singapore’s Mandarin language
since they do not have letter “R,” but if there is, they
pronounce is as “L”
2. RTC denied
‣ did not fall within the grounds recognized by law
‣ State has an interest in the name of a person, names cannot
be changed to suit the convenience of the bearers
‣ Art. 174 - Legitimate children have a right to bear the
surname of the father and the mother
‣ Julian should just decide when he comes of age
3. RTC denied MR
‣ Singaporean practice of not carrying the middle name does
not justify the dropping of the middle name of a Filipino
Issue: W/N there is a compelling reason to change Julian’s
name. W/N it is contrary to Art. 174.
Ruling:
Petition denied.
1. State has an interest in the names borne by individuals and
entities
‣ for purpose of identification
 ‣ change of name is a privilege, not a right: must show proper
or reasonable cause, or any compelling reason which may
justify such change
2. Valid Grounds:
(a) when the name is ridiculous, dishonorable or extremely
difficult to write or pronounce
(b) when the change of name is a legal consequence of
legitimateion or adoption
(c) when the change of name will avoid confusion
(d) when one has continuously used and been known since
childhood by a Filipino name and was unaware of alien
parentage
(e) when the change is based on a sincere desire to adopt a
Filipino name to erase a signs of former alienage, all in
good faith and without prejudice to anybody
(f) when the surname causes embarassment and there was
no showing that the desired change of name was for a
fraudulent purpose, or that the change of name would
prejudice public interest
3. The question of proper and reasonable cause is left to the
sound discretion of the court
‣ evidence need only be satisfactory
‣ a judicious evalutaion of the sufficiency and propriety of the
justification advanced in support
‣ court mindful of the consequences
4. The law does not allow one to drop the middle name from his
registered name
‣ middle names serve to identify the maternal lineage of
filiation of a person
‣ middle name futher distinguishes him from others who may
have the same given name and surname as he has
‣ FC = legitimate children bear father’s and mother’s surname
5. the only reason advanced by petitioner for the dropping of
middle name is convenience
‣ that such change of name would make his integration into
Singaporean convenient was not clearly established
‣ that the continued use of the middle name would cause
confusion was not established
6. petitioner is only a minor
‣ it is best that the matter of change of his name be left to his
judgement and discretion when he reaches age of majority
‣ changing his name at this point may just prejudice him in his
rights under our laws
Cases cited where change of name was granted by the court:
1. Oshita (b) surname
‣ filipino mother and japanese father 2. Law is silent as to the use of middle name or as to what middle
‣ reason: embarassing to carry a Japanese last name after name the adoptee may use
WW2 ‣ Members of the Civil Code and Family Law Committees that
2. Calderon drafted the FC recognized the Filipino custom of adding the
‣ illegitimate minor changed surname to stepfather surname of the child’s mother as the middle name
‣ best interest of the child ‣ members approved the suggestion that the initial or
3. Alfon surname of the mother should immediately precede the
‣ only bore mother’s surname although legitimate surname of the father
‣ used the surname since her childhood ‣ in case of an adopted child he shall bear the surname of the
‣ to avoid confusion adopters = law is silent whether he can use a middle name;
‣ no legal obstacle for her to choose to use surname of her the adoptee however, has a right and obligation to the bear
mother the surname of the adopter
3. Underlying intent of the adoption is geared to favor the adopted
child
‣ effect: adopted is deemed to be legitimate child of the
Article. 365. An adopted child shall bear the adopter for all intents and purposes pursuant to Art. 189 of
surname of the adopter. FC and Section 17, Art. V of RA 8552
‣ Being a legitimate child by virtue of her adoption, it
follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without
In the Matter of Adoption of Stephanie Nathy Astorga Garcia discrimination of any kind, including the right to bear the
May an illegitimate child, upon adoption by her natural father, use surname of her father and her mother
the surname of her natural mother as middle name? - consistent with intent of the framers
Facts: - Filipino custom that the initial or surname of the mother
1. Honorato Catindig wants to adopt his illegitimate child, should immediately precede the surname of the father
Stephanie Nathy - Stephanie’s continued use of her mother’s surname as
‣ mother: Gemma Astorga Garcia her middle name will maintain her maternal lineage
‣ Honorato is now a widower ๏ Art. 189 of FC and Section 18, Art. V of RA 8552
‣ wants Stephanie’s middle name to be Garcia and surname provides that adoptee remains an intestate heir of his/
Catindig her biological parent
2. RTC granted the petition - to allow Stephanie to use her mother’s surname as her
‣ “Stephanie Nathy Catindig” middle name will not only sustain her continued loving
3. petitioner filed a motion for clarification and/or reconsideration relationship with her mother but also eliminate the
‣ Stephanie should be allowed to use the surname of her stigma of her illegitimacy
natural mother (Garcia) as her middle name 4. adoption statutes should be liberally construed to carry out the
4. RTC denied the petition purposes of adoption
‣ there is no law/jurisprudence allowing an adopted child to ‣ interests and welfare of the child are of primary and
use the surname of his biological mother as his middle paramount consideration
name ‣ every reasonable intendment should be sustained to
Issue: W/N an illegitimate child may use the surname of ther promote and fulfill these noble and compassionate
mother as her middle name when she is subsequently adopted objectives of the law
by her natural father 5. There is no law prohibiting an illegitimate child adopted by her
Ruling: YES natural father to use as her middle name her mother’s surname,
1. Name has 2 parts we find no reason why she should not be allowed to do so .
(a) given name - to distinguish him from other individuals
RP vs. Capote
Facts:
1. Trinidad R.A. Capote (guardian) filed a petition for change of
name of her ward from Giovanni N. Gallamaso to Giovannie
Nadores (in a special proceeding)
‣ 16 years old
‣ illegitimate child of Corazon Nadores and Diosdado
Gallamaso
‣ father failed to take up responsibility
‣ Giovanni has been using Gallamaso since birth
‣ Giovannie wishes to change his surname to that of her
mother’s
‣ mother might petition Giovanni to join her in US, Giovanni’s
surname may complicate his status as Corazon’s natural
child
2. RTC ordered
‣ publication of petition in a newspaper of general circulation
in the province of Leyte once a week fr 3 weeks
‣ LCR was notifed
‣ OSG was sent a copy
3. RTC granted the petition
‣ no opposition
‣ allowed to present ex parte
4. OSG filed an appeal
‣ RTC court erred in granting the petition in a summary
proceeding
5. CA affirmed the RTC ruling
Issue: W/N CA erred in affirming the RTC’s decision which
granted the petition for change of name despite non-joinder of
indispensable parties
Ruling: Petition denied
1. Giovanni availed of the proper remedy, a petition for change of
name under Rule 103 of the Rules of Court, and complied with
all procedural requirements
‣ sufficiently established that under Art. 176 of the Civil Code,
Giovanni is entitled to change his name as he was never
recognized by his father
2. Rule 108 for cancellation or correction of entries in Civil registry
different from special proceedings for change of name
‣ OSG cited cases that has no bearing in the case
3. OSG cannot void the proceeding in RTC because he failed to
participate
‣ despite the notice of the trial court to the OSG, no one came
forward to oppose the petition
‣ the fact that no one opposed the petition including the OSG,
did non deprive the court of its jurisdiction to hear the same
nor does it make the proceeding less adversarial
‣ all requirements to a proceeding adversarial were complied
with when all interested parties, including petitioner, as
represented by the OSG were afforded the opportunity to
contest the petition.
Article 366. A natural child acknowledged by both
parents shall principally use the surname of the
father. If recognized by only one of the parents, a
natural child shall employ the surname of the
recognizing parent.
Article 367. Natural children by legal fiction shall
principally employ the surname of the father.
Article 368. Illegitimate children referred to in Art.
287 shall bear the surname of the mother.
Article 369. Children conceived before the decree
annulling the voidable marriage shall principally
use the surname of the father.
Article 370. A married woman may use:
(1) Her maiden first name and surname and add
her husband’s surname, or
(2) Her maiden first name and her husband’s
surname, or
(3) Her husband’s full name, but prefixing a word
indicating that she is his wife, such as “Mrs.”
Remo vs. Secretary of Foreign Affairs
Facts:
1. Maria Virginia V. Remo, upon renewing her passport, requested
to revert to her maiden name and surname in the replacement
passport
2. denied by DFA office in Chicago
3. DFA Secretary through assistant Secretary Anota also denied
the request
‣ use of maiden name is allowed in the passport application
only if the married name has not been used in previous
application (IRR for Phil. Passport Act of 1996)
‣ only allows women applicatnts to revert to maiden name in
cases of : (1) annulment of marriage, (2) divorce and (3)
death of husband
4. Petitioner filed an appeal with the office of the President
‣ RA 8239 Phil. Passport Act of 1996 offers no leeway for any
other interpretation than that only in cases of (1) divorce, (2)
annulment, (3) declaration of nullity of marriage may a
married woman revert to her maiden name
‣ in case of conflict between a general law and special law,
the latter shall prevail, thus, Civil Code must yield
‣ only allows women applicatnts to
5. CA denied
‣ no conflict between RA 8239 and Art. 370 of the Civil Code
‣ RA 8239 limits the instance when a married woman
applicant may use her maiden name
‣ no evidence that her marriage was annulled/divorced/
nullified
‣ petitioner cannot simply revert to her maiden name in the
replacement passport after she had adopted her husband's
name in her old passport
Held: W/N petitioner who originally used her husband’s
surname in her expired passport can revert to the use of her
maiden name in the replacement passport, despite the
subsistence of her marriage
1. Article 370 of the Civil Code provides that a married may use:
(1) Her maiden first name and surname and add her
husband’s surname, or
(2) Her maiden first name and her husband’s surname, or
(3) Her husband’s full name, but prefixing a word indicating
that she is his wife, such as “Mrs.”
The use of the husband’s surname by the wife is
permissive rather than obligatory. It is an option, not a duty.
She is not prohibited from continuously using her maiden name
once she is married because when a woman marries, she does
not change her name but only her civil status
2. Section 5(d) of RA 8239 states that a married woman may only
revert to the use of her maiden name in her passport in cases of:
(a) death of husband
(b) divorce
(c) annnulment
(d) nullity of marriage
It limits the instances when a married woman may be allowed
to revert to the use of her maiden name in her passport. Since her
marriage still subsists, she may not resume her maiden name in her
passport. RA 8239 and Art. 370 of the Civil Code are not conflicting,
the earlier actually recognized the fact that she has a right to use
her maiden name when she applies for her passport for the first
time.
3. Once a married woman opted to adopt her husband’s surname
in the passport, she may not revert to the use of her maiden name
except in cases stated in Section 5(d)
4. Even assuming that the 2 statutes are conflicting, RA 8239
prevails because it is a special law, while Civil Code is a general
law. Implied repeals are not favorable.
5. Unjustified changes in one’s name in a passport, which is
considered superior to all other official documents, cannot be
countenanced. For passport purposes, a married woman such as
petitioner, whose marriage subsists may not change her family
name at will.
Acquisition of a Philippine Passport is a privilige and it remains
at all times the property of the government. The holder is merely a
possessor of a passport as long as it is valid and the same may not
be surrendered to any person or entity other than the government or
its representative.
Article 371. In case of annulment of marriage, and
the wife is the guilty party, she shall resume her
maiden name and surname. If she is the innocent
spouse, she may resume her maiden name and
surname. However, she may choose to continue
employing her former husband’s surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to
another person.
Article 372. When legal separation has been
granted, the wife shall continue using her name
and surname employed before the legal
separation.
Article 373, A widow may use the deceased
husband’s surname as though he were still living,
in accordnace with Article 370.
Article 374. In case of identity of names and
surnames, the younger person shall be obliged to
use such additional name or surname as will avoid
confusion.
Article 375. In case of identity of names and
surnames between ascendants and descendants,
the word “Junior” can be used only by a son.
Grandsons and other direct male descendants
shall either:
(1) Add a middle name or the mother’s surname,
or
(2) Add the Roman numerals II, III, and so on.
Article 375. In case of identity of names and
surnames between ascendants and descendants,
the word “Junior” can be used only by a son.
Grandsons and other direct male descendants
shall either:
(1) Add a middle name or the mother’s surname,
or
(2) Add the Roman numerals II, III, and so on.
Article 376. No person can change his name or
surname without judicial authority.
Article 377. Usurpation of a name and surname
may be the subject of an action for damages and
other relief.
Article 378. The unauthorized or unlawful use of
another person’s surname gives a right of action to
the latter.
Article 379. The employment of pen names or
stage names is permitted, provided it is done in
good faith and there is no injury to third persons.
Pen names and stage names cannot be usurped.
Article 380. Except as provided in the preceding
article, no person shall use different names and
surnames.
RA 9048 AS AMENDED BY RA 10172
AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL
REGISTRAR OR THE CONSUL GENERAL TO CORRECT A
CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR
CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL
REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING
FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL
CODE OF THE PHILIPPINES
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. – No entry in a civil register
shall be changed or corrected without a judicial order, except for
clerical or typographical errors and change of first name or
nickname, the day and month in the date of birth or sex of a person
where it is patently clear that there was a clerical or typographical
error or mistake in the entry, which can be corrected or changed by
the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules
and regulations.”
Section 2. Definition of Terms – As used in this Act, the following
terms shall mean:
(1) "City or Municipal civil registrar" refers to the head of the local
civil registry office of the city or municipality, as the case may be,
who is appointed as such by the city or municipal mayor in
accordance with the provisions of existing laws.
(2) "Petitioner" refers to a natural person filing the petition and who
has direct and personal interest in the correction of a clerical or
typographical error in an entry or change of first name or nickname
in the civil register.
(3) ‘Clerical or typographical error’ refers to a mistake committed in
the performance of clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth, mistake in the
entry of day and month in the date of birth or the sex of the person or
the like, which is visible to the eyes or obvious to the understanding,
and can be corrected or changed only by reference to other existing
record or records: Provided, however, That no correction must
involve the change of nationality, age, or status of the petitioner.”
(4) "Civil Register" refers to the various registry books and related
certificates and documents kept in the archives of the local civil
registry offices, Philippine Consulates and of the Office of the Civil
Registrar General.
(5) "Civil registrar general" refers to the Administrator of the National
Statistics Office which is the agency mandated to carry out and
administer the provision of laws on civil registration.
(6) "First name" refers to a name or nickname given to a person
which may consist of one or more names in addition to the middle
and last names.
Section 3. Who May File the Petition and Where. – Any person
having direct and personal interest in the correction of a clerical or
typographical error in an entry and/or change of first name or
nickname in the civil register may file, in person, a verified petition
with the local civil registry office of the city or municipality where the
record being sought to be corrected or changed is kept.
In case the petitioner has already migrated to another place in the
country and it would not be practical for such party, in terms of
transportation expenses, time and effort to appear in person before
the local civil registrar keeping the documents to be corrected or
changed, the petition may be filed, in person, with the local civil
registrar of the place where the interested party is presently residing
or domiciled. The two (2) local civil registrars concerned will then
communicate to facilitate the processing of the petition.
Citizens of the Philippines who are presently residing or domiciled in
foreign countries may file their petition, in person, with the nearest
Philippine Consulates.
The petitions filed with the city or municipal civil registrar or the
consul general shall be processed in accordance with this Act and its
implementing rules and regulations.
All petitions for the clerical or typographical errors and/or change of
first names or nicknames may be availed of only once.
Section 4. Grounds for Change of First Name or Nickname. – The
petition for change of first name or nickname may be allowed in any
of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce.
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known
by that by that first name or nickname in the community: or
(3) The change will avoid confusion.
Section 5. SEC. 5. Form and Contents of the Petition. – The petition
for correction of a clerical or typographical error, or for change of first
name or nickname, as the case may be, shall be in the form of an
affidavit, subscribed and sworn to before any person authorized by
law to administer oaths. The affidavit shall set forth facts necessary
to establish the merits of the petition and shall show affirmatively that
the petitioner is competent to testify to the matters stated. The
petitioner shall state the particular erroneous entry or entries, which
are sought to be corrected and/or the change sought to be made.
The petition shall be supported with the following documents:
(1) A certified true machine copy of the certificate or of the page of
the registry book containing the entry or entries sought to be
corrected or changed;
(2) At least two (2) public or private documents showing the correct
entry or entries upon which the correction or change shall be
based; and
(3) Other documents which the petitioner or the city or municipal civil
registrar or the consul general may consider relevant and
necessary for the approval of the petition.
No petition for correction of erroneous entry concerning the date
of birth or the sex of a person shall be entertained except if the
petition is accompanied by earliest school record or earliest school
documents such as, but not limited to, medical records, baptismal
certificate and other documents issued by religious authorities; nor
shall any entry involving change of gender corrected except if the
petition is accompanied by a certification issued by an accredited
government physician attesting to the fact that the petitioner has not
undergone sex change or sex transplant. The petition for change of
first name or nickname, or for correction of erroneous entry
concerning the day and month in the date of birth or the sex of a
person, as the case may be, shall be published at least once a week
for two (2) consecutive weeks in a newspaper of general circulation.
Furthermore, the petitioner shall submit a certification from the
appropriate law enforcements, agencies that he has no pending
case or no criminal record.
The petition and its supporting papers shall be filed in three (3)
copies to be distributed as follows: first copy to the concerned city or
municipal civil registrar, or the consul general; second copy to the
Office of the Civil Registrar General; and third copy to the petitioner.”
Section 6. Duties of the City or Municipal Civil Registrar or the
Consul General. – The city or municipal civil registrar or the consul
general to whom the petition is presented shall examine the petition
and its supporting documents. He shall post the petition in a
conspicuous place provided for that purpose for ten (10) consecutive
days after he finds the petition and its supporting documents
sufficient in form and substance.
The city or municipal civil registrar or the consul general shall act on
the petition and shall render a decision not later than five (5) working
days after the completion of the posting and/or publication
requirement. He shall transmit a copy of his decision together with
the records of the proceedings to the Office of the Civil Registrar
General within five (5) working days from the date of the decision.
Section 7. Duties and Powers of the Civil Registrar General. – The
civil registrar general shall, within ten (10) working days from receipt
of the decision granting a petition, exercise the power to impugn
such decision by way of an objection based on the following
grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil register is
substantial or controversial as it affects the civil status of a person;
or
(3) The basis used in changing the first name or nickname of a
person does not fall under Section 4.
The civil registrar general shall immediately notify the city or
municipal civil registrar or the consul general of the action taken on
the decision. Upon receipt of the notice thereof, the city or municipal
civil registrar or the consul general shall notify the petitioner of such
action.
The petitioner may seek reconsideration with the civil registrar
general or file the appropriate petition with the proper court.
If the civil registrar general fails to exercise his power to impugn the
decision of the city or municipal civil registrar or of the consul
general within the period prescribed herein, such decision shall
become final and executory.
Where the petition is denied by the city or municipal civil registrar or
the consul general, the petitioner may either appeal the decision to
the civil registrar general or file the appropriate petition with the
proper court.
Section 8. SEC. 8. Payment of Fees. – The city or municipal civil
registrar or the consul general shall be authorized to collect
reasonable fees as a condition for accepting the petition. An indigent
petitioner shall be exempt from the payment of the said fee.
The fees collected by the city or municipal civil registrar or the consul
general pursuant to this Act shall accrue to the funds of the Local
Civil Registry Office concerned or the Office of the Consul General
for modernization of the office and hiring of new personnel and
procurement of supplies, subject to government accounting and
auditing rules
Section 9. Penalty Clause. - A person who violates any of the
provisions of this Act shall, upon conviction, be penalized by
imprisonment of not less than six (6) years but not more than twelve
(12) years, or a fine of not less than Ten thousand pesos
(P10,000.00) but not more than One Hundred Thousand pesos
(P100,000.00), or both, at the discretion of the court.
In addition, if the offender is a government official or employee he
shall suffer the penalties provided under civil service laws, rules and
regulations.
Section 10. Implementing Rules and Regulations. - The civil
registrar general shall, in consultation with the Department of
Justice, the Department of Foreign Affairs, the Office of the Supreme
Court Administrator, the University of the Philippines Law Center and
the Philippine Association of Civil Registrars, issue the necessary
rules and regulations for the effective implementation of this Act not
later than three (3) months from the effectivity of this law.
Section 11. Retroactivity Clause. - This Act shall have retroactive
effect insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code and other laws.
Section 12. Separability Clause. - If any portion or provision of this
Act is declared void or unconstitutional, the remaining portions or
provisions thereof shall not be affected by such declaration.
Section 13. Repealing Clause - All laws, decrees, orders, rules and
regulations, other issuances, or parts thereof inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.
Section 14. Effectivity Clause. - This Act shall take effect fifteen (15)
days after its complete publication in at least two (2) national
newspapers of general circulation.
Approved: March 22, 2001
RA 9225
"Article 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall
be entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their
filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the
right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child."
Grande vs. Antonio
February 18, 2014
Facts:
1. Grace Grande and Patricio Antonio had extra marital affairs and
cohabited with each other.
2. Out of this extra-marital affair, they had two sons: Andre Lewis
and Jerard Patrick
3. Grande left for the States with her kids
4. Respondent Antonio wanted his illegitimate children to bear his
surname as well as the parental authority. He files a petition for
Judicial Approval of Recognition with Prayer to take Parental
Authority, Parental Physical Custody, Correction/Change of
Surname of Minors and for the Issuance of Writ of Preliminary
Injunction before the RTC appending notarized deed fo
voluntary recognition of paternity of the children.
5. RTC decided in favor of the respondent.
(1) ordered the Office of the City Registrar to correct/change
the surnames of Andre and Jerard to Antonio
(2) that parental authority be exercised jointly by Patricio and
Grace over the minor children
(3) Granting Antonio the primary right and immediate custody
of the children from Monday until Friday evening and to
Grace from Saturday to Sunday evening
(4) Ordered Grace to surrender the persons in custody
(5) ordering Grace to desist from bringing the kids outside the
country
(6) ordered the parties to give and share support of the minor
children Andre and Jerard in the amount of Php30000/
month
6. Grace filed an appeal with the CA
7. CA modified the decision of the RTC
1. Grace has full and sole custody over her children
2. Antonio has visitation rights
CA reasons that not withstanding the father’s recognition of his
children, the mother cannot be deprived of her sole parental
custody over them absent the most compelling of reasons.
The legal consequence of the recognition made by respondent
Antonio that he is the father of the minors, taken in conjunction with
the “best-interest of the child” clause compels the use by the
children of the surname “Antonio.”
Issue:
W/N the recognition of the father of his illegitimate children means
the automatic use of the father’s surname.
Ruling:
NO.
Article 176 as amended by RA 9255 states “ Illegitimate
children shall use the surname of their mother and shall be under
parental authority of their mother, and shall be entitled to support in
conformity of this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly
recognized by their father through the record of birth appearing in
the civil register, or when an admission in a public document or
private handwritten instrument is made by the father…”
It is clear that the general rule is that an illegitimate child shall
use the surname of his or her mother. The exception is that the child
may use the father’s surname upon due recognition.
It may be argued that the IRR of 9255 states in such mandatory
terms that the child’s surname shall be changed to that of the
father’s. It is a hornbook rule that administrative issue cannot amend
a legislative act. It also has been held by the SC that IRRs of a law
cannot extent the law or expand its coverage, as the power to do so
rests in the Legislature and not in administrative officials. The IRRs
must be disregarded as the constitution itself provides that Rules of
procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the SC. Thus, we exercise this
power in voiding the IRR of RA 9255 insofar as it provides for the
mandatory use by illegitimate children of their father’s surname
upon the latter’s recognition of his paternity.
To conclude, the use of the word, “shall” in the IRR of RA 9255
is of no moment. The clear, unambiguous and unequivocal use
of “may” in Article 176 rendering the use of an illegitimate
father’s surname discretionary controls, and illegitimate
children are given the choice on the surname by which they will
be known.
The children also submitted letters that they do not want to
have the surname, Antonio.
The SC remanded the case to the RTC to determine the
surname to be chosen by the children Andre and Jerard.
TITLE XIV
ABSENCE
Chapter 1
PROVISIONAL MEASURES IN CASE OF ABSENCE
Article 381. When a person disappears from his
domicile, his whereabouts being unkown, and
without leaving an agent to administer his
property, the judge, at the instance of an
interested party, a relative, or a friend, may
appoint a person to represent him in all that may
be necesary.
This same rule shall be observed when
under similar circumstances the power conferred
by the absentee has expired.
Three kinds of Absence
1. absence that authorizes the taking of provisional measures
prescribed in Articles 381 to 383, Civil Code
2. absence which may be declared after the lapse of 2-5 years
since receipt of the last news from the absentee, depending on
whether or not he left a person in charge of the administration of
his property, respectively, in accordance with Articles 384 to
389, Civil Code
3. absence for 7 years which creates the presumption of death in
accordance with Articles 390 and 392, Civil Code
Article 382. The appointment referred to in the
preceding article having been made, the judge
shall take the necssary measures to safeguard the
rights and interests of the absentee and shall
specify the powers, obligations and remuneration
of his representative, regulating them, according
to the circumstances, by the rules concerning
guardians.
Article 383. In the appointment of a representative,
the spouse present shall be preferred when there
is no legal separation.
Duties of the Judge Who Appoints the Representative
(1) safeguard the rights and interests of the absentee
(2) specify the limits of the powers, obligations and remuneration of
the representative
(3) regulate these matters according to circumstances, following
the rules concerning guardians under Rule 107 of the Rules of
Court

When the person disappears without appointing any agent

‣ court upon proper petition may appoint a person to
provisionally represent him in any matter where representation
is necessary
‣ may be a (1) relative, (2) friend or an (3) interested party

No need to appoint if the absentee has no properties

Reyes vs. Alejandro - Considering that neither the petition alleges,

not the evidence shows, that Roberto L Reyes has any rights,
interest or property in the Philippines, there is no point in judicially
declaring him an absentee.
Chapter 2
DECLARATION OF ABSENCE
Article 384. Two years having elapsed without any
news about the absentee or since the receipt of
the last news, and five years in case the absentee
has left a person in charge of the administration of
his property, his absence may be declared.
Article 385. The following may ask for the
declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present
an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the
condition of his death.
Who can ask for the declaration of absence
1. spouse
2. heirs instituted in a will
- will need not be probated
3. relatives who may succeed intestate
- intestacy = no will
- intestate heirs:
a) legitimate children and heir legitimate descendants
b) legitimate children and other legitimate ascendants
c) illegitimate children and their descendants
d) surviving spouse, without prejudice to the rights of
brothers and sisters, nephews and nieces should
there be any
e) collateral relatives up to the 5th degree of relationship
f) the State
4. those who may have over the property of the absentee some
right subordinated to the condition of his death
- donee in a donation mortis causa
- creditor vested upon death of debtor
Chapter 3
ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE
Article 386. The judicial declaration of absence
shall not take effect until six months after its
publication in a newspaper of general circulation.
Article 387. An administrator of the absentee’s
property shall be appointed in accordance with
Article 383.
Article 388. The wife who is appointed as an
administratrix of the husband’s property cannot
alienate or encumber the husband’s property, or
that of the conjugal partnership, without judicial
authority.
H/Wife/administratrix is only allowed to make acts of
administration over the husband’s exclusive property
- selling, encumbrance, disposal = acts of ownership
- can only alienate/encumber/sell with the judicial authorization
Transfer of administration in CPG (not because of absence)
Art. 110. The spouses retain ownership, possession, administration
and enjoyment of their exclusive properties.
Either spouses may, during the marriage, transfer the
administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the
registry of property of the place where the property is located.
Procedure in the Alienation of the Property of the Absentee
- can apply Sec. 4, Rule 95 of Rules of Court involving
guardianship:
- why? Art. 382 authorizes the application of rules concerning
guardians
- purpose: sale/encumbrance must be necessary and beneficial to
the ward and the proceeds thereof be expended for the
maintenance of the ward and his family, or the education of the
ward, if a minor, or for the putting of the same out at interest, or
the investment of the same as the circumstances may require
- original bond of the guardian shall stand as security for the
proper appropriation of the proceeds of the sale
Article 389. The administration shall cease in any
of the following cases:
(1) When the absentee appears personally or by
means of an agent;
(2) When the death of the absentee is proved and
his testate or intestate heirs appear;
(3) When a third person appears, showing by a
proper document that he has acquired the
absentee’s property by purchase or other title.
In these cases, the administrator shall
cease in the performance of his office, and the
property shall be at the disposal of those who may
have a right thereto.
Chapter 4 Article 390 Article 41 ‣ no trace of the whereabouts of the vessel
PRESUMPTION OF DEATH ‣ beings from the date of occurence of the incident
opening of the absentee must be not basis for opening (2) person in the armed forces who has taken part in war
succession absent for at least 10 succession of the ‣ all persons even chaplains, doctors, nurses, etc who render
Article 390. After an absence of seven years, it years for purposes of absent spouse services to the AF
succession ‣ disappearance must be during the military operations or
being unknown whether or not the absentee still
armed hostilities
lives, he shall be presumed dead for all purposes, if absentee ‣ reckoned from the conclusion of peace
except for those of succession. disappeared after 75 (3) danger of death under other circumstances
years old, 5 years is
The absentee shall not be presumed dead ‣ volcanic eruptions, landslides, earthquakes, fires, cave-ins
enough
for the purpose of opening his succession till after of mines or deep excavations, tornadoes, supertyphoons
‣ reckoned on the last day of danger
an absence of ten years. If he disappeared after who makes the presumption is made the Court declares
presumption by law the absent spouse to
the age of seventy five years, an absence of five be presumptively
years shall be sufficient in order that his dead (judicial
succession may be opened. declaration)
Article 392. If the absentee appears, or without
appearing his existence is proved, he shall
Death due to ordinary circumstances
- no need for judicial proceedings because the presumption of
recover his property in the condition in which it
Article 391. The following shall be presumed dead may be found, and the price of any property that
death is created by law
for all purposes, including the division of the may have ben alienated or the property acquired
Article 390 Article 41
estate among the heirs: therewith; but he cannot claim either fruits or rents.
as to the number of at least 7 years at least 4 years; or 2
(1) A person on board a vessel lost at sea voyage
yrs of absence years if absence is or an aeroplane which is missing, who has not
due to any of the been heard of for four years since the loss of When absentee reappears, can get back property
circumstances under
the vessel or aeroplane; - ownership
art. 391 of the Civil - if alienated, can get back the price paid or property exchanged
Code (2) A person in the armed forces who has taken
part in war, and has been missing for four
as to the character as to whether there is a well- The absentee cannot recover fruits or rent
of absence in the absentee is alive or founded belief that
years; 1. natural - spontaneous products of the soil and the you and other
mind of the spouse not, is not certain the absent spouse (3) A person who has been in danger of death products of animals
present was already dead under other circumstances and his existence 2. industrial - produced by lands of any kind through cultivation of
purpose of presumption is good presumption is for the
has not been known for four years labor
3. civil - rents of buildings, the price o leases of lands and other
presumption for all purposes purpose of
except for succession remarriage of the property and the amount of perpetual or life annuities or other
spouse present similar income
Extraordinary Absence
- four years
personality of the absentee need not be absentee is the Prescription may bar recovery
absentee a spouse of the one spouse of the spouse
- there is stong conviction, belief that under the ordinary course of
1) continued possession of property by heirs or recipients in good
invoking the present who seeks events, the missing person is already dead being the subject of faith without interruption
presumptive death of the former’s some catastrophic happenings - 10 years = real property
the former declaration as (1) loss of vessel or aeroplane - 4 years = personal property
presumptively dead ‣ could not be located or accounted for and not just - absentee is barred from recovering
“damaged”
 - heirs = become owners by way of acquisitive prescription
(Art. 1137 and 1132)
2) if heirs are in bad faith
- continuous possession
- must not be less than 30 years if real property
- must not be less than 8 years if personal property
- absentee can still recover property
Chapter 5
EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF
THE ABSENTEE
Article 393. Whoever claims a right pertaining to a
person whose existence is not recognized must
proce that he was living at the time his existence
was necessary in order to acquire said right.
*must correlate this with Art. 389(3)
Article 394. Without prejudice to the provision of
the preceding article, upon the opening of a
succession to which an absentee is called, his
share shall accrue to his coheirs, unless he has
heirs, assigns, or a representative. They shall all,
as the case may be, make an inventory of the
property.
What is accretion?
The right of heirs/legatees to unite their shares of the estate
with the portion of any of the coheirs or legatees who do not accept
their portion, fail to comply with a condition or die before the
testator.
If the absentee has heirs or representatives
The heirs or representatives shall have the burden of proof to
establish that the absentee was alive at the opening of succession.
Reappearing absentee can recover what is due him
Article 395. The provisions of the preceding article
are understood to be without prejudice to the
action or petition for inheritance or other rights
w h i c h a re v e s t e d i n t h e a b s e n t e e , h i s
representatives or successors in interest. These
rights shall not be extinguished.
- unless in the meantime acquisitive prescription had already set in
against him
Transfer by Accretion must be annotated in the registry of
property
- transfer of real property to coheirs of the absentee due to
accretion must be annotated at the back of the title
- Register of deeds must inscribe on the title covering the property
the circumstance that the property is subject to the provisions of
Art. 395
Article 396. Those who may have entered upon
the inheritance shall appropriate the fruits received
in good faith so long as the absentee does not
appear, or while his representatives or successors
in interest do not bring proper actions.
TITLE XVI
CIVIL REGISTER
Article 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civi register.
Article 408. The following shall be entered in the
civil register:
(1) Births, (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriages; (6)
judgements declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgements of natural children; (10)
naturalization; (11) loss; or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
d e t e r m i n a t io n o f fi l i at i o n ; ( 1 5 ) vo lu n t a r y
emancipation of a minor; (16) changes of name.
Article 409. In cases of legal separation, adoption,
naturalization and other judicial orders mentioned
in the preceding article, it shall be the duty of the
clerk of court which issued the decree to ascertain
whether the same has been registered, and ifthis
has not been done, to send a copy of said decree
to the civil registry of the city or municipality where
the court is functioning.

Article 410. The books making up the civil register
and all documents relating thereto shall be
considered public documents and shall be prima
facie evidence of the facts therein contained.
Iwasawa vs. Gangan
September 11, 2013
Facts:
1. Petitioner Iwasawa filed a petition for the declaration of his
marriage to private respondent Gangan as null and void on the
ground that their marriage is a bigamous one based on Artilce
35(4) of the Family Code
2. Iwasawa only found out that she was already previously married
when she explained why she was depressed. Her answer was
that her husband just died. This was when they were already
residing in Japan as husband and wife.
3. Petitioner presented the following evidences from NSO:
(1) Certificate of Marriage of petitioner and private respondent
- to prove that Iwasawa and Gangan were married
(2) Certificate of Marriage of private respondent and Raymond
Arambulo - to prove that Gangan was married to Raymond
Arambulo
(3) Certificate of Death of Raymond Arambulo - to prove the
death
(4) Certiification of NSO to the effect that there are 2 entries of
marriage recorded by the office pertaining to private
respondent - to prove that Gangan in fact contracted 2
marriages, first one was to Raymond Arambulo and the 2nd
to Iwasawa
4. OSG admitted authenticity and due execution of the
documentary exhibits
5. RTC ruled that there was insufficient evidence to prove private
respondent’s prior existing valid marriage to another man.
1. it was only petitioner who testified about said marriage and
his testimony is unreliable because he has no personal
knowledge of Gangan’s prior marriage nor of Arambulo’s
death which makes him a complete stranger to the
marriage certificate between Gangan and Arambulo and
the latter’s death certificate
2. petitioner’s testimony about the NSO certification is likewise
unreliable since he is stranger to the preparation of said
document
6. RTC denied MR of Petitioner
7. Petitioner contends
‣ the documentary evidence he presented are public
documents which are considered to be self-authenticating
and thus it was unnecessary to call the NSO Records
Custodian
‣ Art. 410 of the Civil Code - books making up the civil
register and all documents relating thereto shall be
considered public documents and shall be prima facie
evidence of the facts stated therein.
‣ trial prosecutor admitted the authenticity of said
documents
8. OSG submits
‣ findings of RTC are not in accord with law and established
jurisprudence
‣ RA 3753, Law on Registry of Civil Status, and the Civil
Code elaborated on the character of of documents arising
from records and entries made by the civil registerand
categorically declared them as public documents
‣ no need for the NSO custodian or officer to testify
‣ public documents have probative value since they are
prima facie evidence of the facts stated therein
‣ public documents presented by petitioner, considered
together, completely establish the facts in issue.
Issue: W/N the testimony of the NSO records custodian certifiying
the authenticity and due execution of the public documents issued
by said office was necessary before they could be accorded
evidentiary weight.
Ruling:
1. RTC erred when it disregarded said document on the sole
ground that the petitioner did not present the records custodian
of the NSO. The documentary evidence presented by Iwasawa
were all public documents and therefore prima facie evidence of
the facts stated therein.
1. Art. 410 - The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
contained therein
2. as public documents there are admissible as evidence
without further proof of the due execution
3. they deserve to be given evidentiary weight
4. facts stated therein remain rebutted since neither Gangan
nor the public prosecutor presented evidence to the
contrary
2. Documentary exhibits taken together concretely establish the
nullity of the marriage of petitioner to private respondent on the
ground that their marriage is bigamous.
‣ Judicial declaration of nullity is required before a valid
subsequent marriage. Otherwise, it is a bigamous
marriage which is void from the beginning.
‣ Exhibits directly prove that:
1. private respondent married Arambulo
2. private repsondent married Iwasawa
3. there was no judicial declaration of nullity of the
marriage with private respondent with Arambulo at the
time she married Iwasawa
4. Arambulo died and that it was only on said date that
private respondent’s marriage with Arambulo was
deemed to have been dissolved
5. that the 2nd marriage of private respondent to
petitioner is bigamous, hence null and void, since the
first marriage was still valid and subsisting when the
second marriage was contracted
Marriage of Iwasawa and Gangan is hereby declared null and void.
Article 411. Every civil registrar shall be civilly
responsible for any unauthorized alteration made
in any civil register, to any person suffering
damages thereby. However, the civil registrar may
exempt himself from such liability if he proves that
he has taken every reasonable precaution to
prevent the unlawful alteration.
Criminal Liability
➡ Art. 171 of RPC: falsification by public officer, employee or
notary or ecclesiastic minister = Prision Mayor Php5,000
➡ shall be imposed upon any public employee, or notary who,
taking advantage of his official position, shall falsify a
document by committing any of the ff. acts:
(1) counterfeiting or imitating any handwriting, signature or
rubric
(2) causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate
 (3) attributing to persons who have participated in an act or
proceeding statements other than those in fact made by
them
(4) making untruthful statements in a narration of facts
➡ plus damages to the person injured
Article 412. No entry in a civil register shall be
changed or corrected, without a judicial order
Kinds of Errors or Mistakes Subject to Correction
1. Clerical or Harmless
‣ visible to the eyes
‣ mistake in copying or transcribing
‣ RA 9048 as amended by RA 10172
2. Substantial or Controversial
‣ grave errors and involve matters of importance such as
citizenship and civil status of persons
‣ Rule 108, Rules of Court
Rule 108 of Rules of Court is the Applicable procedure in
Changing or Correcting Entries
Lee vs. CA - The effect of RA 9048 is to remove from the ambit of
Rule 108, Revised Rules of Court, the correction or changing of
such errors in entries of the civil register, leaving for the scope of
operation of Rule 108 substantial changes and corrections in entries
of the civil register.
Silverio vs. Republic
Facts:
1. Rommel Jacinto Dantes Silverio wants to change his first name
and sex in his birth certificate
‣ filed for a Petition before the RTC; with LCR of Manila as
respondent
‣ Rommel is a male transsexual
‣ wants to change his name to Mely
‣ wants to change his gender from male to female
2. initial hearing scheduled
1. published in People’s Journal once a week for 3 weeks
3. RTC granted the petition
1. no opposition
2. witnesses: American Fiancee, Physician
3. Consonant with the principles of justice and equity
4. no harm injury or prejudice will be caused to anybody or
the community in granting the petition
5. no evidence was shown as ground to deny the petition
4. OSG filed a Petition for Certiorari before the CA
1. no law allowing the change of entries in the bitrh certificate
by reason of sex alteration
5. CA reversed RTC decision
1. no law allowing the change of either name/sex in the birth
certificate by reason of sex reassignment
Issue: W/N petitioner can change his name on the ground of
sex alteration
Ruling: Petition lacks merit
State has an interest in the names borne by individuals and
entities for purposes of identification. Change of name is a privilege,
not a right.
1. A persons’s first name cannot be changed on the ground of sex
reassignment
➡ RA 9048 (not anymore Rules 103/108, which made the
proceeding administrative and not judicial) provides the
grounds for change of first name
(1) first name or nickname is ridiculous, tainted with
dishonor or extremely difficult to pronounce
(2) new first name or nickname has been habitually and
continuously used by the petitioner and he has been
publicly known by that first name/ nickname in the
community
(3) the change will avoid confusion
➡ petitioner intends to make his first name compatible with his
new sex, however, change of name does not alter one’s legal
capacity or civil status
➡ RA 9048 does not sanction a change of first name for his
purpose. Rather than to avoid confusion, may only create
grave complications in the civil registry in the civil registry
and the public interest.
2. Petition in the trial court to change Rommels’ first name was not
within the RTC’s primary jurisdiction as it should have been filed
with the LCR
➡ proper remedy = under RA 9048 which is an administrative
proceeding which should have been filed in the city/
municipality where his record of birth is recorded.
- since he was born in Manila, it should have been filed in
LCR of Manila
➡ Has no merit because his name does not prejudice him at all
3. No law allows the change of sex in the birth certificate because
of sexual reassignment
➡ RA 9048 allows change of person’s sex appearing in his
birth certificate on the ground of typographical or clerical
errors
- definition: mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an
entry in the civil register; harmless, innocuous
- i.e. misspelled name, misspelled place of birth
- visible to te eyes or obvious to understanding
- no correction must involve the change of nationality, age,
status, or sex of the petitioner
- change of sex is not a mere typographical or clerical
error
➡ Art. 412 of the Civil Code which refers to entries that are
correctable under Rule 108 which is the proper procedure
for the correction which are substantial changes and
corrections in entries in the civil register, are those provided
in Art. 407 and 408
- Art. 407 authorizes the entry in civil registry of certain
acts: legitimations, acknowledgement of illegitimate
children and naturalizations; events: births, marriages,
naturalizations and deaths; judicial events: legal
separations, annulments of marriage, declaration of
nullity of marriages, adoptions, naturalizations, loss or
recovery of citizenship
- sex reassignment is not among those acts or events
mentioned in Art. 407
➡ Art. 413: civil status is governed by special laws and there is
no special law that exists which governs sex reassignment
and its effects
- “status” refers to the circumstances affecting the legal
situation — sum total of capacities and incapacities of a
person in view of his age, nationality and his family
membership
- permanent in nature not ordinarily terminable at his own
will
- person’s sex is an essential factor in marriage and family
relations; it is a part of person’s legal capacity and civil
status
➡ Civil Register Law
- sex of a person is determined at birth
- no law legally recognizing sex reassignment, the
determination of a person’s sex made at the time of his/
her birth is not attended by error is immutable
 ➡ “sex” meaning should be understood in its common terms, it
cannot be argued that sex can mean as something alterable
through surgery
➡ there is no legal basis for the petition for the correction or
change of entries in his birth certificate
4. Entries in the Birth Certificate as to First Name or Sex cannot
and may not be changed on the ground of equity
➡ will have serious and wife-ranging legal and public policy
consequences:
(a) will substantially reconfigure and greatly alter the laws on
marriage and family relations; it will allow another man who
has undergone sex reassignment to marry another man
(b) there are various laws which only apply to women: RPC,
presumption of survivorship in case of calamities
➡ Article 9 of the Civil Code is not a license for courts to
engage in judicial legislation
- the remedies which petitioner seeks involve questions of
public policy which need to be addressed solely by the
legislature, not by the courts.
Republic vs. Cagandahan
Facts:
1. Jennifer Cagandahan filed a petition for correction of entries in
birth certificate
- she is a female which developed secondary male
characteristics: she possesses both male and female sex
organs (ovaries and has no menstrual period, grown a
penis)
- she has become a male person
- wants the following changes: (1) female to male and (2)
Jennifer to Jeff
- published the notice once a week for 3 weeks in a
newspaper of general circulation
- Solicitor General entered his appearance
2. Dr. Michael Sionzon (PGH) testified
1. Jennifer has CAH - Congenital Adrenal Hyperplasia
2. respondent’s condition is permanent
3. RTC granted the petition
1. petitioner’s body produces male hormones; body and
feelings are that of male
4. OSG filed an appeal before the SC
1. non-compliance with Rule 103 (change of name) and Rule
108 (correction or cancellation of entries) = did not implead
the LCR
Issue: W/N trial court erred in ordering the correction of entries
in the birth certificate of respondent on the ground of her
medical condition
Ruling: Petition denied.
Jennifer is now Jeff. Female to male.
1. Rule 108 in connection with Art. 412 shall apply in cases where
a correction in the civil registry involves a substantial change
like in this case, a change of sex
2. Court considered compassionate calls for recognition of the
various degrees of intersex individuals as variations which
should not be subject to outright denial.
3. Jennifer is biologically or naturally intersex. The change in her
birth certificate is based on medical testimony and scientific
development. => thus in order because there is no basis for a
change in the birth certificate entry for gender
➡ female XX chromosomes
➡ where the person is biologically or naturally intersex the
determining factor in his gender classification would be what
the individual, like respondent, having reached the age of
majority, with good reason thinks of his/her sex
➡ respondent here has simply let nature take its course and
has not taken unnatural steps to arrest or interfere with what
he was born with
4. The Court affirms as valid and justified the respondent's
congenital condition and his mature decision to be a male. The
Court will not order him to remain female and what not.
➡ respondent is the one who has to live with his intersex
anatomy
➡ to him belongs the human right to pursuit of happiness and
of health; thus to him belong the primordial choice of what
courses of action to take along the path of his sexual
development and maturation
➡ in the absence of evidence showing that the respondent is
an incompetent and in the absence of evidence to show
that classifying the respondent as a male will harm other
members of society who are equally entitled to protection
under the law, the Court affirms as valid and justified the
respondent’s position and personal judgement of being a
male
5. Responden'ts change of name under Rule 103
➡ change of name is not a matter of right but under the Court’s
discretion
➡ considering that respondent’s change of name merely
recognizes his preferred gender, we find merit in
respondent’s change of name; such a change will conform
with the change in the entry in his birth certificate from
female to male
Corpuz vs. Sto. Tomas (Filipino->naturalized Canadian citizen
wanted to remarry another Filipina; can he invoke Art. 26?)
Article 26, par. 2 is only applicable to Filipinos who are married
to foreigners; SC still decided on the case because Gerbert
properly presented the divorce decree and the applicable
foreign law which clothed him with interest
Case: This is an appeal from the decision of the RTC.
Facts:
1. Corpuz is a former Filipino citizen who acquired Canadian
citizenship through naturalization in 2000
2. January 28, 2005 Corpuz married respondent Sto. Tomas.
3. Gerbert returned to Canada for work
4. When he came back, Daisylyn was having an affair with another
man. He returned to Canada to procure a divorce which was
granted by the Superior Court of Justice. The same took effect a
month later on January 8, 2006
5. Two years after, Gerbert wanted to marry another Filipina, so he
went to the Pasig City Civil Registry Office and registered the
Canadian divorce decree on his and Daisylyn’s marriage
certificate.
1. NSO informed Gerbert that the marriage between him and
Daisylyn still subsists under Philippine law; to be
enforceable, the foreign divorce decree must first be
judicially recognized by a competent Filipino court.
6. Gerbert filed a petition for judicial recognition of foreign divorce
and/or declartion of marriage as dissolved
1. Daisylyn did not file any responsive pleading but submitted
instead a notarized letter/manifestation to the trial court.
2. She offered no opposition to Gerbert’s petition and, in fact,
alleged her desire to file a similar case herself but was
prevented by financial and personal circumstances. She
thus, requested that she be considered as a party-in-interest
7. RTC ruled that Gerbert was not a proper party to institute the
action for judicial recognition of the foreign divorce decree as he
is a naturalized Canadian citizen.
Issue: W/N the 2nd paragraph of Article 26 of the FC extends to
aliens the right to petition a court of this jurisdiction for the
recognition of a foreign divorce decree.
Ruling:
➡ The alien has no right under the 2nd par. of Article 26 of the
Family Code as the substantive right it establishes is in favor of
the Filipino Spouse.
➡ However, the foreign divorce decree itself, after its authenticity
and conformity with the alien’s national law have been duly
proven according to our rules of evidence, serves as a
presumptive evidence of right in favor of Gerbert, pursuant to
Section 48, Rule 39 of the Rules of Court which provides for the
effect of foreign judgements. The same is sufficient to clothe a
party with the requisite interest to institute an action before our
courts for the recognition of the foreign judgement.
- In Gerbert’s case, since both the foreign divorce decree
and the national law of the alien, recognizing his or her
capacity to obtain a divorce, purport to be the acts of
sovereign authority, Section 24, Rule 132 of the Rules of
Court comes to play.
- Divorce must be recognized first by the Court before it
can be recorded in the civil registry — final order from a
competent court. RTC may extend to the Canadian
Divorce Decree but that does not mean that it authorized
the cancellation of the entry in the civil registry. To do so,
one must follow Rule 108 of the Rules of Court.
➡ The act of Corpuz of recording the divorce decree in the
Pasig City Registry Office based on mere persentation and
without a final order from a competent court for the same to
be judicially recognized is void and cannot produce any legal
effect.
- Art. 407 of the Civil Code - acts, events and judicial
decrees concerning the civil status of persons shall be
recorded in the Civil Register.
- A judgement of divorce is a judicial decree, although a
foreign one, affecting a person’s legal capacity and status
that must be recorded pursuant to Act no 3753 or the Law
on Registry of Civil Status:
- This must be read in relation with the requirement of a
judicial recognition of the foreign judgement before it can
be given res judicata effect.
- Need a final order from a competent court before a
foreign judgement, dissolving a marriage, can be
registered in the civil registry.
- Circular No. 4, series of 1982
- Department of Justice Opinion No. 181, series of
1982
➡ A petition for recognition of a foreign judgement is not the
proper proceeding for the cancellation of entries in the civil
registry, but Rule 108 of the Rules of Court. (Art. 412 must be
read together with Rule 108)
- Art. 412 of the Civil Code - no entry in a civil register shall
be changed or corrected, without judicial order
- Rule 108, Rules of Court - provides for a special remedial
proceeding by which entries in the civil registry may be
judicially cancelled or corrected.
- must be filed with the RTC of the province where the
corresponding civil registry is located
- civil registrar and all persons who have or claim any
interest must be made parties to the proceedings
- time and place for hearing must be published in a
newspaper of general circulation
➡ Both recognition of the divorce decree and the cancellation of
the marriage certificate of Daisylyn and Corpuz may be made
in a Rule 108 proceeding itself, as the object of special
proceedings is precisely to establish the status or a right of a
party or a particular fact. Rule 108 is the appropriate
adversarial proceeding by which the applicability of the
foreign judgement can be measured and tested in terms of
jurisdictional infirmities, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.
➡ The petition is granted. RTC decision reversed. This case is
remanded to the RTC for further proceedings in accordance
with our ruling above
*repealed by Fujiki vs. Marinay
Fujiki vs. Marinay
1st foreign husband has standing in a petition to recognize a
foreign judgement nullifying the subsequent marriage on the
ground of bigamy
Case: This is a petition for review of the decision of the RTC
denying the petitioner’s motion for reconsideration of their
dismissal of the petition for “Judicial Recognition of Foreign
Judgement” for improper venue and lack of personality
Facts:
1. Fujiki married Marinay although the former left for Japan due
to marriage not being accepted by Fujiki’s parents
2. Marinay married Maekara, was later on brought to Japan.
She was physically abused which prompted her to start
contacting Fujiki again
3. Fujiki and Marinay met in Japan and reestablish their
relationship. Fujiki helped her obtain a judgement to render
her marriage to Maekara void for being bigamous.
4. Fujiki filed a petition before the RTC for:
a) it to recognize the Foreign Judgement
b)for the court to declare the 2nd marriage void ab initio
c) to direct the LCR of QC to record the Japanese Court
Judgement on the Marriage Contract of Marinay and
Maekara
5. RTC dismissed the petition on the ground that Fujiki was not
the proper party to challenge the validity of a marriage
pursuant to AM No. 02-11-10-SC which provides that
marriages cannot be collaterally attacked.
6. RTC denies the Motion for Reconsideration of Fujiki.
Held:
1. W/N the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (AM No.
02-11-10-SC) is applicable.
➡ It is not applicable. To render it so would mean that the
court will litigate the case anew. That would defeat the
purpose of recognizing foreign judgements.
➡ Since the foreign judgement relates to the status,
condition and legal capacities of its parties, it must be in
accordance with Art. 15 of the Civil Code.
➡ The Japanese Family Court Judgement is consistent with
Philippine public policy Art 35(4).
➡ Therefore, Fujiki can prove the existence of the Japanese
Court Judgement in accordance with Rule 132, Sections
24 and 25, in relation to Rule 39, Section 48(b) of the
Rules of Court.
2. W/N a husband or wife of a prior marriage can file a petition to
recognize foreign judgement nullifying the subsequent
marriage between his or her spouse and a foreign citizen on
the ground of bigamy
➡ Yes. Because it concerns his civil status as being
married to Marinay. He has personality to file a petition
under Rule 108 to cancel the entry of marriage between
Marinay and Maekara on the basis of the foreign
Judgement.
➡ Furthermore, it being a void marriage because of
bigamy, the parties of the 2nd marriage are neither
husband and wife. AM No. 02-11-10-SC, gives standing
to the husband/wife of the prior subsisting marriage.
 Moreover, anyone can initiate a prosecution for bigamy
because any citizen has an interest in the prosecution
and prevention of crimes precisely because bigamy is a
public crime.
➡ Fujiki has standing, he may now petition a court to
recognize the Foreign Judgement nullifying the
bigamous marriage and judicially declare that such
judgement is effective in the Philippines.
3. W/N the trial court can recognize the foreign judgement in a
proceeding for cancellation or correction of entries in the
Civil Registry under Rule 108 of the Rules of Court.
➡ Yes. A recognition of a foreign judgement is not an
action to nullify a marriage. It is an action for the
Philippine courts to recognize the effectivity of a foreign
judgement, which presupposes a case which was
already tried under foreign law.
Republic vs. Olaybar
February 10, 2014
Facts:
1. Petitioner Linda Olaybar requested from the NSO a Certificate of
No Marriage as one of the requirements for her marriage with
her boyfriend of 5 years. She discovered that she was married to
a certain Yu Son Sune, a Korean National.
2. She filed a Petition for Cancellation of Entries in the Marriage
Contract.
1. impleaded the LCR of Cebu City
2. impleaded her alleged husband
3. testified on her behalf
‣ couldn’t be present as she was working in Makati as a
medical distributor in Hansao Pharma
‣ recognized the named witnesses to the marriage as
she had met them when she worked as a receptionist
in Tadels Pension House
‣ believes that her name was used by a certain Johnny
Singh who owned a travel agency, whom she gave
her personal circumstances in order for her to obtain a
passport
4. presented as witness Eufrocina Natinga, an employee of
MTCC, Branch 1 who confirmed that the marriage of Yu Son
Sune was indeed celebrated in their office, but claimed that
the wife is not private respondent.
5. a document examiner tesified that the signature appearing
in the marriage contract was forged
3. RTC granted the petition
4. OSG moved for reconsideration on the grounds that:
1. there was no clerical spelling, typographical and other
innocuous errors in the marriage contract for it to fall within
the provisions of Rule 108 of Rules of Court
2. granting the cancellation of all the entries in the wife portion
of the alleged marriage contract is, in effect, declaraing the
marriage void ab initio.
5. RTC denied MR
1. it had jurisdiction to take cognizance of cases for correction
of entries even on substantial errors under Rule 108
2. Considering that private respondent’s identity was used by
an unknown person to contract marriage with a Korean
national, it would not be feasible for respondent to institute
an action for declaration of nullity of marriage since it is not
one of the void marriages under Article 35 and 36 of the FC.
6. Petitioner comes before the SC
1. there are no errors as Linda Olaybar gave them herself
2. In directing the cancellation of the entries in the wife portion
in the marriage certificate of marriage, the RTC, in effect,
declared the marriage null and void ab initio. Thus petition
instituted by respondent is actually a petition for declaration
of nullity of marriage in the guise of a Rule 108 proceeding
Issue: W/N the cancellation of entries in the marriage contract
which in effect, nullifies the marriage may be undertaken in a Rule
108 proceeding
Ruling:
Petition denied.
1. It was established that, no such marriage was celebrated.
‣ Olaybar avers that she did not enter into a marriage with
Yu Son Sune. She only found out that she was married
upon her request for a Certificate of No Marriage from the
NSO. She then sought the cancellation of entries in the wife
portion of the marriage certificate.
‣ Olaybar complied with all the procedural rules of under
Rule 108.
‣ presented evidences and testimonies to strenghten her
claim
2. As the Court ruled in Fujiki vs. Marinay, Rule 108 cannot be
availed of to determine the validity of marriage. Respondent did
not seek the nullification of her marriage as there was no
marriage to speak of, but the correction of the record of such
marriage to reflect the truth set forth by the evidence.
➡ trial court did not in any way declare the marriage void as
there was no marriage to speak of
Rule 108 explained in RP vs. Olaybar
Rule 108 of the Rules of Court - Cancellation or Correction of entries
in the civil registry
Sec. 1. Who may file petitioner — Any person interested in any act,
event, order, or decree concerning the civil status of persons which
has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the
RTC of the province where the corresponding civil registry is
located.
Sec. 2. Entries subject to cancellation or correction
Upon good and valid grounds, the following entries in the civil
registrer may be cancelled or corrected:
(a) births
(b) marriages
(c) deaths
(d) legal separations
(e) judgements of annulments of marriage
(f) judgements declaring marriage void from the beginning
(g) legtimations
(h) adoptions
(i) acknowledgements of natural children
(j) naturalization
(k) election, loss or recovery of citizenship
(l) civil interdiction
(m)judicial determination of filiation
(n) voluntary emancipation of a minor
(o) changes of name
Sec. 3. Parties — When cancellation or corrrection of an entry in the
civil register is sought, the civil register and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding
Sec. 4. Notice and Publication — upon the filing of the petii
Rule 108
- provides the procedure for cancellation or correction of entries in
the civil registry
- may either be summary or adversary
- Summary = clerical
- Adversarial = substantial; affects civil status, citizenship or
nationality of a party
 - where the trial court has conducted proceedings where all
relevant facts have been fully and properly developed, where
opposing counsel have been given opportunity to demolish
the opposite party’s case, and where the evidence has been
thoroughly weighed and considered
- not a summary proceeding per se
- requires publication
- mandates inclusion as parties of all persons who may claim
interest
- requires civil registrar and any person in interest to file their
opposition

RP vs. Valencia - even substantial errors in a civil registry may be

corrected through a petition filed under Rule 108, with the true facts
established and the parties aggrieved by the error availing
themselves of the appropriate adversarial proceeding

TITLE X
FUNERALS

Article 305. The duty and the right to make

arrangements for the funeral of a relative shall be
in accordance with the order established for
support, under Article 199. In case of
descendants of the same degree, or of brothers
and sisters, the oldest shall be preferred. In case
of ascendants, the paternal shall have a better
right.

Order in Art. 199, FC

1. spouse
2. descendants in the nearest degree
3. ascendants in the nearest degree
4. brothers and sisters