Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
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Caravan Travel Tours v Abejar
CARAVAN TRAVEL AND TOURS INTERNATIONAL, INC., PETITIONER,
VS. ERMILINDA R. ABEJAR, RESPONDENT.
DECISION
LEONEN, J.:
The plaintiff may first prove the employer's ownership of the vehicle
involved in a mishap by presenting the vehicle's registration in evidence.
Thereafter, a disputable presumption that the requirements for an
employer's liability under Article 2180[1] of the Civil Code have been
satisfied will arise. The burden of evidence then shifts to the defendant to
show that no liability under Article 2180 has ensued. This case, thus,
harmonizes the requirements of Article 2180, in relation to Article 2176[2] of
the Civil Code, and the so-called registered-owner rule as established in
this court's rulings in Aguilar, Sr. v. Commercial Savings Bank,[3] Del
Carmen, Jr. v. Bacoy,[4] Filcar Transport Services v. Espinas,[5] and
Mendoza v. Spouses Gomez.[6]
Through this Petition for Review on Certiorari,[7] Caravel Travel and Tours
International, Inc. (Caravan) prays that the Decision[8] dated October 3,
2005 and the Resolution[9] dated November 29, 2005 of the Court of
Appeals Twelfth Division be reversed and set aside.[10]
On July 13, 2000, Jesmariane R. Reyes (Reyes) was walking along the
west-bound lane of Sampaguita Street, United Parañaque Subdivision IV,
Parañaque City.[11] A Mitsubishi L-300 van with plate number PKM 195[12]
was travelling along the east-bound lane, opposite Reyes.[13] To avoid an
incoming vehicle, the van swerved to its left and hit Reyes.[14] Alex
Espinosa (Espinosa), a witness to the accident, went to her aid and loaded
her in the back of the van.[15] Espinosa told the driver of the van, Jimmy
Bautista (Bautista), to bring Reyes to the hospital.[16] Instead of doing so,
Bautista appeared to have left the van parked inside a nearby subdivision
with Reyes still in the van.[17] Fortunately for Reyes, an unidentified civilian
came to help and drove Reyes to the hospital.[18]
Upon investigation, it was found that the registered owner of the van was
Caravan.[19] Caravan is a corporation engaged in the business of
organizing travels and tours.[20] Bautista was Caravan's employee
assigned to drive the van as its service driver.[21]
Caravan shouldered the hospitalization expenses of Reyes.[22] Despite
medical attendance, Reyes died two (2) days after the accident.[23]
Respondent Ermilinda R. Abejar (Abejar), Reyes' paternal aunt and the
person who raised her since she was nine (9) years old,[24] filed before the
Regional Trial Court of Parañaque a Complaint[25] for damages against
Bautista and Caravan. In her Complaint, Abejar alleged that Bautista was
an employee of Caravan and that Caravan is the registered owner of the
van that hit Reyes.[26]
Summons could not be served on Bautista.[27] Thus, Abejar moved to drop
Bautista as a defendant.[28] The Regional Trial Court granted her
Motion.[29]
After trial, the Regional Trial Court found that Bautista was grossly negligent
in driving the vehicle.[30] It awarded damages in favor of Abejar, as follows:
WHEREFORE, considering that the [respondent] was able to provide by
preponderance of evidence her cause of action against the defendants,
judgment is hereby rendered ordering defendants JIMMY BAUTISTA and
CARAVAN TRAVEL and TOURS[,] INC., to jointly and solidarity pay the
plaintiff, the following, to wit:
1. The amount of P35,000.00 representing actual damages;
2. The amount of P300,000.00 as moral damages;
3. The amount of P30,000.00 as exemplary damages;
4. The amount of P50,000.00 as and by way of attorney's fees; and
5. The cost of suit.
SO ORDERED.[31]
Caravan's Motion for Reconsideration[32] was denied through the October
20, 2003 Order[33] of the Regional Trial Court.
The Court of Appeals affirmed with modification the Regional Trial Court's
July 31, 2003 Decision and October 20, 2003 Order, as follows:
WHEREFORE, premises considered, the instant appeal is DENIED for lack
of merit. The assailed Decision dated 31 July 2003 and Order dated 20
October 2003 of the Regional Trial Court, City of Para[ñ]aque, Branch 258,
in Civil Case No. 00-0447 are AFFIRMED with the following
MODIFICATIONS:
Moral Damages is REDUCED to Php 200,000.00;
Death Indemnity of Php 50,000.00 is awarded;
The Php 35,000.00 actual damages, Php 200,000.00 moral damages, Php
30,000.00 exemplary damages and Php 50,000.00 attorney's fees shall
earn interest at the rate of 6% per annum computed from 31 July 2003, the
date of the [Regional Trial Court's] decision; and upon finality of this
Decision, all the amounts due shall earn interest at the rate of 12% per
annum, in lieu of 6% per annum, until full payment; and
The Php 50,000.00 death indemnity shall earn interest at the rate of 6% per
annum computed from the date of promulgation of this Decision; and upon
finality of this Decision, the amount due shall earn interest at the rate of
12% per annum, in lieu of 6% per annum, until full payment.
Costs against [Caravan].
SO ORDERED.[34]
Caravan filed a Motion for Reconsideration, but it was denied in the Court of
Appeals' assailed November 29, 2005 Resolution.[35]
Hence, this Petition was filed.
Caravan argues that Abejar has no personality to bring this suit because
she is not a real party in interest. According to Caravan, Abejar does not
exercise legal or substitute parental authority. She is also not the judicially
appointed guardian or the only living relative of the deceased.[36] She is
also not "the executor or administrator of the estate of the deceased."[37]
According to Caravan, only the victim herself or her heirs can enforce an
action based on culpa aquiliana such as Abejar's action for damages.[38]
Caravan adds that Abejar offered no documentary or testimonial evidence
to prove that Bautista, the driver, acted "within the scope of his assigned
tasks"[39] when the accident occurred.[40] According to Caravan, Bautista's
tasks only pertained to the transport of company personnel or products, and
when the accident occurred, he had not been transporting personnel or
delivering products of and for the company.[41]
Caravan also argues that "it exercised the diligence of a good father of a
family in the selection and supervision of its employees."[42]
Caravan further claims that Abejar should not have been awarded moral
damages, actual damages, death indemnity, exemplary damages, and
attorney's fees.[43] It questions the Certificate provided by Abejar as proof
of expenses since its signatory, a certain Julian Peñaloza (Peñaloza), was
not presented in court, and Caravan was denied the right to cross-examine
him.[44] Caravan argues that the statements in the Certification constitute
hearsay.[45] It also contends that based on Article 2206(3)[46] of the Civil
Code, Abejar is not entitled to moral damages.[47] It insists that moral and
exemplary damages should not have been awarded to Abejar because
Caravan acted in good faith.[48] Considering that moral and exemplary
damages are unwarranted, Caravan claims that the award of attorney's fees
should have also been removed.[49]
Lastly, Caravan argues that it should not be held solidarily liable with
Bautista since Bautista was already dropped as a party.[50]
Abejar counters that Caravan failed to provide proof that it exercised the
requisite diligence in the selection and supervision of Bautista.[51] She
adds that the Court of Appeals' ruling that Caravan is solidarily liable with
Bautista for moral damages, exemplary damages, civil indemnity ex delicto,
and attorney's fees should be upheld.[52] Abejar argues that since Caravan
is the registered owner of the van, it is directly, primarily, and solidarity
liable for the tortious acts of its driver.[53]
For resolution are the following issues:
First, whether respondent Ermilinda R. Abejar is a real party in interest who
may bring an action for damages against petitioner Caravan Travel and
Tours International, Inc. on account of Jesmariane R. Reyes' death; and
Second, whether petitioner should be held liable as an employer, pursuant
to Article 2180 of the Civil Code.
We deny the Petition.
I
Having exercised substitute parental authority, respondent suffered actual
loss and is, thus, a real party in interest in this case.
In her Complaint, respondent made allegations that would sustain her
action for damages: that she exercised substitute parental authority over

Page 2 of 26
Reyes; that Reyes' death was caused by the negligence of petitioner and its
driver; and that Reyes' death caused her damage.[54] Respondent properly
filed an action based on quasi-delict. She is a real party in interest.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure defines a real party
in interest:
RULE 3. Parties to Civil Actions
....
SECTION 2. Parties in Interest. — A real party in interest is the party who
stands to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in the name of the real
party in interest.
"To qualify a person to be a real party in interest in whose name an action
must be prosecuted, he [or she] must appear to be the present real owner
of the right sought to be enforced."[55] Respondent's capacity to file a
complaint against petitioner stems from her having exercised substitute
parental authority over Reyes.
Article 216 of the Family Code identifies the persons who exercise
substitute parental authority:
Art. 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;[56]
(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 or a judicial guardian over the property of the
child becomes necessary, the same order of preference shall be observed.
(Emphasis supplied)
Article 233 of the Family Code provides for the extent of authority of
persons exercising substitute parental authority, that is, the same as those
of actual parents:
Art. 233. The person exercising substitute parental authority shall have the
same authority over the person of the child as the parents. (Emphasis
supplied)
Both of Reyes' parents are already deceased.[57] Reyes' paternal
grandparents are also both deceased.[58] The whereabouts of Reyes'
maternal grandparents are unknown.[59] There is also no record that Reyes
has brothers or sisters. It was under these circumstances that respondent
took custody of Reyes when she was a child, assumed the role of Reyes'
parents, and thus, exercised substitute parental authority over her.[60] As
Reyes' custodian, respondent exercised the full extent of the statutorily
recognized rights and duties of a parent. Consistent with Article 220[61] of
the Family Code, respondent supported Reyes' education[62] and provided
for her personal needs.[63] To echo respondent's words in her Complaint,
she treated Reyes as if she were her own daughter.[64]
Respondent's right to proceed against petitioner, therefore, is based on two
grounds.
First, respondent suffered actual personal loss. With her affinity for Reyes, it
stands to reason that when Reyes died, respondent suffered the same
anguish that a natural parent would have felt upon the loss of one's child. It
is for this injury—as authentic and personal as that of a natural parent—that
respondent seeks to be indemnified.
Second, respondent is capacitated to do what Reyes' actual parents would
have been capacitated to do.
In Metro Manila Transit Corporation v. Court of Appeals,[65] Tapdasan, Jr.
v. People,[66] and Aguilar, Sr. v. Commercial Savings Bank,[67] this court
allowed natural parents of victims to recover damages for the death of their
children. Inasmuch as persons exercising substitute parental authority have
the full range of competencies of a child's actual parents, nothing prevents
persons exercising substitute parental authority from similarly possessing
the right to be indemnified for their ward's death.
We note that Reyes was already 18 years old when she died. Having
reached the age of majority, she was already emancipated upon her death.
While parental authority is terminated upon emancipation,[68] respondent
continued to support and care for Reyes even after she turned 18.[69]
Except for the legal technicality of Reyes' emancipation, her relationship
with respondent remained the same. The anguish and damage caused to
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
respondent by Reyes' death was no different because of Reyes'
emancipation.
In any case, the termination of respondent's parental authority is not an
insurmountable legal bar that precludes the filing of her Complaint. In
interpreting Article 1902[70] of the old Civil Code, which is substantially
similar to the first sentence of Article 2176[71] of the Civil Code, this court in
The Receiver For North Negros Sugar Company, Inc. v. Ybañez, et al.[72]
ruled that brothers and sisters may recover damages, except moral
damages, for the death of their sibling.[73] This court declared that Article
1902 of the old Civil Code (now Article 2176) is broad enough to
accommodate even plaintiffs who are not relatives of the deceased,
thus:[74]
This Court said: "Article 1902 of the Civil Code declares that any person
who by an act or omission, characterized by fault or negligence, causes
damage to another shall be liable for the damage done ... a person is liable
for damage done to another by any culpable act; and by any culpable act is
meant any act which is blameworthy when judged by accepted legal
standards. The idea thus expressed is undoubtedly broad enough to include
any rational conception of liability for the tortious acts likely to be developed
in any society." The word "damage" in said article, comprehending as it
does all that are embraced in its meaning, includes any and all damages
that a human being may suffer in any and all the manifestations of his life:
physical or material, moral or psychological, mental or spiritual, financial,
economic, social, political, and religious.
It is particularly noticeable that Article 1902 stresses the passive subject of
the obligation to pay damages caused by his fault or negligence. The article
does not limit or specify the active subjects, much less the relation that must
exist between the victim of the culpa aquiliana and the person who may
recover damages, thus warranting the inference that, in principle, anybody
who suffers any damage from culpa aquiliana, whether a relative or not of
the victim, may recover damages from the person responsible therefor[.][75]
(Emphasis supplied, citations omitted)
II
Respondent's Complaint is anchored on an employer's liability for quasi-
delict provided in Article 2180, in relation to Article 2176 of the Civil Code.
Articles 2176 and 2180 read:
ARTICLE 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 pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
.....
ARTICLE 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 caused by the minor children who live in their
company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special
agent; but not when the damage has been caused by the official to whom
the task done properly pertains, in which case what is provided in article
2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable
for damages caused by their pupils and students or apprentices, so long as
they remain in their custody.
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage. (Emphasis supplied)
Contrary to petitioner's position, it was not fatal to respondent's cause that
she herself did not adduce proof that Bautista acted within the scope of his
authority. It was sufficient that Abejar proved that petitioner was the
registered owner of the van that hit Reyes.

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The resolution of this case must consider two (2) rules. First, Article 2180's
specification that "[e]mployers shall be liable for the damages caused by
their employees . . . acting within the scope of their assigned tasks[.]"
Second, the operation of the registered-owner rule that registered owners
are liable for death or injuries caused by the operation of their vehicles.[76]
These rules appear to be in conflict when it comes to cases in which the
employer is also the registered owner of a vehicle. Article 2180 requires
proof of two things: first, an employment relationship between the driver and
the owner; and second, that the driver acted within the scope of his or her
assigned tasks. On the other hand, applying the registered-owner rule only
requires the plaintiff to prove that the defendant-employer is the registered
owner of the vehicle.
The registered-owner rule was articulated as early as 1957 in Erezo, et al.
v. Jepte,[77] where this court explained that the registration of motor
vehicles, as required by Section 5(a)[78] of Republic Act No. 4136, the Land
Transportation and Traffic Code, was necessary "not to make said
registration the operative act by which ownership in vehicles is transferred, .
. . but to permit the use and operation of the vehicle upon any public
highway[.]"[79] Its "main aim . . . is to identify the owner so that if any
accident happens, or that any damage or injury is caused by the vehicle on
the public highways, responsibility therefor can be fixed on a definite
individual, the registered owner."[80]
Erezo notwithstanding, Castilex Industrial Corporation v. Vasquez, Jr.[81]
relied on Article 2180 of the Civil Code even though the employer was also
the registered owner of the vehicle.[82] The registered-owner rule was not
mentioned.
In Castilex, Benjamin Abad (Abad) was a manager of Castilex Industrial
Corporation (Castilex). Castilex was also the registered owner of a Toyota
Hi-Lux pick-up truck. While Abad was driving the pick-up truck, it collided
with a motorcycle driven by Romeo Vasquez (Vasquez). Vasquez died a
few days after. Vasquez's parents filed a case for damages against Abad
and Castilex.[83] Castilex denied liability, arguing that Abad was acting in
his private capacity at the time of the accident.[84]
This court absolved Castilex of liability, reasoning that it was incumbent
upon the plaintiff to prove that the negligent employee was acting within the
scope of his assigned tasks.[85] Vasquez's parents failed to prove this.[86]
This court outlined the process necessary for an employer to be held liable
for the acts of its employees and applied the process to the case:
Under the fifth paragraph of Article 2180, whether or not engaged in any
business or industry, an employer is liable for the torts committed by
employees within the scope of his assigned tasks. But it is necessary to
establish the employer-employee relationship; once this is done, the plaintiff
must show, to hold the employer liable, that the employee was acting within
the scope of his assigned task when the tort complained of was committed.
It is only then that the employer may find it necessary to interpose the
defense of due diligence in the selection and supervision of the employee.
....
Since there is paucity of evidence that ABAD was acting within the scope of
the functions entrusted to him, petitioner CASTILEX had no duty to show
that it exercised the diligence of a good father of a family in providing ABAD
with a service vehicle. Thus, justice and equity require that petitioner be
relieved of vicarious liability for the consequences of the negligence of
ABAD in driving its vehicle. (Emphasis supplied, citations omitted)[87]
Aguilar, Sr. v. Commercial Savings Bank recognized the seeming conflict
between Article 2180 and the registered-owner rule and applied the
latter.[88]
In Aguilar, Sr., a Mitsubishi Lancer, registered in the name of Commercial
Savings Bank and driven by the bank's assistant vice-president Ferdinand
Borja, hit Conrado Aguilar, Jr. The impact killed Conrado Aguilar, Jr. His
father, Conrado Aguilar, Sr. filed a case for damages against Ferdinand
Borja and Commercial Savings Bank. The Regional Trial Court found
Commercial Savings Bank solidarity liable with Ferdinand Borja.[89]
However, the Court of Appeals disagreed with the trial court's Decision and
dismissed the complaint against the bank. The Court of Appeals reasoned
that Article 2180 requires the plaintiff to prove that at the time of the
accident, the employee was acting within the scope of his or her assigned
tasks. The Court of Appeals found no evidence that Ferdinand Borja was
acting as the bank's assistant vice-president at the time of the accident.[90]
The Court of Appeals' ruling was reversed by this court.[91] Aguilar, Sr.
reiterated the following pronouncements made in Erezo in ruling that the
bank, as the registered owner of the vehicle, was primarily liable to the
plaintiff:[92]
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
The main aim of motor vehicle registration is to identify the owner so that if
any accident happens, or that any damage or injury is caused by the vehicle
on the public highways, responsibility therefor can be fixed on a definite
individual, the registered owner....
....
A victim of recklessness on the public highways is usually without means to
discover or identify the person actually causing the injury or damage. He
has no means other than by a recourse to the registration in the Motor
Vehicles Office to determine who is the owner. The protection that the law
aims to extend to him would become illusory were the registered owner
given the opportunity to escape liability by disproving his ownership.[93]
Thus, Aguilar, Sr. concluded:
In our view, respondent bank, as the registered owner of the vehicle, is
primarily liable for Aguilar, Jr.'s death. The Court of Appeals erred when it
concluded that the bank was not liable simply because (a) petitioner did not
prove that Borja was acting as the bank's vice president at the time of the
accident; and (b) Borja had, according to respondent bank, already bought
the car at the time of the mishap. For as long as the respondent bank
remained the registered owner of the car involved in the vehicular accident,
it could not escape primary liability for the death of petitioner's son.[94]
(Emphasis supplied)
Preference for the registered-owner rule became more pronounced in Del
Carmen, Jr. v. Bacoy:[95]
Without disputing the factual finding of the [Court of Appeals] that Allan was
still his employee at the time of the accident, a finding which we see no
reason to disturb, Oscar Jr. contends that Allan drove the jeep in his private
capacity and thus, an employer's vicarious liability for the employee's fault
under Article 2180 of the Civil Code cannot apply to him.
The contention is no longer novel. In Aguilar Sr. v. Commercial Savings
Bank, the car of therein respondent bank caused the death of Conrado
Aguilar, Jr. while being driven by its assistant vice president. Despite Article
2180, we still held the bank liable for damages for the accident as said
provision should defer to the settled doctrine concerning accidents involving
registered motor vehicles, i.e., that the registered owner of any vehicle,
even if not used for public service, would primarily be responsible to the
public or to third persons for injuries caused the latter while the vehicle was
being driven on the highways or streets. We have already ratiocinated that:
The main aim of motor vehicle registration is to identify the owner so that if
any accident happens, or that any damage or injury is caused by the vehicle
on the public highways, responsibility therefor can be fixed on a definite
individual, the registered owner. Instances are numerous where vehicles
running on public highways caused accidents or injuries to pedestrians or
other vehicles without positive identification of the owner or drivers, or with
very scant means of identification. It is to forestall these circumstances, so
inconvenient or prejudicial to the public, that the motor vehicle registration is
primarily ordained, in the interest of the determination of persons
responsible for damages or injuries caused on public highways.[96]
(Emphasis supplied, citations omitted)
Filcar Transport Services v. Espinas[97] stated that the registered owner of
a vehicle can no longer use the defenses found in Article 2180:[98]
Neither can Filcar use the defenses available under Article 2180 of the Civil
Code - that the employee acts beyond the scope of his assigned task or
that it exercised the due diligence of a good father of a family to prevent
damage - because the motor vehicle registration law, to a certain extent,
modified Article 2180 of the Civil Code by making these defenses
unavailable to the registered owner of the motor vehicle. Thus, for as long
as Filcar is the registered owner of the car involved in the vehicular
accident, it could not escape primary liability for the damages caused to
Espinas.[99]
Mendoza v. Spouses Gomez[100] reiterated this doctrine.
However, Aguilar, Sr., Del Carmen, Filcar, and Mendoza should not be
taken to mean that Article 2180 of the Civil Code should be completely
discarded in cases where the registered-owner rule finds application.
As acknowledged in Filcar, there is no categorical statutory pronouncement
in the Land Transportation and Traffic Code stipulating the liability of a
registered owner.[101] The source of a registered owner's liability is not a
distinct statutory provision, but remains to be Articles 2176 and 2180 of the
Civil Code:
While Republic Act No. 4136 or the Land Transportation and Traffic Code
does not contain any provision on the liability of registered owners in case
of motor vehicle mishaps, Article 2176, in relation with Article 2180, of the
Civil Code imposes an obligation upon Filcar, as registered owner, to
answer for the damages caused to Espinas' car.[102]
Thus, it is imperative to apply the registered-owner rule in a manner that
harmonizes it with Articles 2176 and 2180 of the Civil Code. Rules must be
construed in a manner that will harmonize them with other rules so as to
form a uniform and consistent system of jurisprudence.[103] In light of this,
the words used in Del Carmen are particularly notable. There, this court
 Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
Page 4 of 26
stated that Article 2180 "should defer to"[104] the registered-owner rule. It ....
never stated that Article 2180 should be totally abandoned. Q
:
Therefore, the appropriate approach is that in cases where both the Do you recall what kind of driver's license is this?
registered-owner rule and Article 2180 apply, the plaintiff must first establish A
that the employer is the registered owner of the vehicle in question. Once :
the plaintiff successfully proves ownership, there arises a disputable The Land Transportation Office.
presumption that the requirements of Article 2180 have been proven. As a Q
consequence, the burden of proof shifts to the defendant to show that no :
liability under Article 2180 has arisen. Is it a professional driver's license or non-proffesional [sic] driver's license?
A
This disputable presumption, insofar as the registered owner of the vehicle :
in relation to the actual driver is concerned, recognizes that between the Non-professional.
owner and the victim, it is the former that should carry the costs of moving Q
forward with the evidence. The victim is, in many cases, a hapless :
pedestrian or motorist with hardly any means to uncover the employment You are not sure?
relationship of the owner and the driver, or any act that the owner may have COURT
done in relation to that employment. :
Non professional, professional?
The registration of the vehicle, on the other hand, is accessible to the A
public. :
It's a non-professional.[113] (Emphasis supplied)
Here, respondent presented a copy of the Certificate of Registration[105] of Employing a person holding a non-professional driver's license to operate
the van that hit Reyes.[106] The Certificate attests to petitioner's ownership another's motor vehicle violates Section 24 of the Land Transportation and
of the van. Petitioner itself did not dispute its ownership of the van. Traffic Code, which provides:
Consistent with the rule we have just stated, a presumption that the SEC. 24. Use of driver's license and badge. — ...
requirements of Article 2180 have been satisfied arises. It is now up to
petitioner to establish that it incurred no liability under Article 2180. This it ....
can do by presenting proof of any of the following: first, that it had no
employment relationship with Bautista; second, that Bautista acted outside No owner of a motor vehicle shall engage, employ, or hire any person to
the scope of his assigned tasks; or third, that it exercised the diligence of a operate such motor vehicle, unless the person sought to be employed is a
good father of a family in the selection and supervision of Bautista.[107] duly licensed professional driver.
Evidently, petitioner did not only fail to exercise due diligence when it
On the first, petitioner admitted that Bautista was its employee at the time of selected Bautista as service driver; it also committed an actual violation of
the accident.[108] law.

On the second, petitioner was unable to prove that Bautista was not acting To prove that it exercised the required diligence in supervising Bautista,
within the scope of his assigned tasks at the time of the accident. When petitioner presented copies of several memoranda and company rules.[114]
asked by the court why Bautista was at the place of the accident when it These, however, are insufficient because petitioner failed to prove actual
occurred, Sally Bellido, petitioner's accountant and supervisor,[109] testified compliance. Metro Manila Transit Corporation v. Court of Appeals[115]
that she did not "have the personal capacity to answer [the question]"[110] emphasized that to establish diligence in the supervision of employees, the
and that she had no knowledge to answer it: issuance of company policies must be coupled with proof of compliance:
COURT Due diligence in the supervision of employees, on the other hand, includes
: the formulation of suitable rules and regulations for the guidance of
Madam Witness, do you know the reason why your driver, Jimmy Bautista, employees and the issuance of proper instructions intended for the
at around 10:00 o' clock in the morning of July 13, 2000 was in the vicinity protection of the public and persons with whom the employer has relations
of Barangay Marcelo Green, United Parañaque Subdivision 4? through his or its employees and the imposition of necessary disciplinary
WITNESS measures upon employees in case of breach or as may be warranted to
: ensure the performance of acts indispensable to the business of and
I don't have the personal capacity to answer that, Sir. beneficial to their employer. To this, we add that actual implementation and
Q monitoring of consistent compliance with said rules should be the constant
: concern of the employer, acting through dependable supervisors who
So you don't have any knowledge why he was there? should regularly report on their supervisory functions.
A
: In order that the defense of due diligence in the selection and supervision of
Yes, Sir.[111] (Emphasis supplied) employees may be deemed sufficient and plausible, it is not enough to
Sally Bellido's testimony does not affect the presumption that Article 2180's emptily invoke the existence of said company guidelines and policies on
requirements have been satisfied. Mere disavowals are not proof that hiring and supervision. As the negligence of the employee gives rise to the
suffice to overturn a presumption. To this end, evidence must be adduced. presumption of negligence on the part of the employer, the latter has the
However, petitioner presented no positive evidence to show that Bautista burden of proving that it has been diligent not only in the selection of
was acting in his private capacity at the time of the incident. employees but also in the actual supervision of their work. The mere
allegation of the existence of hiring procedures and supervisory policies,
On the third, petitioner likewise failed to prove that it exercised the requisite without anything more, is decidedly not sufficient to overcome presumption.
diligence in the selection and supervision of Bautista.
We emphatically reiterate our holding, as a warning to all employers, that
In its selection of Bautista as a service driver, petitioner contented itself with "(t)he mere formulation of various company policies on safety without
Bautista's submission of a non-professional driver's license.[112] Hence, in showing that they were being complied with is not sufficient to exempt
Sally Balledo's cross-examination: petitioner from liability arising from negligence of its employees. It is
Q incumbent upon petitioner to show that in recruiting and employing the
: erring driver the recruitment procedures and company policies on efficiency
. . . when he was promoted as service driver, of course, there were certain and safety were followed." Paying lip-service to these injunctions or merely
requirements and among other else, you made mention about a driver's going through the motions of compliance therewith will warrant stern
license. sanctions from the Court.[116] (Emphasis supplied, citations omitted)
A For failing to overturn the presumption that the requirements of Article 2180
: have been satisfied, petitioner must be held liable.
Yes, Sir.
Q III
:
Would you be able to show to this Honorable Court whether indeed this Petitioner's argument that it should be excused from liability because
person did submit a driver's license to your company? Bautista was already dropped as a party is equally unmeritorious. The
A liability imposed on the registered owner is direct and primary.[117] It does
: not depend on the inclusion of the negligent driver in the action. Agreeing to
Yes, Sir.

Page 5 of 26
petitioner's assertion would render impotent the rationale of the motor
registration law in fixing liability on a definite person.
Bautista, the driver, was not an indispensable party under Rule 3, Section
7[118] of the 1997 Rules of Civil Procedure. Rather, he was a necessary
party under Rule 3, Section 8.[119] Instead of insisting that Bautista—who
was nothing more than a necessary party—should not have been dropped
as a defendant, or that petitioner, along with Bautista, should have been
dropped, petitioner (as a co-defendant insisting that the action must
proceed with Bautista as party) could have opted to file a cross-claim
against Bautista as its remedy.
The 1997 Rules of Civil Procedure spell out the rules on joinder of
indispensable and necessary parties. These are intended to afford "a
complete determination of all possible issues, not only between the parties
themselves but also as regards to other persons who may be affected by
the judgment."[120]
However, while an exhaustive resolution of disputes is desired in every
case, the distinction between indispensable parties and necessary parties
delineates a court's capacity to render effective judgment. As defined by
Rule 3, Section 7, indispensable parties are "[p]arties in interest without
whom no final determination can be had of an action[.]" Thus, their non-
inclusion is debilitating: "the presence of indispensable parties is a condition
for the exercise of juridical power and when an indispensable party is not
before the court, the action should be dismissed."[121]
In contrast, a necessary party's presence is not imperative, and his or her
absence is not debilitating. Nevertheless, it is preferred that they be
included in order that relief may be complete.
The concept of indispensable parties, as against parties whose inclusion
only allows complete relief, was explained in Arcelona v. Court of
Appeals:[122]
An indispensable party is a party who has such an interest in the
controversy or subject matter that a final adjudication cannot be made, in
his absence, without injuring or affecting that interest, a party who has not
only an interest in the subject matter of the controversy, but also has an
interest of such nature that a final decree cannot be made without affecting
his interest or leaving the controversy in such a condition that its final
determination may be wholly inconsistent with equity and good conscience.
It has also been considered that an indispensable party is a person in
whose absence there cannot be a determination between the parties
already before the court which is effective, complete, or equitable. Further,
an indispensable party is one who must be included in an action before it
may properly go forward.
A person is not an indispensable party, however, if his interest in the
controversy or subject matter is separable from the interest of the other
parties, so that it will not necessarily be directly or injuriously affected by a
decree which does complete justice between them. Also, a person is not an
indispensable party if his presence would merely permit complete relief
between him and those already parties to the action, or if he has no interest
in the subject matter of the action. It is not a sufficient reason to declare a
person to be an indispensable party that his presence will avoid multiple
litigation.[123]
Petitioner's interest and liability is distinct from that of its driver. Regardless
of petitioner's employer-employee relationship with Bautista, liability
attaches to petitioner on account of its being the registered owner of a
vehicle that figures in a mishap. This alone suffices. A determination of its
liability as owner can proceed independently of a consideration of how
Bautista conducted himself as a driver. While certainly it is desirable that a
determination of Bautista's liability be made alongside that of the owner of
the van he was driving, his non-inclusion in these proceedings does not
absolutely hamper a judicious resolution of respondent's plea for relief.
IV
The Court of Appeals committed no reversible error when it awarded actual
damages to respondent. Respondent's claim for actual damages was based
on the Certificate[124] issued and signed by a certain Peñaloza showing
that respondent paid Peñaloza P35,000.00 for funeral expenses.
Contrary to petitioner's claim, this Certificate is not hearsay. Evidence is
hearsay when its probative value is based on the personal knowledge of a
person other than the person actually testifying.[125] Here, the Certificate
sought to establish that respondent herself paid Peñaloza P35,000.00 as
funeral expenses for Reyes' death:[126]
Na ang aking kontrata ay nagkakahalaga ng P35,000-00 [sic] sa lahat ng
nagamit na materiales at labor nito kasama ang lote na ibinayad sa akin ni
Gng. ERMILINDA REYES ABEJAR na siyang aking kakontrata sa
pagsasagawa ng naturang paglilibingan.[127] (Emphasis supplied)
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
It was respondent herself who identified the Certificate. She testified that
she incurred funeral expenses amounting to P35,000.00, that she paid this
amount to Peñaloza, and that she was present when Peñaloza signed the
Certificate:
[ATTY. LIM] :
Did you incur any expenses?
A:
Meron po.
Q:
How much did you spend for the death of Jesmarian [sic] Reyes?
A:
'Yun pong P35,000.00 na pagpapalibing at saka...
Q:
You said that you spent P35,000.00. Do you have any evidence or proof
that you spent that amount?
A:
Meron po.
Q:
Showing to you this sort of certification. What relation has this...
A:
'Yan po' yung contractor nagumawa.
Q:
Contractor of what?
A:
'Yan po' yung mismong binilhan ko ng lupa at nitso.
....
ATTY. LIM :
There is a signature at the top of the printed name Julian Penalosa [sic].
Whose signature is this?
A:
'Yan po' yung mismong contractor.
....
Q:
Did you see him sign this?
A:
Opo.[128] (Emphasis supplied)
Respondent had personal knowledge of the facts sought to be proved by
the Certificate, i.e. that she spent P35,000.00 for the funeral expenses of
Reyes. Thus, the Certificate that she identified and testified to is not
hearsay. It was not an error to admit this Certificate as evidence and basis
for awarding P35,000.00 as actual damages to respondent.
The Court of Appeals likewise did not err in awarding civil indemnity and
exemplary damages.
Article 2206 of the Civil Code provides:
ARTICLE 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there may
have been mitigating circumstances[.]
Further, Article 2231 of the Civil Code provides:
ARTICLE 2231. In quasi-delicts, exemplary damages may be granted if the
defendant acted with gross negligence.
Both the Court of Appeals and the Regional Trial Court found Bautista
grossly negligent in driving the van and concluded that Bautista's gross
negligence was the proximate cause of Reyes' death. Negligence and
causation are factual issues.[129] Findings of fact, when established by the
trial court and affirmed by the Court of Appeals, are binding on this court
unless they are patently unsupported by evidence or unless the judgment is
grounded on a misapprehension of facts.[130] Considering that petitioner
has not presented any evidence disputing the findings of the lower courts
regarding Bautista's negligence, these findings cannot be disturbed in this
appeal. The evidentiary bases for the award of civil indemnity and
exemplary damages stand. As such, petitioner must pay the exemplary
damages arising from the negligence of its driver.[131] For the same
reasons, the award of P50,000.00 by way of civil indemnity is justified.[132]
The award of moral damages is likewise proper.
Article 2206(3) of the Civil Code provides:
ARTICLE 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there may
have been mitigating circumstances. In addition:
....
(3)
The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the
death of the deceased. (Emphasis supplied)
For deaths caused by quasi-delict, the recovery of moral damages is limited
to the spouse, legitimate and illegitimate descendants, and ascendants of
the deceased.[133]

Page 6 of 26
Persons exercising substitute parental authority are to be considered
ascendants for the purpose of awarding moral damages. Persons
exercising substitute parental authority are intended to stand in place of a
child's parents in order to ensure the well-being and welfare of a child.[134]
Like natural parents, persons exercising substitute parental authority are
required to, among others, keep their wards in their company,[135] provide
for their upbringing,[136] show them love and affection,[137] give them
advice and counsel,[138] and provide them with companionship and
understanding.[139] For their part, wards shall always observe respect and
obedience towards the person exercising parental authority.[140] The law
forges a relationship between the ward and the person exercising substitute
parental authority such that the death or injury of one results in the damage
or prejudice of the other.
Moral damages are awarded to compensate the claimant for his or her
actual injury, and not to penalize the wrongdoer.[141] Moral damages
enable the injured party to alleviate the moral suffering resulting from the
defendant's actions.[142] It aims to restore—to the extent possible—"the
spiritual status quo ante[.]"[143]
Given the policy underlying Articles 216 and 220 of the Family Code as well
as the purposes for awarding moral damages, a person exercising
substitute parental authority is rightly considered an ascendant of the
deceased, within the meaning of Article 2206(3) of the Civil Code. Hence,
respondent is entitled to moral damages.
As exemplary damages have been awarded and as respondent was
compelled to litigate in order to protect her interests, she is rightly entitled to
attorney's fees.[144]
However, the award of interest should be modified. This modification must
be consistent with Nacar v. Gallery Frames,[145] in which we ruled:
When an obligation, not constituting a loan or forbearance of money, is
breached, an interest on the amount of damages awarded may be imposed
at the discretion of the court at the rate of 6% per annum. No interest,
however, shall be adjudged on unliquidated claims or damages, except
when or until the demand can be established with reasonable certainty.
Accordingly, where the demand is established with reasonable certainty, the
interest shall begin to run from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code), but when such certainty cannot be so
reasonably established at the time the demand is made, the interest shall
begin to run only from the date the judgment of the court is made (at which
time the quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally adjudged.
When the judgment of the court awarding a sum of money becomes final
and executory, the rate of legal interest, whether the case falls under
paragraph 1 or paragraph 2, above, shall be 6% per annum from such
finality until its satisfaction, this interim period being deemed to be by then
an equivalent to a forbearance of credit.[146] (Emphasis supplied)
WHEREFORE, the Decision of the Court of Appeals dated October 3, 2005
is AFFIRMED with the following MODIFICATIONS: (a) actual damages in
the amount of P35,000.00 shall earn interest at the rate of 6% per annum
from the time it was judicially or extrajudicially demanded from petitioner
Caravan Travel and Tours International, Inc. until full satisfaction; (b) moral
damages, exemplary damages, and attorney's fees shall earn interest at the
rate of 6% per annum from the date of the Regional Trial Court Decision
until full satisfaction; and (c) civil indemnity shall earn interest at the rate of
6% per annum from the date of the Court of Appeals Decision until full
satisfaction.
SO ORDERED.
Carpio, (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.
FOOTNOTES
CIVIL CODE, art. 2180 provides:
ARTICLE 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.
....
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
....
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.
CIVIL CODE, art. 2176 provides:
ARTICLE 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 pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
CIVIL CODE, art. 2206(3) provides:
ARTICLE 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there may
have been mitigating circumstances. In addition:
....
(3) The spouse, legitimate and illegitimate descendants and ascendants of
the deceased may demand moral damages for mental anguish by reason of
the death of the deceased.
FAMILY CODE, art. 214 provides:
Art. 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.
FAMILY CODE, art. 220 provides:
Art. 220. The parents and those exercising parental authority shall have
with the respect to their unemancipated children on 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 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;
(5)
To represent them in all matters affecting their interests;
(6)
To demand from them respect and obedience;
(7)
To impose discipline on them as may be required under the circumstances;
and
(8)
To perform such other duties as are imposed by law upon parents and
guardians.
CIVIL CODE (1889), art. 1902 provides:
ARTICLE 1902. Any person who by an act or omission causes damage to
another by his fault or negligence shall be liable for the damage so done.
CIVIL CODE, art. 2176, first sentence, provides:
ARTICLE 2176: Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
TRANSP. & TRAFFIC CODE, sec. 5 provides:
SECTION 5. Compulsory Registration of Motor Vehicles. - (a) All motor
vehicles and trailer of any type used or operated on or upon any highway of
the Philippines must be registered with the Bureau of Land Transportation
for the current year in accordance with the provisions of this Act.

Page 7 of 26
A reading of Article 2180 reveals that in order for an employer to be liable
for the acts of its employee, it is required that the employment relationship
is established, that the employee acted within the scope of his or her
assigned tasks, and that the employer failed to exercise the diligence of a
good father of a family in the selection and supervision of the employee.
See Castilex Industrial Corp. v. Vasquez, Jr., 378 Phil. 1009, 1017 (1999)
[Per C.J. Davide, Jr., First Division] and Metro Manila Transit Corporation v.
Court of Appeals, G.R. No. 104408, June 21, 1993, 223 SCRA 521, 539
[Per J. Regalado, Second Division].
1997 RULES OF CIV. PROC., Rule 3, sec. 7 provides:
RULE 3. Parties to Civil Actions
....
SECTION 7. Compulsory Joinder of Indispensable Parties. — Parties in
interest without whom no final determination can be had of an action shall
be joined either as plaintiffs or defendants.
1997 RULES OF CIV. PROC., Rule 3, sec. 8 provides:
RULE 3. Parties to Civil Actions
SECTION 8. Necessary Party. — A necessary party is one who is not
indispensable but who ought to be joined as a party if complete relief is to
be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action.
School of Holy Spirit v Taguiam
G.R. No. 165565 July 14, 2008
SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY and/or SR. CRISPINA
A. TOLENTINO, S.Sp.S., Petitioners,
vs.
CORAZON P. TAGUIAM, Respondent.
DECISION
QUISUMBING, J.:
This petition assails the Decision1 dated June 7, 2004 of the Court of
Appeals in CA-G.R. SP No. 81480, which reversed the Resolution2 dated
September 20, 2002 of the National Labor Relations Commission (NLRC) in
NLRC NCR CA No. 031627-02. The NLRC had affirmed the Decision3
dated March 26, 2002 of the Labor Arbiter dismissing respondent’s
complaint for illegal dismissal. This petition likewise assails the Resolution4
dated September 30, 2004 of the Court of Appeals denying petitioners’
motion for reconsideration.
The antecedent facts are as follows:
Respondent Corazon P. Taguiam was the Class Adviser of Grade 5-
Esmeralda of the petitioner, School of the Holy Spirit of Quezon City. On
March 10, 2000, the class president, wrote a letter5 to the grade school
principal requesting permission to hold a year-end celebration at the school
grounds. The principal authorized the activity and allowed the pupils to use
the swimming pool. In this connection, respondent distributed the
parent’s/guardian’s permit forms to the pupils.
Respondent admitted that Chiara Mae Federico’s permit form6 was
unsigned. Nevertheless, she concluded that Chiara Mae was allowed by her
mother to join the activity since her mother personally brought her to the
school with her packed lunch and swimsuit.
Before the activity started, respondent warned the pupils who did not know
how to swim to avoid the deeper area. However, while the pupils were
swimming, two of them sneaked out. Respondent went after them to verify
where they were going.
Unfortunately, while respondent was away, Chiara Mae drowned. When
respondent returned, the maintenance man was already administering
cardiopulmonary resuscitation on Chiara Mae. She was still alive when
respondent rushed her to the General Malvar Hospital where she was
pronounced dead on arrival.
On May 23, 2000, petitioners issued a Notice of Administrative Charge7 to
respondent for alleged gross negligence and required her to submit her
written explanation. Thereafter, petitioners conducted a clarificatory hearing
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
which respondent attended. Respondent also submitted her Affidavit of
Explanation.8
On July 31, 2000, petitioners dismissed respondent on the ground of gross
negligence resulting to loss of trust and confidence.9 Meanwhile, Chiara
Mae’s parents filed a ₱7 Million damage suit against petitioners and
respondent, among others. They also filed against respondent a criminal
complaint for reckless imprudence resulting in homicide.
On July 25, 2001, respondent in turn filed a complaint10 against the school
and/or Sr. Crispina Tolentino for illegal dismissal, with a prayer for
reinstatement with full backwages and other money claims, damages and
attorney’s fees.
In dismissing the complaint, the Labor Arbiter declared that respondent was
validly terminated for gross neglect of duty. He opined that Chiara Mae
drowned because respondent had left the pupils without any adult
supervision. He also noted that the absence of adequate facilities should
have alerted respondent before allowing the pupils to use the swimming
pool. The Labor Arbiter further concluded that although respondent’s
negligence was not habitual, the same warranted her dismissal since death
resulted therefrom.
Respondent appealed to the NLRC which, however, affirmed the dismissal
of the complaint.
Aggrieved, respondent instituted a petition for certiorari before the Court of
Appeals, which ruled in her favor. The appellate court observed that there
was insufficient proof that respondent’s negligence was both gross and
habitual. The Court of Appeals disposed, thus:
WHEREFORE, … the Court hereby GRANTS the petition. The assailed
September 20, 2002 Resolution of the National Labor Relations
Commission entitled Corazon Taguiam vs. School of the Holy Spirit and/or
Sister Crispina Tolentino[,] NLRC NCR Case No. 00-07-03877-01[,] NLRC
NCR CA No. 031627-02 is hereby REVERSED and SET ASIDE, and a new
one is hereby ENTERED directing the private respondent the School of the
Holy Spirit to:
(1) Pay the petitioner full backwages, plus all other benefits, bonuses and
general increases to which she would have been normally entitled, had she
not been dismissed and had she not been forced to stop working computed
up to the finality of this decision;
(2) Pay the petitioner separation pay equivalent to one (1) month for every
year of service in addition to full backwages;
(3) Pay the petitioner an amount equivalent to 10% of the judgment award
as attorney’s fees;
(4) Pay the cost of this suit.
SO ORDERED.11
In this petition, petitioners contend that the Court of Appeals erred in:
… REVERSING AND SETTING ASIDE THE DECISION AND
RESOLUTION OF THE NATIONAL LABOR RELATIONS COMMISSION
AFFIRMING THE DECISION OF THE LABOR ARBITER DISMISSING THE
COMPLAINT FOR LACK OF MERIT.12
Simply stated, the sole issue presented for our resolution is whether
respondent’s dismissal on the ground of gross negligence resulting to loss
of trust and confidence was valid.
The issue of whether a party is negligent is a question of fact. As a rule, the
Supreme Court is not a trier of facts and this applies with greater force in
labor cases.13 However, where the issue is shrouded by a conflict of factual
perception, we are constrained to review the factual findings of the Court of
Appeals. In this case, the findings of facts of the appellate court contradict
those of the Labor Arbiter and the NLRC.14
Under Article 28215 of the Labor Code, gross and habitual neglect of duties
is a valid ground for an employer to terminate an employee. Gross
negligence implies a want or absence of or a failure to exercise slight care
or diligence, or the entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid them.16
Habitual neglect implies repeated failure to perform one’s duties for a period
of time, depending upon the circumstances.17
Our perusal of the records leads us to conclude that respondent had been
grossly negligent. First, it is undisputed that Chiara Mae’s permit form was
unsigned. Yet, respondent allowed her to join the activity because she

Page 8 of 26
assumed that Chiara Mae’s mother has allowed her to join it by personally
bringing her to the school with her packed lunch and swimsuit.
The purpose of a permit form is precisely to ensure that the parents have
allowed their child to join the school activity involved. Respondent cannot
simply ignore this by resorting to assumptions. Respondent admitted that
she was around when Chiara Mae and her mother arrived. She could have
requested the mother to sign the permit form before she left the school or at
least called her up to obtain her conformity.
Second, it was respondent’s responsibility as Class Adviser to supervise
her class in all activities sanctioned by the school.18 Thus, she should have
coordinated with the school to ensure that proper safeguards, such as
adequate first aid and sufficient adult personnel, were present during their
activity. She should have been mindful of the fact that with the number of
pupils involved, it would be impossible for her by herself alone to keep an
eye on each one of them.
As it turned out, since respondent was the only adult present, majority of the
pupils were left unsupervised when she followed the two pupils who
sneaked out. In the light of the odds involved, respondent should have
considered that those who sneaked out could not have left the school
premises since there were guards manning the gates. The guards would
not have allowed them to go out in their swimsuits and without any adult
accompanying them. But those who stayed at the pool were put at greater
risk, when she left them unattended by an adult.1avvphi1
Notably, respondent’s negligence, although gross, was not habitual. In view
of the considerable resultant damage, however, we are in agreement that
the cause is sufficient to dismiss respondent. This is not the first time that
we have departed from the requirements laid down by the law that neglect
of duties must be both gross and habitual. In Philippine Airlines, Inc. v.
NLRC,19 we ruled that Philippine Airlines (PAL) cannot be legally
compelled to continue with the employment of a person admittedly guilty of
gross negligence in the performance of his duties although it was his first
offense. In that case, we noted that a mere delay on PAL’s flight schedule
due to aircraft damage entails problems like hotel accommodations for its
passengers, re-booking, the possibility of law suits, and payment of special
landing fees not to mention the soaring costs of replacing aircraft parts.20 In
another case, Fuentes v. National Labor Relations Commission,21 we held
that it would be unfair to compel Philippine Banking Corporation to continue
employing its bank teller. In that case, we observed that although the teller’s
infraction was not habitual, a substantial amount of money was lost. The
deposit slip had already been validated prior to its loss and the amount
reflected thereon is already considered as current liabilities in the bank’s
balance sheet.22 Indeed, the sufficiency of the evidence as well as the
resultant damage to the employer should be considered in the dismissal of
the employee. In this case, the damage went as far as claiming the life of a
child.
As a result of gross negligence in the present case, petitioners lost its trust
and confidence in respondent. Loss of trust and confidence to be a valid
ground for dismissal must be based on a willful breach of trust and founded
on clearly established facts. A breach is willful if it is done intentionally,
knowingly and purposely, without justifiable excuse, as distinguished from
an act done carelessly, thoughtlessly, heedlessly or inadvertently.23
Otherwise stated, it must rest on substantial grounds and not on the
employer’s arbitrariness, whims, caprices or suspicion; otherwise, the
employee would eternally remain at the mercy of the employer. It should be
genuine and not simulated; nor should it appear as a mere afterthought to
justify earlier action taken in bad faith or a subterfuge for causes which are
improper, illegal or unjustified. It has never been intended to afford an
occasion for abuse because of its subjective nature. There must, therefore,
be an actual breach of duty committed by the employee which must be
established by substantial evidence.24
As a teacher who stands in loco parentis to her pupils, respondent should
have made sure that the children were protected from all harm while in her
company.25 Respondent should have known that leaving the pupils in the
swimming pool area all by themselves may result in an accident. A simple
reminder "not to go to the deepest part of the pool"26 was insufficient to
cast away all the serious dangers that the situation presented to the
children, especially when respondent knew that Chiara Mae cannot swim.27
Dismally, respondent created an unsafe situation which exposed the lives of
all the pupils concerned to real danger. This is a clear violation not only of
the trust and confidence reposed on her by the parents of the pupils but of
the school itself.
Finally, we note that based on the criminal complaint filed by Chiara Mae’s
parents, the Assistant City Prosecutor found probable cause to indict
respondent for the crime of reckless imprudence resulting in homicide. The
Assistant City Prosecutor held that respondent "should have foreseen the
danger lurking in the waters." By leaving her pupils in the swimming pool,
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
respondent displayed an "inexcusable lack of foresight and precaution."28
While this finding is not controlling for purposes of the instant case, this only
supports our conclusion that respondent has indeed been grossly negligent.
All told, there being a clear showing that respondent was culpable for gross
negligence resulting to loss of trust and confidence, her dismissal was valid
and legal. It was error for the Court of Appeals to reverse and set aside the
resolution of the NLRC.
WHEREFORE, the petition is GRANTED. The assailed Decision dated
June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480 is SET
ASIDE. The Resolution dated September 20, 2002 of the National Labor
Relations Commission in NLRC NCR CA No. 031627-02 is REINSTATED.
No pronouncement as to costs.
SO ORDERED.
FOOTNOTES
ART. 282. Termination by employer. ─ An employer may terminate an
employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful
orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or his duly authorized
representative; and
(e) Other causes analogous to the foregoing.
Espiritu v CA
G.R. No. 115640 March 15, 1995
REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.
MELO, J.:
This case concerns a seemingly void marriage and a relationship which
went sour. The innocent victims are two children horn out of the same
union. Upon this Court now falls the not too welcome task of deciding the
issue of who, between the father and mother, is more suitable and better
qualified in helping the children to grow into responsible, well-adjusted, and
happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met
sometime in 1976 in Iligan City where Reynaldo was employed by the
National Steel Corporation and Teresita was employed as a nurse in a local
hospital. In 1977, Teresita left for Los Angeles, California to work as a
nurse. She was able to acquire immigrant status sometime later. In 1984,
Reynaldo was sent by his employer, the National Steel Corporation, to
Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita
then began to maintain a common law relationship of husband and wife. On
August 16, 1986, their daughter, Rosalind Therese, was born. On October
7, 1987, while they were on a brief vacation in the Philippines, Reynaldo
and Teresita got married, and upon their return to the United States, their
second child, a son, this time, and given the name Reginald Vince, was
born on January 12, 1988.
The relationship of the couple deteriorated until they decided to separate
sometime in 1990. Teresita blamed Reynaldo for the break-up, stating he
was always nagging her about money matters. Reynaldo, on the other
hand, contended that Teresita was a spendthrift, buying expensive jewelry
and antique furniture instead of attending to household expenses.
Instead of giving their marriage a second chance as allegedly pleaded by
Reynaldo, Teresita left Reynaldo and the children and went back to
California. She claims, however, that she spent a lot of money on long
distance telephone calls to keep in constant touch with her children.
Reynaldo brought his children home to the Philippines, but because his
assignment in Pittsburgh was not yet completed, he was sent back by his

Page 9 of 26
company to Pittsburgh. He had to leave his children with his sister, co-
petitioner Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children because
Reynaldo filed a criminal case for bigamy against her and she was afraid of
being arrested. The judgment of conviction in the bigamy case was actually
rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou,
Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita, meanwhile, decided
to return to the Philippines and on December 8, 1992 and filed the petition
for a writ of habeas corpus against herein two petitioners to gain custody
over the children, thus starting the whole proceedings now reaching this
Court.
On June 30, 1993, the trial court dismissed the petition for habeas corpus. It
suspended Teresita's parental authority over Rosalind and Reginald and
declared Reynaldo to have sole parental authority over them but with rights
of visitation to be agreed upon by the parties and to be approved by the
Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with
Justices de Pano and Ibay-Somera concurring, reversed the trial court's
decision. It gave custody to Teresita and visitation rights on weekends to
Reynaldo.
Petitioners now come to this Court on a petition for review, in the main
contending that the Court of Appeals disregarded the factual findings of the
trial court; that the Court of Appeals further engaged in speculations and
conjectures, resulting in its erroneous conclusion that custody of the
children should be given to respondent Teresita.
We believe that respondent court resolved the question of custody over the
children through an automatic and blind application of the age proviso of
Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody, education and property of
the children, the latter's welfare shall be paramount. No mother shall be
separated from her child under seven years of age, unless the court finds
compelling reasons for such measure.
and of Article 213 of the Family Code which in turn provides:
Art. 213. In case of separation of the parents parental authority shall be
exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age unless the parent chosen is unfit.
The decision under review is based on the report of the Code Commission
which drafted Article 213 that a child below seven years still needs the
loving, tender care that only a mother can give and which, presumably, a
father cannot give in equal measure. The commentaries of a member of the
Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a
textbook on the Family Code, were also taken into account. Justice Diy
believes that a child below seven years should still be awarded to her
mother even if the latter is a prostitute or is unfaithful to her husband. This is
on the theory that moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of the Philippines,
1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of law
rather than an appreciation of relevant facts and the law which should apply
to those facts. The task of choosing the parent to whom custody shall be
awarded is not a ministerial function to be determined by a simple
determination of the age of a minor child. Whether a child is under or over
seven years of age, the paramount criterion must always be the child's
interests. Discretion is given to the court to decide who can best assure the
welfare of the child, and award the custody on the basis of that
consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid
down the rule that "in all controversies regarding the custody of minors, the
sole and foremost consideration is the physical, education, social and moral
welfare of the child concerned, taking into account the respective resources
and social and moral situations of the contending parents", and in Medina
vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given
to a non-relative as against the mother, then the country's leading civilist,
Justice J.B.L. Reyes, explained its basis in this manner:
. . . While our law recognizes the right of a parent to the custody of her
child, Courts must not lose sight of the basic principle that "in all questions
on the care, custody, education and property of children, the latter's welfare
shall be paramount" (Civil Code of the Philippines. Art. 363), and that for
compelling reasons, even a child under seven may be ordered separated
from the mother (do). This is as it should be, for in the continual evolution of
legal institutions, the patria potestas has been transformed from the jus
vitae ac necis (right of life and death) of the Roman law, under which the
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
offspring was virtually a chattel of his parents into a radically different
institution, due to the influence of Christian faith and doctrines. The
obligational aspect is now supreme. As pointed out by Puig Pena, now
"there is no power, but a task; no complex of rights (of parents) but a sum of
duties; no sovereignty, but a sacred trust for the welfare of the minor."
As a result, the right of parents to the company and custody of their children
is but ancillary to the proper discharge of parental duties to provide the
children with adequate support, education, moral, intellectual and civic
training and development (Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations. If a child is under seven years of age, the law presumes that
the mother is the best custodian. The presumption is strong but it is not
conclusive. It can be overcome by "compelling reasons". If a child is over
seven, his choice is paramount but, again, the court is not bound by that
choice. In its discretion, the court may find the chosen parent unfit and
award custody to the other parent, or even to a third party as it deems fit
under the circumstances.
In the present case, both Rosalind and Reginald are now over seven years
of age. Rosalind celebrated her seventh birthday on August 16, 1993 while
Reginald reached the same age on January 12, 1995. Both are studying in
reputable schools and appear to be fairly intelligent children, quite capable
of thoughtfully determining the parent with whom they would want to live.
Once the choice has been made, the burden returns to the court to
investigate if the parent thus chosen is unfit to assume parental authority
and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing the
records to discover the choice of the children and rather than verifying
whether that parent is fit or unfit, respondent court simply followed statutory
presumptions and general propositions applicable to ordinary or common
situations. The seven-year age limit was mechanically treated as an
arbitrary cut off period and not a guide based on a strong presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at least,
her counsel are more intent on emphasizing the "torture and agony" of a
mother separated from her children and the humiliation she suffered as a
result of her character being made a key issue in court rather than the
feelings and future, the best interests and welfare of her children. While the
bonds between a mother and her small child are special in nature, either
parent, whether father or mother, is bound to suffer agony and pain if
deprived of custody. One cannot say that his or her suffering is greater than
that of the other parent. It is not so much the suffering, pride, and other
feelings of either parent but the welfare of the child which is the paramount
consideration.
We are inclined to sustain the findings and conclusions of the regional trial
court because it gave greater attention to the choice of Rosalind and
considered in detail all the relevant factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a child
psychologist, Rita Flores Macabulos, to determine the effects of uprooting
her from the Assumption College where she was studying. Four different
tests were administered. The results of the tests are quite revealing. The
responses of Rosalind about her mother were very negative causing the
psychologist to delve deeper into the child's anxiety. Among the things
revealed by Rosalind was an incident where she saw her mother hugging
and kissing a "bad" man who lived in their house and worked for her father.
Rosalind refused to talk to her mother even on the telephone. She tended to
be emotionally emblazed because of constant fears that she may have to
leave school and her aunt's family to go back to the United States to live
with her mother. The 5-1/2 page report deals at length with feelings of
insecurity and anxiety arising from strong conflict with the mother. The child
tried to compensate by having fantasy activities. All of the 8
recommendations of the child psychologist show that Rosalind chooses
petitioners over the private respondent and that her welfare will be best
served by staying with them (pp. 199-205, Rollo).
At about the same time, a social welfare case study was conducted for the
purpose of securing the travel clearance required before minors may go
abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the
child Rosalind refused to go back to the United States and be reunited with
her mother. She felt unloved and uncared for. Rosalind was more attached
to her Yaya who did everything for her and Reginald. The child was found
suffering from emotional shock caused by her mother's infidelity. The
application for travel clearance was recommended for denial (pp. 206-209,
Rollo).

Page 10 of 26
Respondent Teresita, for her part, argues that the 7-year age reference in
the law applies to the date when the petition for a writ of habeas corpus is
filed, not to the date when a decision is rendered. This argument is flawed.
Considerations involving the choice made by a child must be ascertained at
the time that either parent is given custody over the child. The matter of
custody is not permanent and unalterable. If the parent who was given
custody suffers a future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted (Unson III v. Navarro,
supra, at p. 189). To be sure, the welfare, the best interests, the benefit,
and the good of the child must be determined as of the time that either
parent is chosen to be the custodian. At the present time, both children are
over 7 years of age and are thus perfectly capable of making a fairly
intelligent choice.
According to respondent Teresita, she and her children had tearful reunion
in the trial court, with the children crying, grabbing, and embracing her to
prevent the father from taking them away from her. We are more inclined to
believe the father's contention that the children ignored Teresita in court
because such an emotional display as described by Teresita in her
pleadings could not have been missed by the trial court. Unlike the Justices
of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin
personally observed the children and their mother in the courtroom. What
the Judge found is diametrically opposed to the contentions of respondent
Teresita. The Judge had this to say on the matter.
And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or
with more understanding, especially as her conduct and demeanor in the
courtroom (during most of the proceedings) or elsewhere (but in the
presence of the undersigned presiding judge) demonstrated her ebulent
temper that tended to corroborate the alleged violence of her physical
punishment of the children (even if only for ordinary disciplinary purposes)
and emotional instability, typified by her failure (or refusal?) to show
deference and respect to the Court and the other parties (pp. 12-13, RTC
Decision)
Respondent Teresita also questions the competence and impartiality of the
expert witnesses. Respondent court, in turn, states that the trial court
should have considered the fact that Reynaldo and his sister, herein
petitioner Guillerma Layug, hired the two expert witnesses. Actually, this
was taken into account by the trial court which stated that the allegations of
bias and unfairness made by Teresita against the psychologist and social
worker were not substantiated.
The trial court stated that the professional integrity and competence of the
expert witnesses and the objectivity of the interviews were unshaken and
unimpeached. We might add that their testimony remain uncontroverted.
We also note that the examinations made by the experts were conducted in
late 1991, well over a year before the filing by Teresita of the habeas corpus
petition in December, 1992. Thus, the examinations were at that time not
intended to support petitioners' position in litigation, because there was then
not even an impending possibility of one. That they were subsequently
utilized in the case a quo when it did materialize does not change the tenor
in which they were first obtained.
Furthermore, such examinations, when presented to the court must be
construed to have been presented not to sway the court in favor of any of
the parties, but to assist the court in the determination of the issue before it.
The persons who effected such examinations were presented in the
capacity of expert witnesses testifying on matters within their respective
knowledge and expertise. On this matter, this Court had occasion to rule in
the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert examines certain
contested documents, at the request, not of a public officer or agency of the
Government, but of a private litigant, does not necessarily nullify the
examination thus made. Its purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance of its duty to settle
correctly the issues relative to said documents. Even a non-expert private
individual may examine the same, if there are facts within his knowledge
which may help, the court in the determination of said issue. Such
examination, which may properly be undertaken by a non-expert private
individual, does not, certainly become null and void when the examiner is
an expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al. vs.
Intermediate Appellate Court, et al. (185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert testimonies, they
may place whatever weight they choose upon such testimonies in
accordance with the facts of the case. The relative weight and sufficiency of
expert testimony is peculiarly within the province of the trial court to decide,
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
considering the ability and character of the witness, his actions upon the
witness stand, the weight and process of the reasoning by which he has
supported his opinion, his possible bias in favor of the side for whom he
testifies, the fact that he is a paid witness, the relative opportunities for
study and observation of the matters about which he testifies, and any other
matters which reserve to illuminate his statements. The opinion of the
expert may not be arbitrarily rejected; it is to be considered by the court in
view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effect
(20 Am. Jur., 1056-1058). The problem of the credibility of the expert
witness and the evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the absence of an abuse
of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the opportunity to
assess the witnesses' character and to observe their respective demeanor
that the trial court opted to rely on their testimony, and we believe that the
trial court was correct in its action.
Under direct examination an February 4, 1993, Social Worker Lopez stated
that Rosalind and her aunt were about to board a plane when they were off-
loaded because there was no required clearance. They were referred to her
office, at which time Reginald was also brought along and interviewed. One
of the regular duties of Social Worker Lopez in her job appears to be the
interview of minors who leave for abroad with their parents or other
persons. The interview was for purposes of foreign travel by a 5-year old
child and had nothing to do with any pending litigation. On cross-
examination, Social Worker Lopez stated that her assessment of the
minor's hatred for her mother was based on the disclosures of the minor. It
is inconceivable, much less presumable that Ms. Lopez would compromise
her position, ethics, and the public trust reposed on a person of her position
in the course of doing her job by falsely testifying just to support the position
of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in
Psychology and an M.A. degree holder also in Psychology with her thesis
graded "Excellent". She was a candidate for a doctoral degree at the time of
the interview. Petitioner Reynaldo may have shouldered the cost of the
interview but Ms. Macabulos services were secured because Assumption
College wanted an examination of the child for school purposes and not
because of any litigation. She may have been paid to examine the child and
to render a finding based on her examination, but she was not paid to
fabricate such findings in favor of the party who retained her services. In
this instance it was not even petitioner Reynaldo but the school authorities
who initiated the same. It cannot be presumed that a professional of her
potential and stature would compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying Reynaldo
at the time she had a subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on a love affair with
one of the Reynaldo's fellow NSC employees.
3. She is incapable of providing the children with necessities and
conveniences commensurate to their social standing because she does not
even own any home in the Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling
reasons under the law which would justify depriving her of custody over the
children; worse, she claims, these findings are non-existent and have not
been proved by clear and convincing evidence.
Public and private respondents give undue weight to the matter of a child
under 7 years of age not to be separated from the mother, without
considering what the law itself denominates as compelling reasons or
relevant considerations to otherwise decree. In the Unson III case, earlier
mentioned, this Court stated that it found no difficulty in not awarding
custody to the mother, it being in the best interest of the child "to be freed
from the obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed
herself . . . might create in the moral and social outlook of [the child] who
was in her formative and most impressionable stage . . ."
Then too, it must be noted that both Rosalind and Reginald are now over 7
years of age. They understand the difference between right and wrong,
ethical behavior and deviant immorality. Their best interests would be better
served in an environment characterized by emotional stability and a certain

Page 11 of 26
degree of material sufficiency. There is nothing in the records to show that
Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact,
he has been trying his best to give the children the kind of attention and
care which the mother is not in a position to extend.
The argument that the charges against the mother are false is not
supported by the records. The findings of the trial court are based on
evidence.
Teresita does not deny that she was legally married to Roberto Lustado on
December 17, 1984 in California (p. 13, Respondent's Memorandum; p.
238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already
driven across the continental United States to commence living with another
man, petitioner Reynaldo, in Pittsburgh. The two were married on October
7, 1987. Of course, to dilute this disadvantage on her part, this matter of her
having contracted a bigamous marriage later with Reynaldo, Teresita tried
to picture Reynaldo as a rapist, alleging further that she told Reynaldo
about her marriage to Lustado on the occasion when she was raped by
Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no
weight to such tale. And even if this story were given credence, it adds to
and not subtracts from the conviction of this Court about Teresita's values.
Rape is an insidious crime against privacy. Confiding to one's potential
rapist about a prior marriage is not a very convincing indication that the
potential victim is averse to the act. The implication created is that the act
would be acceptable if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage only
much later. In fact, the rape incident itself is unlikely against a woman who
had driven three days and three nights from California, who went straight to
the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who
immediately thereafter started to live with him in a relationship which is
marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various
witnesses that while married to Reynaldo, Teresita entered into an illicit
relationship with Perdencio Gonzales right there in the house of petitioner
Reynaldo and respondent Teresita. Perdencio had been assigned by the
National Steel Corporation to assist in the project in Pittsburgh and was
staying with Reynaldo, his co-employee, in the latter's house. The record
shows that the daughter Rosalind suffered emotional disturbance caused by
the traumatic effect of seeing her mother hugging and kissing a boarder in
their house. The record also shows that it was Teresita who left the conjugal
home and the children, bound for California. When Perdencio Gonzales
was reassigned to the Philippines, Teresita followed him and was seen in
his company in a Cebu hotel, staying in one room and taking breakfast
together. More significant is that letters and written messages from Teresita
to Perdencio were submitted in evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man to
another does not fall under "compelling reasons" is neither meritorious nor
applicable in this case. Not only are the children over seven years old and
their clear choice is the father, but the illicit or immoral activities of the
mother had already caused emotional disturbances, personality conflicts,
and exposure to conflicting moral values, at least in Rosalind. This is not to
mention her conviction for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo).
Respondent court's finding that the father could not very well perform the
role of a sole parent and substitute mother because his job is in the United
States while the children will be left behind with their aunt in the Philippines
is misplaced. The assignment of Reynaldo in Pittsburgh is or was a
temporary one. He was sent there to oversee the purchase of a steel mill
component and various equipment needed by the National Steel
Corporation in the Philippines. Once the purchases are completed, there is
nothing to keep him there anymore. In fact, in a letter dated January 30,
1995, Reynaldo informs this Court of the completion of his assignment
abroad and of his permanent return to the Philippines (ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial court. The
children are now both over seven years old. Their choice of the parent with
whom they prefer to stay is clear from the record. From all indications,
Reynaldo is a fit person, thus meeting the two requirements found in the
first paragraph of Article 213 of the Family Code. The presumption under
the second paragraph of said article no longer applies as the children are
over seven years. Assuming that the presumption should have persuasive
value for children only one or two years beyond the age of seven years
mentioned in the statute, there are 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.
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
WHEREFORE, the petition is hereby GRANTED. The decision of the Court
of Appeals is reversed and set aside, and the decision of Branch 96 of the
Regional Trial Court of the National Capital Judicial Region stationed in
Quezon City and presided over by the Honorable Lucas P. Bersamin in its
Civil Case No. Q-92-14206 awarding custody of the minors Rosalind and
Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special
pronouncement is made as to costs.
SO ORDERED.
Feliciano, Romero, Vitug and Francisco, JJ., concur.
Santos, Sr v CA
G.R. No. 113054 March 16, 1995
LEOUEL SANTOS, SR., petitioner-appellant,
vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA,
respondents-appellees.
ROMERO, J.:
In this petition for review, we are asked to overturn the decision of the Court
of Appeals1 granting custody of six-year old Leouel Santos, Jr. to his
maternal grandparents and not to his father, Santos, Sr. What is sought is a
decision which should definitively settle the matter of the care, custody and
control of the boy.
Happily, unlike King Solomon, we need not merely rely on a "wise and
understanding heart," for there is man's law to guide us and that is, the
Family Code.
The antecedent facts giving rise to the case at bench are as follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse
by profession, were married in Iloilo City in 1986. Their union beget only
one child, Leouel Santos, Jr. who was born July 18, 1987.
From the time the boy was released from the hospital until sometime
thereafter, he had been in the care and custody of his maternal
grandparents, private respondents herein, Leopoldo and Ofelia Bedia.
Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody
of the latter's parents, the respondent spouses Bedia. The latter alleged that
they paid for all the hospital bills, as well as the subsequent support of the
boy because petitioner could not afford to do so.
The boy's mother, Julia Bedia-Santos, left for the United States in May 1988
to work. Petitioner alleged that he is not aware of her whereabouts and his
efforts to locate her in the United States proved futile. Private respondents
claim that although abroad, their daughter Julia had been sending financial
support to them for her son.
On September 2, 1990, petitioner along with his two brothers, visited the
Bedia household, where three-year old Leouel Jr. was staying. Private
respondents contend that through deceit and false pretensions, petitioner
abducted the boy and clandestinely spirited him away to his hometown in
Bacong, Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody and Control of
Minor Ward Leouel Santos Jr.," before the Regional Trial Court of Iloilo City,
with Santos, Sr. as respondent.2
After an ex-parte hearing on October 8, 1990, the trial court issued an order
on the same day awarding custody of the child Leouel Santos, Jr. to his
grandparents, Leopoldo and Ofelia Bedia.3
Petitioner appealed this Order to the Court of Appeals.4 In its decision
dated April 30, 1992, respondent appellate court affirmed the trial court's
order. 5 His motion for reconsideration having been denied,6 petitioner now
brings the instant petition for review for a reversal of the appellate court's
decision.
The Court of Appeals erred, according to petitioner, in awarding custody of
the boy to his grandparents and not to himself. He contends that since
private respondents have failed to show that petitioner is an unfit and
unsuitable father, substitute parental authority granted to the boy's
grandparents under Art. 214 of the Family Code is inappropriate.

Page 12 of 26
Petitioner adds that the reasons relied upon by the private respondents in
having custody over the boy, are flimsy and insufficient to deprive him of his
natural and legal right to have custody.
On the other hand, private respondents aver that they can provide an air-
conditioned room for the boy and that petitioner would not be in a position to
take care of his son since he has to be assigned to different places. They
also allege that the petitioner did not give a single centavo for the boy's
support and maintenance. When the boy was about to be released from the
hospital, they were the ones who paid the fees because their daughter and
petitioner had no money. Besides, Julia Bedia Santos, their daughter, had
entrusted the boy to them before she left for the United States.
Furthermore, petitioner's use of trickery and deceit in abducting the child in
1990, after being hospitably treated by private respondents, does not speak
well of his fitness and suitability as a parent.
The Bedias argue that although the law recognizes the right of a parent to
his child's custody, ultimately the primary consideration is what is best for
the happiness and welfare of the latter. As maternal grandparents who have
amply demonstrated their love and affection for the boy since his infancy,
they claim to be in the best position to promote the child's welfare.
The issue to be resolved here boils down to who should properly be
awarded custody of the minor Leouel Santos, Jr.
The right of custody accorded to parents springs from the exercise of
parental authority. Parental authority or patria potestas in Roman Law is the
juridical institution whereby parents rightfully assume control and protection
of their unemancipated children to the extent required by the latter' s
needs.7 It is a mass of rights and obligations which the law grants to
parents for the purpose of the children's physical preservation and
development, as well as the cultivation of their intellect and the education of
their heart and senses.8 As regards parental authority, "there is no power,
but a task; no complex of rights, but a sum of duties; no sovereignty but a
sacred trust for the welfare of the minor."9
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. 10 The right
attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship and
surrender to a children's home or an orphan institution. 11 When a parent
entrusts the custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody and it does
not constitute a renunciation of parental authority. 12 Even if a definite
renunciation is manifest, the law still disallows the same. 13
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company. 14 The child's welfare is always the paramount consideration in
all questions concerning his care and custody. 15
The law vests on the father and mother joint parental authority over the
persons of their common children. 16 In case of absence or death of either
parent, the parent present shall continue exercising parental authority. 17
Only in case of the parents' death, absence or unsuitability may substitute
parental authority be exercised by the surviving grandparent. 18 The
situation obtaining in the case at bench is one where the mother of the
minor Santos, Jr., is working in the United States while the father, petitioner
Santos, Sr., is present. Not only are they physically apart but are also
emotionally separated. There has been no decree of legal separation and
petitioner's attempt to obtain an annulment of the marriage on the ground of
psychological incapacity of his wife has failed. 19
Petitioner assails the decisions of both the trial court and the appellate court
to award custody of his minor son to his parents-in-law, the Bedia spouses
on the ground that under Art. 214 of the Family Code, substitute parental
authority of the grandparents is proper only when both parents are dead,
absent or unsuitable. Petitioner's unfitness, according to him, has not been
successfully shown by private respondents.
The Court of Appeals held that although there is no evidence to show that
petitioner (Santos Sr.) is "depraved, a habitual drunkard or poor, he may
nevertheless be considered, as he is in fact so considered, to be unsuitable
to be allowed to have custody of minor Leouel Santos Jr." 20
The respondent appellate court, in affirming the trial court's order of October
8, 1990, adopted as its own the latter's observations, to wit:
From the evidence adduced, this Court is of the opinion that it is to be (sic)
best interest of the minor Leouel Santos, Jr. that he be placed under the
care, custody, and control of his maternal grandparents the petitioners
herein. The petitioners have amply demonstrated their love and devotion to
their grandson while the natural father, respondent herein, has shown little
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
interest in his welfare as reflected by his conduct in the past. Moreover the
fact that petitioners are well-off financially, should be carefully considered in
awarding to them the custody of the minor herein, lest the breaking of such
ties with his maternal grandparents might deprive the boy of an eventual
college education and other material advantages (Consaul vs. Consaul, 63
N.Y.S. 688). Respondent had never given any previous financial support to
his son, while, upon the other hand, the latter receives so much bounty from
his maternal grandparents and his mother as well, who is now gainfully
employed in the United States. Moreover, the fact that respondent, as a
military personnel who has to shuttle from one assignment to another, and,
in these troubled times, may have pressing and compelling military duties
which may prevent him from attending to his son at times when the latter
needs him most, militates strongly against said respondent. Additionally, the
child is sickly and asthmatic and needs the loving and tender care of those
who can provide for it. 21
We find the aforementioned considerations insufficient to defeat petitioner's
parental authority and the concomitant right to have custody over the minor
Leouel Santos, Jr., particularly since he has not been shown to be an
unsuitable and unfit parent. Private respondents' demonstrated love and
affection for the boy, notwithstanding, the legitimate father is still preferred
over the grandparents. 22 The latter's wealth is not a deciding factor,
particularly because there is no proof that at the present time, petitioner is in
no position to support the boy. The fact that he was unable to provide
financial support for his minor son from birth up to over three years when he
took the boy from his in-laws without permission, should not be sufficient
reason to strip him of his permanent right to the child's custody. While
petitioner's previous inattention is inexcusable and merits only the severest
criticism, it cannot be construed as abandonment. His appeal of the
unfavorable decision against him and his efforts to keep his only child in his
custody may be regarded as serious efforts to rectify his past misdeeds. To
award him custody would help enhance the bond between parent and son.
It would also give the father a chance to prove his love for his son and for
the son to experience the warmth and support which a father can give.
His being a soldier is likewise no bar to allowing him custody over the boy.
So many men in uniform who are 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.
The strong bonds of love and affection possessed by private respondents
as grandparents should not be seen as incompatible with petitioner' right to
custody over the child as a father. Moreover, who is to say whether the
petitioner's financial standing may improve in the future?
WHEREFORE, the petition is GRANTED. The decision of the respondent
Court of Appeals dated April 30, 1992 as well as its Resolution dated
November 13, 1992 are hereby REVERSED and SET ASIDE. Custody over
the minor Leouel Santos Jr. is awarded to his legitimate father, herein
petitioner Leouel Santos, Sr.
SO ORDERED.
Feliciano, Melo, Vitug and Francisco, JJ., concur.
Eslao v CA
G.R. No. 116773 January 16, 1997
TERESITA SAGALA-ESLAO, petitioner,
vs.
COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.
TORRES, JR., J.:
Children begin by loving their parents. After a time they judge them. Rarely,
if ever, do they forgive them.1 Indeed, parenthood is a riddle of no mean
proportions except for its mission. Thus, a mother's concern for her child's
custody is undying — such is a mother's love.

Page 13 of 26
The right of the mother to the custody of her daughter is the issue in the
case at bar.
In this petition for review, Teresita Sagala-Eslao seeks the reversal of the
Court of Appeals decision2 dated March 25, 1994, which affirmed the trial
court's judgment granting the petition of Maria Paz Cordero-Ouye to recover
the custody of her minor daughter from her mother-in-law, Teresita Sagala-
Eslao.
As found by the Court of Appeals, the facts of the case are as follows:
From the evidence, it appears that on June 22, 1984, petitioner Maria Paz
Cordero-Ouye and Reynaldo Eslao were married;3 after their marriage, the
couple stayed with respondent Teresita Eslao, mother of the husband, at
1825, Road 14, Fabie Estate, Paco, Manila; that out of their marriage, two
children were begotten, namely, Leslie Eslao who was born on February 23,
1986 and Angelica Eslao who was born on April 20,
1987;4 in the meantime, Leslie was entrusted to the care and custody of
petitioner's mother in Sta. Ana, Pampanga, while Angelica stayed with her
parents at respondent's house; on August 6, 1990, petitioner's husband
Reynaldo Eslao died;5 petitioner intended to bring Angelica with her to
Pampanga but the respondent prevailed upon her to entrust the custody of
Angelica to her, respondent reasoning out that her son just died and to
assuage her grief therefor, she needed the company of the child to at least
compensate for the loss of her late son. In the meantime, the petitioner
returned to her mother's house in Pampanga where she stayed with Leslie.
Subsequently, petitioner was introduced by her auntie to Dr. James
Manabu-Ouye, a Japanese-American, who is an orthodontist practicing in
the United States; their acquaintance blossomed into a meaningful
relationship where on March 18, 1992, the petitioner and Dr. James Ouye
decided to get married; less than ten months thereafter, or on January 15,
1993, the petitioner migrated to San Francisco, California, USA, to join her
new husband. At present, the petitioner is a trainee at the Union Bank in
San Francisco, while her husband is a progressive practitioner of his
profession who owns three cars, a dental clinic and earns US$5,000 a
month. On June 24, 1993, the petitioner returned to the Philippines to be
reunited with her children and bring them to the United States; the petitioner
then informed the respondent about her desire to take informed the
respondent about her desire to take custody of Angelica and explained that
her present husband, Dr. James Ouye, expressed his willingness to adopt
Leslie and Angelica and to provide for their support and education;
however, respondent resisted the idea by way of explaining that the child
was entrusted to her when she was ten days old and accused the petitioner
of having abandoned Angelica. Because of the adamant attitude of the
respondent, the petitioner then sought the assistance of a lawyer, Atty.
Mariano de Joya, Jr., who wrote a letter to the respondent demanding for
the return of the custody of Angelica to her natural mother6 and when the
demand remain[ed] unheeded, the petitioner instituted the present action.7
After the trial on the merits, the lower court rendered its decision, the
dispositive portion of which reads:
WHEREFORE, finding the petition to be meritorious, the Court grants the
same and let the corresponding writ issue. As a corollary, respondent
Teresita Sagala-Eslao or anyone acting under her behalf is hereby directed
to cause the immediate transfer of the custody of the minor Angelica
Cordero Eslao, to her natural mother, petitioner Maria Paz Cordero-Ouye.
No pronouncement as to costs.
SO ORDERED.
On appeal, the respondent court affirmed in full the decision of the trial
court.
Hence, the instant petition by the minor's paternal grandmother, contending
that the Court of Appeals erred:
I respondent claims otherwise and that she visited Angelica "many times"
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-
OUYE, DID NOT ABANDON MINOR, ANGELICA ESLAO, TO THE CARE
AND CUSTODY OF THE PETITIONER TERESITA SAGALA-ESLAO.
II
IN RULING THAT THERE WAS NO COMPELLING REASON TO
SEPARATE MINOR, ANGELICA ESLAO, FROM PRIVATE RESPONDENT
MARIA PAZ CORDERO-OUYE, IN FAVOR OF PETITIONER TERESITA
SAGALA-ESLAO.
III
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
IN NOT FINDING THAT PETITIONER TERESITA SAGALA-ESLAO, IS FIT
TO BE GIVEN THE CUSTODY OF MINOR, ANGELICA ESLAO.
The petition is without merit.
Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take care of Angelica; that
she had managed to raise 12 children of her own herself; that she has the
financial means to carry out her plans for Angelica; that she maintains a
store which earns a net income of about P500 a day, she gets P900 a
month as pension for the death of her husband, she rents out rooms in her
house which she owns, for which she earns a total of P6,000 a month, and
that from her gross income of roughly P21,000, she spends about P10,000
for the maintenance of her house.
Despite the foregoing, however, and petitioner's "genuine desire to remain
with said child, that would qualify her to have custody of Angelica," the trial
court's disquisition, in consonance with the provision that the child's welfare
is always the paramount consideration in all questions concerning his care
and custody8 convinced this Court to decide in favor of private respondent,
thus:
On the other hand, the side of the petitioner must also be presented here. In
this case, we see a picture of a real and natural mother who is —
. . . legitimately, anxiously, and desperately trying to get back her child in
order to fill the void in her heart and existence. She wants to make up for
what she has failed to do for her boy during the period when she was
financially unable to help him and when she could not have him in her
house because of the objection of the father. Now that she has her own
home and is in a better financial condition, she wants her child back, and
we repeat that she has not and has never given him up definitely or with
any idea of permanence.9
The petitioner herein is married to an Orthodontist who has lucrative
practice of his profession in San Francisco, California, USA. The petitioner
and her present husband have a home of their own and they have three
cars. The 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. Contrast this situation with the one prevailing in the
respondent's [grandmother's] house. As admitted by the respondent, four of
the rooms in her house are being rented to other persons with each room
occupied by 4 and 5 persons. Added to these persons are the respondent's
2 sons, Samuel and Alfredo, and their respective families (ibid., p. 54) and
one can just visualize the kind of atmosphere pervading thereat. And to
aggravate the situation, the house has only 2 toilets and 3 faucets. Finally,
considering that in all controversies involving the custody of minors, the
foremost criterion is the physical and moral well being of the child taking
into account the respective resources and social and moral situations of the
contending parties (Union III vs. Mariano, 101 SCRA 183), the Court is left
with no other recourse but to grant the writ prayed for.10
Petitioner further contends that the respondent court erred in finding that
there was no abandonment committed by the private respondent; that while
judicial declaration of abandonment of the child in a case filed for the
purpose is not her obtaining as mandated in Art. 229 of the Family Code
because petitioner failed to resort to such judicial action, it does not ipso
facto follow that there was in fact no abandonment committed by the private
respondent.
Petitioner also argues that it has been amply demonstrated during the trial
that private respondent had indeed abandoned Angelica to the care and
custody of the petitioner; that during all the time that Angelica stayed with
petitioner, there were only three instances or occasions wherein the private
respondent saw Angelica; that private respondent never visited Angelica on
important occasions, such as her birthday, and neither did the former give
her cards or gifts, "not even a single candy;"11 that while private
and insists that she visited Angelica as often as four times a month and
gave her remembrances such as candies and clothes, she would not even
remember when the fourth birthday of Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,12 we stated, viz:
. . . [Parental authority] is a mass of rights and obligations which the law
grants to parents for the purpose of the children's physical preservation and
development, as well as the cultivation of their intellect and the education of
their heart and senses.13 As regards parental authority, "there is no power,

Page 14 of 26
but a task; no complex of rights, but a sum of duties; no sovereignty but a
sacred trust for the welfare of the minor."14
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law.15 The right
attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship and
surrender to a children's home or an orphan institution.16 When a parent
entrusts the custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody and it does
not constitute a renunciation of parental authority.17 Even if a definite
renunciation is manifest, the law still disallows the same.18
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company.19
Thus, in the instant petition, when private respondent entrusted the custody
of her minor child to the petitioner, what she gave to the latter was merely
temporary custody and it did not constitute abandonment or renunciation of
parental authority. For the right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in cases of
adoption, guardianship and surrender to a children's home or an orphan
institution which do not appear in the case at bar.
Of considerable importance is the rule long accepted by the courts that "the
right of parents to the custody of their minor children is one of the natural
rights incident to parenthood, a right supported by law and sound public
policy. The right is an inherent one, which is not created by the state or
decisions of the courts, but derives from the nature of the parental
relationship.20
IN VIEW WHEREOF, the decision appealed from dated March 25, 1994
being in accordance with law and the evidence, the same is hereby
AFFIRMED and the petition DISMISSED for lack of merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.
Laxamana v Laxamana
[G.R. No. 144763. September 3, 2002]
REYMOND B. LAXAMANA, petitioner, vs. MA. LOURDES* D. LAXAMANA,
respondent.
DECISION
YNARES-SANTIAGO, J.:
This is another sad tale of an estranged couples tug-of-war over the
custody of their minor children. Petitioner Reymond B. Laxamana and
respondent Ma. Lourdes D. Laxamana met sometime in 1983. Petitioner,
who came from a well-to-do family, was a graduate of Bachelor of Laws,
while respondent, a holder of a degree in banking and finance, worked in a
bank. After a whirlwind courtship, petitioner, 31 years old and respondent,
33, got married on June 6, 1984.[1] Respondent quit her job and became a
full-time housewife. Petitioner, on the other hand, operated buy and sell,
fishpond, and restaurant businesses for a living. The union was blessed
with three children twin brothers Joseph and Vincent, born on March 15,
1985, and Michael, born on June 19, 1986.[2]
All went well until petitioner became a drug dependent. In October 1991, he
was confined at the Estrellas Home Care Clinic in Quezon City. He
underwent psychotherapy and psychopharmacological treatment and was
discharged on November 16, 1991.[3] Upon petition of respondent, the
Regional Trial Court of Quezon City, Branch 101, ordered petitioners
confinement at the NARCOM-DRC for treatment and rehabilitation.[4]
Again, on October 30, 1996, the trial court granted petitioners voluntary
confinement for treatment and rehabilitation at the National Bureau of
Investigation-TRC.[5]
On April 25, 1997, the court issued an order declaring petitioner already
drug-free and directing him to report to a certain Dr. Casimiro for out-patient
counseling for 6 months to one (1) year.[6]
Despite several confinements, respondent claimed petitioner was not fully
rehabilitated. His drug dependence worsened and it became difficult for
respondent and her children to live with him. Petitioner allegedly became
violent and irritable. On some occasions, he even physically assaulted
respondent. Thus, on June 17, 1999, respondent and her 3 children
abandoned petitioner and transferred to the house of her relatives.
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
On August 31, 1999, petitioner filed with the Regional Trial Court of Quezon
City, Branch 107, the instant petition for habeas corpus praying for custody
of his three children.[7] Respondent opposed the petition, citing the drug
dependence of petitioner.[8]
Meanwhile, on September 24, 1999, respondent filed a petition for
annulment of marriage with Branch 102 of the Regional Trial Court of
Quezon City.[9]
On September 27, 1999, petitioner filed in the habeas corpus case, a
motion seeking visitation rights over his children.[10] On December 7, 1999,
after the parties reached an agreement, the court issued an order granting
visitation rights to petitioner and directing the parties to undergo psychiatric
and psychological examination by a psychiatrist of their common choice.
The parties further agreed to submit the case for resolution after the trial
courts receipt of the results of their psychiatric examination. The full text of
said order reads:
The parties appeared with their respective lawyers. A conference was held
in open Court and the parties agreed on the following:
Effective this Saturday and every Saturday thereafter until further order the
petitioner shall fetch the children every Saturday and Sunday at 9:00 oclock
in the morning from the house of the sister of respondent, Mrs. Corazon
Soriano and to be returned at 5:00 oclock in the afternoon of the same
days.
That the parties agreed to submit themselves to Dr. Teresito Ocampo for
psychiatric/psychological examination. Dr. Ocampo is hereby advised to go
over the records of this case to enable him to have a thorough background
of the problem. He is hereby ordered to submit his findings directly to this
Court without furnishing the parties copies of his report. And after the
receipt of that report, thereafter, the case shall be deemed submitted for
decision.[11]
On January 6, 2000, Dr. Ocampo submitted the results of his psychiatric
evaluation on the parties and their children. Pertinent portions thereof state:
SINGLY and COLLECTIVELY, the following information was obtained in the
interview of the 3 children:
(1) THEY were affected psychologically by the drug-related behavior of their
father:
a. they have a difficult time concentrating on their studies.
b. they are envious of their classmates whose families live in peace and
harmony.
c. once, MICHAEL had to quit school temporarily.
(2) THEY witnessed their father when he was under the influence of shabu.
(3) THEY think their father had been angry at their paternal grandmother
and this anger was displaced to their mother.
(4) THEY hope their father will completely and permanently recover from his
drug habit; and their criteria of his full recovery include:
a. he will regain his easy-going attitude.
b. he wont be hot-headed anymore and would not drive their van recklessly.
c. he would not tell unverifiable stories anymore.
d. he would not poke a gun on his own head and ask the children who they
love better, mom or dad.
(5) At one point one of the sons, became very emotional while he was
narrating his story and he cried. I had to stop the interview.
(6) THEIR mother was fearful and terrified when their father quarreled with
her.
(7) THEY hope their visits to their father will not interfere with their school
and academic schedules.
xxxxxxxxx
(3) MARILOU is one of 4 siblings. She graduated from college with a
degree in banking and finance. SHE was a carreer (sic) woman; worked for

Page 15 of 26
a bank for ten years; subsequently quit her job to devote more time to her
family.
(4) REYMOND is one of 5 siblings in a well-to-do family. His father was a
physician. During his developmental years, he recalled how his mother
complained incessantly about how bad the father was; only to find later that
the truth was opposite to the complaints of his mother; that his father was
nice, logical and understanding. He recalled how he unselfishly served his
father --- he opened the door when he arrived home; he got his portfolio; he
brought the days newspaper; he removed his shoes; he brought his glass of
beer or his shot of whisky. In short, he served him like a servant. His father
died of stroke in 1990.
REYMOND graduated from college with a degree in LAW in 1984; he did
not pass the bar.
His work history is as follows:
a. 1985 to 1989 he operated fishponds.
b. 1976 to 1991 simultaneously, he operated restaurant.
c. 1991 he engaged in the trading of vegetable, cooking oil, and mangos.
d. HE handled the leasing of a family property to a fast food company.
The findings on the examination of the MENTAL STATUS and MENTAL
PROCESSES OF MARILOU showed a woman who showed the
psychological effects of the trauma she had in the past. She is slightly edgy
and fidgety with any external noise. SHE answered all my questions
coherently. Her emotional state was stable throughout the interview. She is
of average intelligence. She was oriented to person, place and date. Her
memory for recent and remote events was intact. She could process sets of
figures and sets of similarities and differences. Her content of thought was
negative for delusions, hallucinations, paranoia, suicidal and homicidal
ideation. She could process abstract ideas and general information. Her
attention span was adequate. There was no evidence of impaired judgment.
The Rorschach ink blot test gave responses such as man touching a
woman, 2 people on a hi-five , 2 women chatting, beast, stuffed animal, etc.
Her past reflected on her psyche. There is no creative process. There were
no bizarre ideas.
The ZUNG anxiety/depression test highlighted I get tired for no reason; I
feel that I am useful and needed (re, son). There is moderate depression.
However, she could still make competent decisions.
The Social Adaptation Scale scored well in her capacity to adapt to her
situation. There is no evidence of losing control.
The findings on the examination of the MENTAL STATUS and MENTAL
PROCESSES of REYMOND showed an individual who presented himself in
the best situation he could possibly be. He is cool, calm and collected. He
answered all my questions coherently. He is of average intelligence. He
was oriented to person, place and date. His memory for recent and remote
events was intace (sic). His content of thought was negative for delusions,
hallucinations, paranoia, suicidal and homicidal ideation. His attention span
was adequate. He could process abstract ideas, sets of figures, and general
information.
The Rorschach ink blot test gave responses such as distorted chest ,
butterfly with scattered color, cat ran over by a car, nothing 2 people,
monster etc. There is no central theme in his responses. There were no
bizarre ideas.
The Zung anxiety/depression test: My mind is as clear as it used to be
(most of the time). There was no evidence of brain damage. There is no
significant affective response that would affect his rationality.
The Social Adaptive Scale scored well in his capacity to adapt to his
situation. He reached out well to others. He is in very good control of his
emotions.
BASED ON MY FINDINGS I MADE THE FOLLOWING COMMENTS AND
CONCLUSIONS:
I. The CRITERIA for cure in drug addiction consist of:
1. 5-years and 10-years intervals of drug-free periods.
2. change for the better of the maladaptive behaviors of the addict
consisting of telling lies, manipulative behavior, melodramatic and hysterical
actions.
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
3. constructive and reproductive outlets for the mental and physical
energies of the addict.
4. behavior oriented towards spiritual values and other things.
II BASED on such scientific and observable criteria, I do not yet consider
REYMOND LAXAMANA completely cured even though his drug urine test
at Medical City for shabu was negative. (Emphasis supplied)
III I DO NOT DETECT any evidence that the paternal visits of the sons
would be harmful or they would be in any danger. The academic schedules
of the sons has be taken into account in determining the length and
frequency of their visits.
x x x x x x x x x.[12]
On January 14, 2000, the trial court rendered the assailed decision
awarding the custody of the three children to respondent and giving
visitation rights to petitioner. The dispositive portion thereof states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. The children, Joseph, Michael and Vincent all surnamed Laxamana are
hereby ordered to remain under the custody of the respondent.
2. The visitation arrangement as per Order of December 7, 1999 is hereby
incorporated and forms part of this Decision. The parties are enjoined to
comply with the terms stated therein.
3. The petitioner is hereby ordered to undergo urine drug screen for shabu
for three times (3x) per month every ten (10) days, with the Dangerous
Drugs Board. The said Board is hereby ordered to submit the results of all
tests immediately as directed to this Court.
4. The petitioner is hereby referred to undergo regular counseling at the
Free-Clinic at the East Avenue Medical Center, Department of Health Out
Patient Psychiatry Department until further order. For this purpose, it is
suggested that he should see Dr. Teresito P. Ocampo to make
arrangements for said counseling.
Let copies of this Decision be furnished the Dangerous Drugs Board and
the Free-Clinic, Out Patient Psychiatry Department, East Avenue Medical
Center, Department of Health for their information and guidance.
SO ORDERED.[13]
Aggrieved, petitioner filed the instant petition for review on certiorari under
Rule 45 of the Rules of Court, based on the following:
I
THE COURT A QUO HAS DEPARTED FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RESOLVED
THE ISSUE OF CUSTODY WITHOUT CONDUCTING A TRIAL TO
DETERMINE FACTUAL ISSUES.
II
THE COURT A QUO HAS RESOLVED THE ISSUE OF CUSTODY IN A
MANNER NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE
DECISIONS OF THIS HONORABLE SUPREME COURT WHEN IT
RESOLVED THE ISSUE OF CUSTODY WITHOUT CONSIDERING THE
PARAMOUNT INTEREST AND WELFARE OF HEREIN PARTIES THREE
(3) MINOR CHILDREN.
III
THE ASSAILED DECISION IS NULL AND VOID AS IT DOES NOT
COMPLY WITH SECTION 14 ARTICLE VIII OF THE CONSTITUTION OF
THE REPUBLIC OF THE PHILIPPINES.[14]
The core issue for resolution in the instant petition is whether or not the trial
court considered the paramount interest and welfare of the children in
awarding their custody to respondent.
In controversies involving the care, custody and control of their minor
children, the contending parents stand on equal footing before the court
who shall make the selection according to the best interest of the child. The
child if over seven years of age may be permitted to choose which parent
he/she prefers to live with, but the court is not bound by such choice if the
parent so chosen is unfit. In all cases, the sole and foremost consideration
is the physical, educational, social and moral welfare of the child concerned,

Page 16 of 26
taking into account the respective resources as well as social and moral
situations of the opposing parents.[15]
In Medina v. Makabali,[16] we stressed that this is as it should be, for in the
continual evolution of legal institutions, the patria potestas has been
transformed from the jus vitae ac necis (right of life and death) of the
Roman law, under which the offspring was virtually a chattel of his parents,
into a radically different institution, due to the influence of Christian faith and
doctrines. The obligational aspect is now supreme. There is no power, but a
task; no complex rights of parents but a sum of duties; no sovereignty, but a
sacred trust for the welfare of the minor.
Mindful of the nature of the case at bar, the court a quo should have
conducted a trial notwithstanding the agreement of the parties to submit the
case for resolution on the basis, inter alia, of the psychiatric report of Dr.
Teresito. Thus, petitioner is not estopped from questioning the absence of a
trial considering that said psychiatric report, which was the courts primary
basis in awarding custody to respondent, is insufficient to justify the
decision. The fundamental policy of the State to promote and protect the
welfare of children shall not be disregarded by mere technicality in resolving
disputes which involve the family and the youth.[17] While petitioner may
have a history of drug dependence, the records are inadequate as to his
moral, financial and social well-being. The results of the psychiatric
evaluation showing that he is not yet completely cured may render him unfit
to take custody of the children, but there is no evidence to show that
respondent is unfit to provide the children with adequate support, education,
as well as moral and intellectual training and development. Moreover, the
children in this case were 14 and 15 years old at the time of the
promulgation of the decision, yet the court did not ascertain their choice as
to which parent they want to live with. In its September 8, 1999 order, the
trial court merely stated that: The children were asked as to whether they
would like to be with petitioner but there are indications that they entertain
fears in their hearts and want to be sure that their father is no longer a drug
dependent.[18] There is no showing that the court ascertained the
categorical choice of the children. These inadequacies could have been
remedied by an exhaustive trial probing into the accuracy of Dr. Ocampos
report and the capacity of both parties to raise their children. The trial court
was remiss in the fulfillment of its duties when it approved the agreement of
the parties to submit the case for decision on the basis of sketchy findings
of facts.
In Lacson v. Lacson,[19] the case was remanded to the trial court with
respect to the issue of custody. In the said case, the court a quo resolved
the question of the childrens custody based on the amicable settlement of
the spouses. Stressing the need for presentation of evidence and a
thorough proceedings, we explained
It is clear that every child [has] rights which are not and should not be
dependent solely on the wishes, much less the whims and caprices, of his
parents. His welfare should not be subject to the parents' say-so or mutual
agreement alone. Where, as in this case, the parents are already separated
in fact, the courts must step in to determine in whose custody the child can
better be assured the rights granted to him by law. The need, therefore, to
present evidence regarding this matter, becomes imperative. A careful
scrutiny of the records reveals that no such evidence was introduced in the
CFI. This latter court relied merely on the mutual agreement of the spouses-
parents. To be sure, this was not sufficient basis to determine the fitness of
each parent to be the custodian of the children.
Besides, at least one of the children Enrique, the eldest is now eleven years
of age and should be given the choice of the parent he wishes to live with. x
x x.
In the instant case, the proceedings before the trial court leave much to be
desired. While a remand of this case would mean further delay, the
childrens paramount interest demand that further proceedings be conducted
to determine the fitness of both petitioner and respondent to assume
custody of their minor children.
WHEREFORE, in view of all the foregoing, the instant case is REMANDED
to the Regional Trial Court of Quezon City, Branch 107, for the purpose of
receiving evidence to determine the fitness of petitioner and respondent to
take custody of their children. Pending the final disposition of this case,
custody shall remain with respondent but subject to petitioners visitation
rights in accordance with the December 7, 1999 order of the trial court.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
Gualberto v Gualberto
G.R. No. 154994 June 28, 2005
JOYCELYN PABLO-GUALBERTO, petitioner,
vs.
CRISANTO RAFAELITO GUALBERTO V, respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 156254 June 28, 2005
CRISANTO RAFAELITO G. GUALBERTO V, petitioner,
vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge,
Regional Trial Court Parañaque City, Branch 260; and JOYCELYN D.
PABLO-GUALBERTO, respondents.
DECISION
PANGANIBAN, J.:
When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children.
The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years of age.
There being no sufficient proof of any compelling reason to separate the
minor from his mother, custody should remain with her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review1
filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court,
assailing the August 30, 2002 Decision2 of the Court of Appeals (CA) in
CA-GR SP No. 70878. The assailed Decision disposed as follows:
"WHEREFORE, premises considered, the Petition for Certiorari is hereby
GRANTED. The assailed Order of May 17, 2002 is hereby SET ASIDE and
ANNULLED. The custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].
"The [respondent] court/Judge is hereby directed to consider, hear and
resolve [petitioner’s] motion to lift the award of custody pendente lite of the
child to [respondent]."3
The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto
V under Rule 65 of the Rules of Court, charging the appellate court with
grave abuse of discretion for denying his Motion for Partial Reconsideration
of the August 30, 2002 Decision. The denial was contained in the CA’s
November 27, 2002 Resolution, which we quote:
"We could not find any cogent reason why the [last part of the dispositive
portion of our Decision of August 30, 2002] should be deleted, hence,
subject motion is hereby DENIED."5
The Facts
The CA narrated the antecedents as follows:
"x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before
[the Regional Trial Court of Parañaque City] a petition for declaration of
nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary
prayer for custody pendente lite of their almost 4-year-old son, minor
Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with
her from the conjugal home and his school (Infant Toddler’s Discovery
Center in Parañaque City) when [she] decided to abandon [Crisanto]
sometime in early February 2002[.] x x x [O]n April 2, 2002, [RTC Judge
Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody
pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite
notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel,
testified before the x x x Judge; x x x documentary evidence [was] also
presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded custody
pendente lite of the child to [Crisanto.] [T]he Order partly read x x x:
‘x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took
their minor child with her to Caminawit, San Jose, Occidental Mindoro. At
that time, the minor was enrolled at B.F. Homes, Parañaque City. Despite
effort[s] exerted by him, he has failed to see his child. [Joycelyn] and the
child are at present staying with the former’s step-father at the latter’s
[residence] at Caminawit, San Jose, Occidental Mindoro.
‘Renato Santos, President of United Security Logistic testified that he was
commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came

Page 17 of 26
up with the conclusion that [she] is having lesbian relations with one Noreen
Gay Cuidadano in Cebu City.
‘The findings of Renato Santos [were] corroborated by Cherry Batistel, a
house helper of the spouses who stated that [the mother] does not care for
the child as she very often goes out of the house and on one occasion, she
saw [Joycelyn] slapping the child.
‘Art. 211 of the Family Code provides as follows:
‘The father and the mother shall jointly exercise parental authority over the
persons of their children. In the case of disagreement, the father’s decision
shall prevail, unless there is a judicial order to the contrary.’
‘The authority of the father and mother over their children is exercised
jointly. This recognition, however, does not place her in exactly the same
place as the father; her authority is subordinated to that of the father.
‘In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the
child, taking into account the respective resources and social and moral
situations of the contending parties.
‘The Court believes that [Joycelyn] had no reason to take the child with her.
Moreover, per Sheriff returns, she is not with him at Caminawit, San Jose,
Occidental Mindoro.
‘WHEREFORE, pendente lite, the Court hereby awards custody of the
minor, Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G.
Gualberto V.’
"x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the award
of custody pendente lite of the child to [Crisanto] was set but the former did
not allegedly present any evidence to support her motion. However, on May
17, 2002, [the] Judge allegedly issued the assailed Order reversing her
Order of April 3, 2002 and this time awarding custody of the child to
[Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to wit:
‘Submitted is [Crisanto’s] Motion to Resolve Prayer for Custody Pendente
Lite and [Joycelyn’s] Motion to Dismiss and the respective Oppositions
thereto.
‘[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person
referred to in the caption of the Petition is one JOCELYN Pablo Gualberto
and not Joycelyn Pablo Gualberto. [Joycelyn] knows she is the person
referred to in the Complaint. As a matter of fact, the body of the Complaint
states her name correct[ly]. The law is intended to facilitate and promote the
administration of justice, not to hinder or delay it. Litigation should be
practicable and convenient. The error in the name of Joycelyn does not
involve public policy and has not prejudiced [her].
‘This case was filed on March 12, 2002. Several attempts were made to
serve summons on [Joycelyn] as shown by the Sheriff’s returns. It appears
that on the 4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie
Nolasco, [Joycelyn’s mother and stepfather, respectively,] read the contents
of the documents presented after which they returned the same.lawphil.net
‘The Court believes that on that day, summons was duly served and this
Court acquired jurisdiction over [Joycelyn].
‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after
thought, perforce the Motion to [D]ismiss should be denied.
‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely
four years old. Under Article 213 of the Family Code, he shall not be
separated from his mother unless the Court finds compelling reasons to
order otherwise. The Court finds the reason stated by [Crisanto] not [to] be
compelling reasons.1avvphil.zw+ The father should however be entitled to
spend time with the minor. These do not appear compelling reasons to
deprive him of the company of his child.
‘When [Joycelyn] appeared before this Court, she stated that she has no
objection to the father visiting the child even everyday provided it is in
Mindoro.
‘The Court hereby grants the mother, [Joycelyn], the custody of Crisanto
Rafaello P. Gualberto, with [the] right of [Crisanto] to have the child with him
every other weekend.
‘WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
2. Custody pendente lite is hereby given to the mother Joycelyn Pablo
Gualberto with the right of the father, x x x [Crisanto], to have him every
other week-end.
3. Parties are admonished not to use any other agencies of the government
like the CIDG to interfere in this case and to harass the parties.’"6
In a Petition for Certiorari7 before the CA, Crisanto charged the Regional
Trial Court (Branch 260) of Parañaque City with grave abuse of discretion
for issuing its aforequoted May 17, 2002 Order. He alleged that this Order
superseded, without any factual or legal basis, the still valid and subsisting
April 3, 2002 Order awarding him custody pendente lite of his minor son;
and that it violated Section 14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had
been committed by the trial court in reversing the latter court’s previous
Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The
appellate court explained that the only incident to resolve was Joycelyn’s
Motion to Dismiss, not the issuance of the earlier Order. According to the
CA, the prior Order awarding provisional custody to the father should
prevail, not only because it was issued after a hearing, but also because the
trial court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded
from considering and resolving Joycelyn’s Motion to lift the award of
custody pendente lite to Crisanto, as that Motion had yet to be properly
considered and ruled upon. However, it directed that the child be turned
over to him until the issue was resolved.
Hence, these Petitions.8
Issues
In GR No. 154994, Petitioner Joycelyn submits these issues for our
consideration:
"1. Whether or not the Respondent Court of Appeals, when it awarded the
custody of the child to the father, violated Art. 213 of the Family Code,
which mandates that ‘no child under seven years of age shall be separated
from the mother, unless the court finds compelling reasons to order
otherwise.’
"2. Is it Article 213 or Article 211 which applies in this case involving four-
year old Rafaello?"9
On the other hand, Crisanto raises the following issues:
"A. Did Respondent Court commit grave abuse of discretion amounting to
or in excess of jurisdiction when, in its August 30, 2002 Decision, it ordered
respondent court/Judge ‘to consider, hear and resolve the motion to lift
award of custody pendente lite of the child to petitioner and x x x denied the
motion for reconsideration thereof in its November 27, 2002 Resolution,
considering that: (1) there is no such motion ever, then or now pending, with
the court a quo; (2) the November 27, 2002 Resolution is unconstitutional;
and (3) the April 3, 2002 Order of respondent Judge, the validity of which
has been upheld in the August 30, 2002 Decision of the respondent Court,
has become final and executory; and
"B. Ought not the ancillary remedies [o]f habeas corpus, because the
whereabouts, physical and mental condition of the illegally detained Minor
Rafaello is now unknown to petitioner and preliminary mandatory injunction
with urgent prayer for immediate issuance of preliminary [injunction],
petitioner having a clear and settled right to custody of Minor Rafaello which
has been violated and still is being continuously violated by [petitioner
Joycelyn], be granted by this Honorable Court?"10
Being interrelated, the procedural challenges and the substantive issues in
the two Petitions will be addressed jointly.
The Court’s Ruling
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall first
dispose of a threshold issue. In GR No. 154994, therein Respondent
Crisanto contends that the Petition for Review was filed beyond the
deadline (October 24, 2002) allowed by the Rules of Court and by this

Page 18 of 26
Court. He claims that Registry Bill No. 88 shows that the Petition was sent
by speed mail, only on November 4, 2002. Furthermore, he assails the
Petition for its prematurity, since his Motion for Partial Reconsideration of
the August 30, 2002 CA Decision was still pending before the appellate
court. Thus, he argues that the Supreme Court has no jurisdiction over
Joycelyn’s Petition.
Timeliness of the Petition
The manner of filing and service Joycelyn’s Petition by mail is governed by
Sections 3 and 7 of Rule 13 of the Rules of Court, which we quote:
"SEC. 3. Manner of filing. – The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made by presenting
the original copies thereof, plainly indicated as such personally to the clerk
of court or by sending them by registered mail. xxx In the second case, the
date of mailing of motions, pleadings and other papers or payments or
deposits, as shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing, payment, or deposit in
court. The envelope shall be attached to the records of the case.
"x x x x x x x x x
"SEC. 7. Service by mail. – Service by registered mail shall be made by
depositing the copy in the office, in a sealed envelope, plainly addressed to
the party or his counsel at his office, if known, otherwise at his residence, if
known, with postage fully pre-paid, and with instructions to the postmaster
to return the mail to the sender after ten (10) days if undelivered. If no
registry service is available in the locality of either the sender of the
addressee, service may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CA’s August 30, 2002
Decision on September 9, 2002. On September 17, she filed before this
Court a Motion for a 30-day extension of time to file a petition for review on
certiorari. This Motion was granted,11 and the deadline was thus extended
until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were sent
to this Court and to the parties by registered mail12 at the Biñan, Laguna
Post Office on October 24, 2002. This is the date clearly stamped on the
face of the envelope13 and attested to in the Affidavit of Service14
accompanying the Petition. Petitioner Joycelyn explained that the filing and
the service had been made by registered mail due to the "volume of
delivery assignments and the lack of a regular messenger."15
The Petition is, therefore, considered to have been filed on October 24,
2002, its mailing date as shown by the post office stamp on the envelope.
The last sentence of Section 3 of Rule 13 of the Rules provides that the
date of filing may be shown either by the post office stamp on the envelope
or by the registry receipt. Proof of its filing, on the other hand, is shown by
the existence of the petition in the record, pursuant to Section 12 of Rule
13.16
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows
the date November 2, 2002, merely discloses when the mail matters
received by the Biñan Post Office on October 24, 2002, were dispatched or
sent to the Central Mail Exchange for distribution to their final
destinations.17 The Registry Bill does not reflect the actual mailing date.
Instead, it is the postal Registration Book18 that shows the list of mail
matters that have been registered for mailing on a particular day, along with
the names of the senders and the addressees. That book shows that
Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters
for the Supreme Court, were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out
that his Urgent Motion for Partial Reconsideration19 was still awaiting
resolution by the CA when she filed her Petition before this Court on
October 24, 2002. The CA ruled on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed
her Motion for Extension of Time to file her Petition for Review, she might
have still been unaware that he had moved for a partial reconsideration of
the August 20, 2002 CA Decision. Nevertheless, upon being notified of the
filing of his Motion, she should have manifested that fact to this Court.
With the CA’s final denial of Crisanto’s Motion for Reconsideration,
Joycelyn’s lapse may be excused in the interest of resolving the substantive
issues raised by the parties.
First Issue:
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its
discretion when it ordered the trial court judge to "consider, hear and
resolve the motion to lift the award of custody pendente lite" without any
proper motion by Joycelyn and after the April 3, 2002 Order of the trial court
had become final and executory. The CA is also charged with grave abuse
of discretion for denying his Motion for Partial Reconsideration without
stating the reasons for the denial, allegedly in contravention of Section 1 of
Rule 36 of the Rules of Court.
The Order to Hear the Motion to Lift the Award of Custody Pendente Lite
Proper
To begin with, grave abuse of discretion is committed when an act is 1)
done contrary to the Constitution, the law or jurisprudence;20 or 2)
executed "whimsically or arbitrarily" in a manner "so patent and so gross as
to amount to an evasion of a positive duty, or to a virtual refusal to perform
the duty enjoined."21 What constitutes grave abuse of discretion is such
capricious and arbitrary exercise of judgment as that which is equivalent, in
the eyes of the law, to lack of jurisdiction.22
On the basis of these criteria, we hold that the CA did not commit grave
abuse of discretion.
First, there can be no question that 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 necessary 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.23 This
truism applies with more force when the relief granted has been specifically
prayed for, as in this case.
Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is her
ancillary prayer for the court to lift and set aside its April 3, 2002 Order
awarding to Crisanto custody pendente lite of their minor son. Indeed, the
necessary consequence of granting her Motion to Dismiss would have been
the setting aside of the Order awarding Crisanto provisional custody of the
child. Besides, even if the Motion to Dismiss was denied -- as indeed it was
-- the trial court, in its discretion and if warranted, could still have granted
the ancillary prayer as an alternative relief.
Parenthetically, Joycelyn’s Motion need not have been verified because of
the provisional nature of the April 3, 2002 Order. Under Rule 3825 of the
Rules of Court, verification is required only when relief is sought from a final
and executory Order. Accordingly, the court may set aside its own orders
even without a proper motion, whenever such action is warranted by the
Rules and to prevent a miscarriage of justice.26
Denial of the Motion for Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly
and distinctly the reasons for their dispositions) refers only to decisions and
final orders on the merits, not to those resolving incidental matters.27 The
provision reads:
"SECTION 1. Rendition of judgments and final orders. – A judgment or final
order determining the merits of the case shall be in writing personally and
directly prepared by the judge, stating clearly and distinctly the facts and the
law on which it is based, signed by him, and filed with the clerk of court."
(Italics supplied)
Here, the declaration of the nullity of marriage is the subject of the main
case, in which the issue of custody pendente lite is an incident. That
custody and support of common children may be ruled upon by the court
while the action is pending is provided in Article 49 of the Family Code,
which we quote :
"Art. 49. During the pendency of the action28 and in the absence of
adequate provisions in a written agreement between the spouses, the Court
shall provide for the support of the spouses and the custody and support of
their common children. x x x."
Clearly then, the requirement cited by Crisanto is inapplicable. In any event,
in its questioned Resolution, the CA clearly stated that it "could not find any
cogent reason" to reconsider and set aside the assailed portion of its
August 30, 2002 Decision.
The April 3, 2002 Order Not Final and Executory
Third, the award of temporary custody, as the term implies, is provisional
and subject to change as circumstances may warrant. In this connection,

Page 19 of 26
there is no need for a lengthy discussion of the alleged finality of the April 3,
2002 RTC Order granting Crisanto temporary custody of his son. For that
matter, even the award of child custody after a judgment on a marriage
annulment is not permanent; it may be reexamined and adjusted if and
when the parent who was given custody becomes unfit.29
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children.
The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years old.30 On
the one hand, the mother insists that, based on Article 213 of the Family
Code, her minor child cannot be separated from her. On the other hand, the
father argues that she is "unfit" to take care of their son; hence, for
"compelling reasons," he must be awarded custody of the child.
Article 213 of the Family Code31 provides:
"ART. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the court. The court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise."
This Court has held that when the parents are separated, legally or
otherwise, the foregoing provision governs the custody of their child.32
Article 213 takes its bearing from Article 363 of the Civil Code, which reads:
"Art. 363. In all questions on the care, custody, education and property of
children, the latter’s welfare shall be paramount. No mother shall be
separated from her child under seven years of age, unless the court finds
compelling reasons for such measure."(Italics supplied)
The general rule that children under seven years of age shall not be
separated from their mother finds its raison d’etre in the basic need of minor
children for their mother’s loving care.33 In explaining the rationale for
Article 363 of the Civil Code, the Code Commission stressed thus:
"The general rule is recommended in order to avoid a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for ‘compelling reasons’ for the
good of the child: those cases must indeed be rare, if the mother’s heart is
not to be unduly hurt. If she has erred, as in cases of adultery, the penalty
of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect
upon the baby who is as yet unable to understand the situation." (Report of
the Code Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare
Code (Presidential Decree No. 603).34 Article 17 of the same Code is even
more explicit in providing for the child’s custody under various
circumstances, specifically in case the parents are separated. It clearly
mandates that "no child under five years of age shall be separated from his
mother, unless the court finds compelling reasons to do so." The provision
is reproduced in its entirety as follows:
"Art. 17. Joint Parental Authority. – The father and the mother shall exercise
jointly just and reasonable parental authority and responsibility over their
legitimate or adopted children. In case of disagreement, the father’s
decision shall prevail unless there is a judicial order to the contrary.
"In case of the absence or death of either parent, the present or surviving
parent shall continue to exercise parental authority over such children,
unless in case of the surviving parent’s remarriage, the court for justifiable
reasons, appoints another person as guardian.
"In case of separation of his parents, no child under five years of age shall
be separated from his mother, unless the court finds compelling reasons to
do so." (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family
Code. It is unmistakable from the language of these provisions that Article
21135 was derived from the first sentence of the aforequoted Article 17;
Article 212,36 from the second sentence; and Article 213,37 save for a few
additions, from the third sentence. It should be noted that the Family Code
has reverted to the Civil Code provision mandating that a child below seven
years should not be separated from the mother.38
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
Mandatory Character of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in
Article 363 of the Civil Code and the observations made by the Code
Commission underscore the mandatory character of the word.40 Holding in
that case that it was a mistake to deprive the mother of custody of her two
children, both then below the age of seven, the Court stressed:
"[Article 363] prohibits in no uncertain terms the separation of a mother and
her child below seven years, unless such a separation is grounded upon
compelling reasons as determined by a court."41
In like manner, the word "shall" in Article 213 of the Family Code and
Section 642 of Rule 99 of the Rules of Court has been held to connote a
mandatory character.43 Article 213 and Rule 99 similarly contemplate a
situation in which the parents of the minor are married to each other, but are
separated by virtue of either a decree of legal separation or a de facto
separation.44 In the present case, the parents are living separately as a
matter of fact.
The Best Interest of the Child a Primary Consideration
The Convention on the Rights of the Child provides that "[i]n all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration."45
The principle of "best interest of the child" pervades Philippine cases
involving adoption, guardianship, support, personal status, minors in conflict
with the law, and child custody. In these cases, it has long been recognized
that in choosing the parent to whom custody is given, the welfare of the
minors should always be the paramount consideration.46 Courts are
mandated to take into account all relevant circumstances that would have a
bearing on the children’s well-being and development. Aside from the
material resources and the moral and social situations of each parent, other
factors may also be considered to ascertain which one has the capability to
attend to the physical, educational, social and moral welfare of the
children.47 Among these factors are the previous care and devotion shown
by each of the parents; their religious background, moral uprightness, home
environment and time availability; as well as the children’s emotional and
educational needs
Tender-Age Presumption
As pointed out earlier, there is express statutory recognition that, as a
general rule, a mother is to be preferred in awarding custody of children
under the age of seven. The caveat in Article 213 of the Family Code
cannot be ignored, except when the court finds cause to order otherwise.48
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: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a communicable
disease.49
Here, Crisanto cites immorality due to alleged lesbian relations as the
compelling reason to deprive Joycelyn of custody. It has indeed been held
that under certain circumstances, the mother’s immoral conduct may
constitute a compelling reason to deprive her of custody.50
But sexual preference or moral laxity alone does not prove parental neglect
or incompetence. Not even the fact that a mother is a prostitute or has been
unfaithful to her husband would render her unfit to have custody of her
minor child.51 To deprive the wife of custody, the husband must clearly
establish that her moral lapses have had an adverse effect on the welfare of
the child or have distracted the offending spouse from exercising proper
parental care.52
To this effect did the Court rule in Unson III v. Navarro,53 wherein the
mother was openly living with her brother-in-law, the child’s uncle. Under
that circumstance, the Court deemed it in the nine-year-old child’s best
interest to free her "from the obviously unwholesome, not to say immoral
influence, that the situation in which the mother ha[d] placed herself might
create in [the child’s] moral and social outlook."54
In Espiritu v. CA,55 the Court took into account psychological and case
study reports on the child, whose feelings of insecurity and anxiety had
been traced to strong conflicts with the mother. To the psychologist the child
revealed, among other things, that the latter was disturbed upon seeing "her
mother hugging and kissing a ‘bad’ man who lived in their house and

Page 20 of 26
worked for her father." The Court held that the "illicit or immoral activities of
the mother had already caused the child emotional disturbances,
personality conflicts, and exposure to conflicting moral values x x x."
Based on the above jurisprudence, it is therefore not enough for Crisanto to
show merely that Joycelyn was a lesbian. He must also demonstrate that
she carried on her purported relationship with a person of the same sex in
the presence of their son or under circumstances not conducive to the
child’s proper moral development. Such a fact has not been shown here.
There is no evidence that the son was exposed to the mother’s alleged
sexual proclivities or that his proper moral and psychological development
suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-
Ricafort, ruled in her May 17, 2002 Order that she had found the "reason
stated by [Crisanto] not to be compelling"56 as to suffice as a ground for
separating the child from his mother. The judge made this conclusion after
personally observing the two of them, both in the courtroom and in her
chambers on April 16, 2002, and after a chance to talk to the boy and to
observe him firsthand. This assessment, based on her unique opportunity to
witness the child’s behavior in the presence of each parent, should carry
more weight than a mere reliance on the records. All told, no compelling
reason has been adduced to wrench the child from the mother’s custody.
No Grant of Habeas Corpus and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep her minor son in her
custody, the writ of habeas corpus and the preliminary mandatory injunction
prayed for by Crisanto have no leg to stand on. A writ of habeas corpus
may be issued only when the "rightful custody of any person is withheld
from the person entitled thereto,"57 a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction
cannot be granted, because Crisanto’s right to custody has not been proven
to be "clear and unmistakable."58 Unlike an ordinary preliminary injunction,
the writ of preliminary mandatory injunction is more cautiously regarded,
since the latter requires the performance of a particular act that tends to go
beyond the maintenance of the status quo.59 Besides, such an injunction
would serve no purpose, now that the case has been decided on its
merits.60
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed
Decision of the Court of Appeals is hereby REVERSED and the May 17,
2002 Regional Trial Court Order REINSTATED. The Petition in GR No.
156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito
Gualberto V.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.
FOOTNOTES
8 The two cases were consolidated on October 13, 2004. They were
deemed submitted for decision on June 14, 2004, upon the Court’s receipt
of Joycelyn Gualberto’s Memorandum in GR No. 156254, signed by Atty.
German A. Gineta. Crisanto Gualberto V’s Memorandum, signed by Atty.
Reynaldo B. Aralar, was filed on June 4, 2004.
In GR No. 154994, Joycelyn’s Memorandum, also signed by Atty. Gineta,
was received by the Court on May 8, 2003. Crisanto’s Memorandum and
Reply Memorandum, also signed by Atty. Aralar, were filed on May 5, 2003
and May 16, 2003, respectively.
bid. §11 of Rule 13 provides that a resort to modes of service other than
personal service "must be accompanied by a written explanation why the
service or filing was not done personally"; and that "[v]iolation thereof may
be cause to consider the paper as not filed."
16 §12 of Rule 13 of the Rules of Court provides:
"SEC. 12. Proof of filing. – The filing of a pleading or paper shall be proved
by its existence in the record of the case. If it is not in the record, but is
claimed to have been filed personally, the filing shall be proved by the
written or stamped acknowledgment of its filing by the clerk of court on a
copy of the same; if filed by registered mail, by the registry receipt and by
the affidavit of the person who did the mailing, containing a full statement of
the date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and with
instructions to the postmaster to return the mail to the sender after ten (10)
days if not delivered." (Italics supplied)
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
24 GR No. 154994 rollo, pp. 232-236. Among others, Joycelyn prayed that
"the Order of this Honorable Court dated April 3, 2002, awarding custody of
minor Crisanto Rafaello P. Gualberto X to [the father] be lifted and set aside
and [a] new one issued maintaining the status quo."
25 §§1 and 3 of Rule 38 of the Rules of Court pertinently provides:
"SEC. 1. Petition for relief from judgment, order, or other proceedings. –
When a judgment or final order is entered, or any other proceeding is
thereafter taken against a party in any court through fraud, accident,
mistake, or excusable negligence, he may file a petition in such court and in
the same case praying that the judgment, order or proceedings be set
aside."
"SEC. 3. Time for filing petition; contents and verification. – A petition
provided for in either of the preceding sections of this Rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside and not more than six (6) months
after such judgment or final order was entered, or such proceeding was
taken; x x x." (Italics supplied)
34 Article 8 of PD No. 603:
"Art. 8. Child’s welfare paramount. – In all questions regarding the care,
custody, education and property of the child, his welfare shall be the
paramount consideration."
35 Article 211 of the Family Code:
"Art. 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."
36 Article 212 of the Family Code:
"Art. 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."
37 The Article is worded as follows:
"Art. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
"No child under seven years of age shall be separated from the mother
unless the court finds compelling reasons to order otherwise."
40 The Court in this case emphasized that under ordinary parlance and in
its ordinary signification, the term "shall" is a word of command; one that is
generally imperative or mandatory; and that which "operates to impose a
duty which may be enforced, particularly if public policy is in favor of its
meaning or when public interest is involved. x x x."
42 "SEC. 6. Proceedings as to child whose parents are separated. Appeal.
– When husband and wife are divorced or living separately and apart from
each other, and the question as to the care, custody, and control of a child
or children of their marriage is brought before a Court of First Instance by
petition or as an incidence to any other proceeding, the court, upon hearing
the testimony as may be pertinent, shall award the care, custody, and
control of each such child as will be for its best interest, permitting the child
to choose which parent it prefers to live with if it be over ten years of age,
unless the parent so chosen be unfit to take charge of the child by reason of
moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such
hearing, it appears that both parents are improper persons to have the care,
custody, and control of the child, the court may either designate the paternal
or maternal grandparents of the child, or his oldest brother or sister, or
some reputable and discreet person to take charge of such child, or commit
it to any suitable asylum, children’s home, or benevolent society. The court
may in conformity with the provisions of the Civil Code order either or both
parents to support or help support said child, irrespective of who may be its
custodian, and may make any order that is just and reasonable permitting
the parent who is deprived of its care and custody to visit the child or have
temporary custody thereof. Either parent may appeal from an order made in
accordance with the provisions of this section. No child under seven years

Page 21 of 26
of age shall be separated from its mother, unless the court finds there are
compelling reasons therefor."
57 §1 of Rule 102 of the Rules of Court, which provides as follows:
"Sec. 1. To what habeas corpus extends. – Except as otherwise expressly
provided by law, the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or
by which the rightful custody of any person is withheld from the person
entitled thereto."(Italics supplied)
58 As held in Pelejo v. Court of Appeals, 117 SCRA 665, 668, October 18,
1982, the issuance of a writ of preliminary mandatory injunction is justified
only when the following are shown: 1) the complainant has a clear legal
right; 2) that right has been violated and the invasion is material and
substantial; and 3) there is an urgent and permanent necessity for the writ
to prevent serious damage. See also Spouses Crystal v. Cebu International
School, 356 SCTA 296, 305, April 4, 2001; Heirs of Asuncion v. Gervacio
Jr., 363 Phil. 666, 674, March 9, 1999; Suico Industrial Corporation v. CA,
361 Phil. 160, 169-170, January 20, 1999 (citing Arcega v. CA, 341 Phil.
166, 171, July 7, 1997).
60 Under Section 1 of Rule 58 of the Rules of Court, preliminary injunction
is defined as "an order granted at any stage of an action or proceeding prior
to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall be known as a
preliminary mandatory injunction." (Emphasis supplied.) See Miriam
College Foundation Inc. v. CA, 348 SCRA 265, 277, December 15, 2000;
Spouses Lopez v. CA, 379 Phil. 743, 749-750, January 20, 2000;
Paramount Insurance Corporation v. CA, 369 Phil. 641, 648, July 19, 1999.
Salientes v Abanilla
G.R. No. 162734 August 29, 2006
MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES,
and ROSARIO C. SALIENTES, Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO,
JR., REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY,
Respondents
DECISION
QUISUMBING, J.:
The instant petition assails the Decision 1dated November 10, 2003 of the
Court of Appeals in CA-G.R. SP No. 75680, which dismissed the petition for
certiorari against the orders of the Regional Trial Court in Special
Proceedings No. 03-004. Likewise assailed is the Court of Appeals’
Resolution 2dated March 19, 2004 denying reconsideration.
The facts of the case are as follows:
Private respondent Loran S.D. Abanilla and petitioner Marie Antonette
Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S.
Abanilla. They lived with Marie Antonette’s parents, petitioners Orlando B.
Salientes and Rosario C. Salientes. Due to in-laws problems, private
respondent suggested to his wife that they transfer to their own house, but
Marie Antonette refused. So, he alone left the house of the Salientes.
Thereafter, he was prevented from seeing his son.
Later, Loran S.D. Abanilla in his personal capacity and as the
representative of his son, filed a Petition for Habeas Corpus and Custody, 3
docketed as Special Proceedings No. 03-004 before the Regional Trial
Court of Muntinlupa City. On January 23, 2003, the trial court issued the
following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the
Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes
and Rosario C. Salientes are hereby directed to produce and bring before
this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on
January 31, 2003 at 1:00 o’clock in the afternoon and to show cause why
the said child should not be discharged from restraint.
Let this Writ be served by the Sheriff or any authorized representative of
this Court, who is directed to immediately make a return.
SO ORDERED. 4
Petitioners moved for reconsideration which the court denied.
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
Consequently, petitioners filed a petition for certiorari with the Court of
Appeals, but the same was dismissed on November 10, 2003. The
appellate court affirmed the February 24, 2003 Order of the trial court
holding that its January 23, 2003 Order 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 appellate court held that 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 of his custody. The Court of
Appeals ruled thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED. 5
Petitioners moved for reconsideration, which was denied on March 19,
2004.
Hence, petitioners interposed this appeal by certiorari anchored on the
following grounds:
1. The Court of Appeals erred in not pronouncing the respondent judge
gravely abused his discretion, amounting to lack or in excess of jurisdiction
in issuing an order for the petitioner-mother to first show cause why her own
three-year old child in her custody should not be discharged from a so-
called "restraint" despite no evidence at all of restraint and no evidence of
compelling reasons of maternal unfitness to deprive the petitioner-mother of
her minor son of tender years. The assailed orders, resolutions and
decisions of the lower court and the Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that the respondent judge
gravely abused his discretion in issuing a writ of habeas corpus which
clearly is not warranted considering that there is no unlawful restraint by the
mother and considering further that the law presumes the fitness of the
mother, thereby negating any notion of such mother illegally restraining or
confining her very own son of tender years. The petition is not even
sufficient in substance to warrant the writ. The assailed orders are clearly
void.
3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case
supports rather than negates the position of the petitioners.
4. Contrary to the Court of Appeals decision, summary proceeding does
violence to the tender-years-rule
5. The Court of Appeals failed to consider that the private respondent failed
to present prima facie proof of any compelling reason of the unfitness of the
petitioner-mother;
6. The Court of Appeals failed to see that the New Rules on Custody
SUFFICES AS REMEDY. 6
Plainly put, the issue is: Did the Court of Appeals err when it dismissed the
petition for certiorari against the trial court’s orders dated January 23, 2003
and February 24, 2003?
Petitioners contend that the order is contrary to Article 213 7 of the Family
Code, which provides that no child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to
order otherwise. They maintain that herein respondent Loran had the
burden of showing any compelling reason but failed to present even a prima
facie proof thereof.
Petitioners posit that even assuming that there were compelling reasons,
the proper remedy for private respondent was simply an action for custody,
but not habeas corpus. Petitioners assert that habeas corpus is unavailable
against the mother who, under the law, has the right of custody of the
minor. They insist there was no illegal or involuntary restraint of the minor
by his own mother. There was no need for the mother to show cause and
explain the custody of her very own child.
Private respondent counters that petitioners’ argument based on Article 213
of the Family Code applies only to the second part of his petition regarding
the custody of his son. It does not address the first part, which pertains to
his right as the father to see his son. He asserts that the writ of habeas
corpus is available against any person who restrains the minor’s right to see
his father and vice versa. He avers that the instant petition is merely filed for
delay, for had petitioners really intended to bring the child before the court
in accordance with the new rules on custody of minors, they would have
done so on the dates specified in the January 23, 2003 and the February
24, 2003 orders of the trial court.

Page 22 of 26
Private respondent maintains that, under the law, he and petitioner Marie
Antonette have shared custody and parental authority over their son. He
alleges that at times when petitioner Marie Antonette is out of the country as
required of her job as an international flight stewardess, he, the father,
should have custody of their son and not the maternal grandparents.
As correctly pointed out by the Court of Appeals, the assailed January 23,
2003 Order of the trial court 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. The assailed order was an
interlocutory order precedent to the trial court’s full inquiry into the issue of
custody, which was still pending before it.
Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is
not appealable but the aggrieved party may file an appropriate special
action under Rule 65. The aggrieved party must show that the court gravely
abused its discretion in issuing the interlocutory order. In the present case,
it is incumbent upon petitioners to show that the trial court gravely abused
its discretion in issuing the order.
Habeas corpus may be resorted to in cases where rightful custody is
withheld from a person entitled thereto. 9 Under Article 211 10 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. 11 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 12 unequivocally
provides that in all questions regarding the care and custody, among others,
of the child, his welfare shall be the paramount consideration. 13
Again, it bears stressing that the order did not grant custody of the minor to
any of the parties but merely directed petitioners to produce the minor in
court and explain why private respondent is prevented from seeing his child.
This is in line with the directive in Section 9 14 of A.M. 03-04-04-SC 15 that
within fifteen days after the filing of the answer or the expiration of the
period to file answer, the court shall issue an order requiring the respondent
(herein petitioners) to present the minor before the court. This was exactly
what the court did.
Moreover, Article 213 of the Family Code deals with the judicial adjudication
of custody and serves as a guideline for the proper award of custody by the
court. Petitioners can raise it as a counter argument for private 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 seven years of age.
In sum, the trial court did not err in issuing the orders dated January 23,
2003 and February 24, 2003. Hence, the Court of Appeals properly
dismissed the petition for certiorari against the said orders of the trial court.
WHEREFORE, the petition is DENIED. The Decisiondated November 10,
2003 and the Resolutiondated March 19, 2004 of the Court of Appeals in
CA-G.R. SP No. 75680 are AFFIRMED. Costs against petitioners.
SO ORDERED.
FOOTNOTES
ART. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother
unless the court finds compelling reasons to order otherwise.
8 SECTION 1. Subject of appeal. – . . .
No appeal may be taken from:
xxxx
(c) an interlocutory order;
xxxx
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
In all of the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil action
under Rule 65.
9 Rules of Court, Rule 102, Sec. 1. To what habeas corpus extends. –
Except as otherwise expressly provided by law, the writ of habeas corpus
shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.
10 ART. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In cases of
disagreement, the father’s decision shall prevail, unless there is a judicial
order to the contrary.
SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of
the answer or the expiration of the period to file answer, the court shall
issue an order: (1) fixing a date for the pre-trial conference; (2) directing the
parties to file and serve their respective pre-trial briefs in such manner as
shall ensure receipt thereof by the adverse party at least three days before
the date of pre-trial; and (3) requiring the respondent to present the minor
before the court. [Emphasis supplied.]
Gamboa-Hirsch v CA
G.R. No. 174485 July 11, 2007
AGNES GAMBOA-HIRSCH Petitioner,
vs.
HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH,
Respondents.
RESOLUTION
VELASCO, JR., J.:
This is a petition for certiorari1 under Rule 65 which seeks to set aside the
June 8, 2006 Decision2 of the Court of Appeals (CA) in CA-G.R. SP No.
94329, which granted private respondent Franklin Harvey Hirsch (Franklin)
joint custody with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor
daughter Simone Noelle Hirsch (Simone); and the August 3, 2006 CA
Resolution3 denying petitioner’s Motion for Reconsideration for lack of
merit. Petitioner also prays for the issuance of a temporary restraining
order/injunction preventing the execution and implementation of the
assailed June 8, 2006 CA Decision.
Franklin and Agnes were married on December 23, 2000 in the City of
Bacolod, and established their conjugal dwelling in Diniwid, Boracay Island,
Malay, Aklan. On December 21, 2002, a child was born to them and was
named Simone. In 2005, the couple started to have marital problems as
Agnes wanted to stay in Makati City, while Franklin insisted that they stay in
Boracay Island. On March 23, 2006, Agnes came to their conjugal home in
Boracay, and asked for money and for Franklin’s permission for her to bring
their daughter to Makati City for a brief vacation. Franklin readily agreed,
but soon thereafter discovered that neither Agnes nor their daughter
Simone would be coming back to Boracay.
Franklin then filed a petition for habeas corpus before the CA for Agnes to
produce Simone in court. On May 19, 2006, the CA issued a Resolution
which ordered that a writ of habeas corpus be issued ordering that Simone
be brought before said court on May 26, 2006. After a series of hearings
and presentation of evidence, the CA, on June 8, 2006, promulgated the
assailed Decision granting Franklin joint custody with Agnes of their minor
child. Agnes filed a Motion for Reconsideration of this Decision, which was
denied in the CA’s August 3, 2006 Resolution for lack of merit.
Petitioner now comes before this Court praying that we set aside the June
8, 2006 Decision and August 3, 2006 Resolution of the CA, and that we
issue a temporary restraining order/injunction on the execution and
implementation of the assailed rulings of the CA based on the following
grounds:
(A)
The Court of Appeals seriously erred and acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it ruled upon,
granted, and decided the matter of custody x x x during the May 26, 2006
hearing conducted on the petition for writ of habeas corpus in relation to
and with custody of a minor under A.M. No. 03-03-04-SC, C.A.-GR SP. No.
94329, as no reception of evidence to support said decision was had
thereon, and the honorable court merely based its decision on mere
conjectures and presumptions.

Page 23 of 26
(B)
The Court of Appeals seriously erred and acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it denied the
motion for reconsideration filed by [petitioner Agnes] and only made
addendums thereon appertaining to the custody aspect in its Decision that
the same is deemed necessary for the protection of the interest of the child
and a mere temporary arrangement while the case involving the herein
parties are pending before the Regional Trial Court x x x quite contrary to its
pronouncements during the May 26, 2006 hearing when the matter of
custody was insisted upon by [respondent Franklin].
(C)
The Court of Appeals seriously erred and acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it granted joint
custody in utter disregard of the provisions of the Family Code, as to minors
seven (7) years of age and below, in relation to the jurisprudence and
pronouncements laid down by the Honorable Supreme Court on the matter
of the said provision.4
Acting on the petition, this Court issued its October 2, 2006 Resolution
denying petitioner’s prayer for the issuance of a temporary restraining order.
Petitioner then filed a Motion for Reconsideration of this Resolution, and on
April 11, 2007, this Court granted petitioner’s Motion for Reconsideration,
issued a temporary restraining order, and awarded the sole custody of the
minor, Simone, to petitioner.
This petition has merit.
The CA committed grave abuse of discretion when it granted joint custody
of the minor child to both parents.
The Convention on the Rights of the Child provides that "in all actions
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 (emphasis
supplied)."5 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.6
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: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, or affliction with a communicable
disease.7 Here, the mother was not shown to be unsuitable or grossly
incapable of caring for her minor child. All told, no compelling reason has
been adduced to wrench the child from the mother’s custody.1avvphi1
WHEREFORE, premises considered, the petition is GIVEN DUE COURSE.
The June 8, 2006 Decision and August 3, 2006 Resolution of the CA are
hereby SET ASIDE. Sole custody over Simone Noelle Hirsch is hereby
AWARDED to the mother, petitioner Agnes Gamboa-Hirsch.
SO ORDERED.
Dacasin v Dacasin
G.R. No. 168785 February 5, 2010
HERALD BLACK DACASIN, Petitioner,
vs.
SHARON DEL MUNDO DACASIN, Respondent.
DECISION
CARPIO, J.:
The Case
For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child
custody agreement for lack of jurisdiction.
The Facts
Petitioner Herald Dacasin (petitioner), American, and respondent Sharon
Del Mundo Dacasin (respondent), Filipino, were married in Manila in April
1994. They have one daughter, Stephanie, born on 21 September 1995. In
June 1999, respondent sought and obtained from the Circuit Court, 19th
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against
petitioner.3 In its ruling, the Illinois court dissolved the marriage of petitioner
and respondent, awarded to respondent sole custody of Stephanie and
retained jurisdiction over the case for enforcement purposes.
On 28 January 2002, petitioner and respondent executed in Manila a
contract (Agreement4 ) for the joint custody of Stephanie. The parties chose
Philippine courts as exclusive forum to adjudicate disputes arising from the
Agreement. Respondent undertook to obtain from the Illinois court an order
"relinquishing" jurisdiction to Philippine courts.
In 2004, petitioner sued respondent in the Regional Trial Court of Makati
City, Branch 60 (trial court) to enforce the Agreement. Petitioner alleged
that in violation of the Agreement, respondent exercised sole custody over
Stephanie.
Respondent sought the dismissal of the complaint for, among others, lack of
jurisdiction because of the Illinois court’s retention of jurisdiction to enforce
the divorce decree.
The Ruling of the Trial Court
In its Order dated 1 March 2005, the trial court sustained respondent’s
motion and dismissed the case for lack of jurisdiction. The trial court held
that: (1) it is precluded from taking cognizance over the suit considering the
Illinois court’s retention of jurisdiction to enforce its divorce decree, including
its order awarding sole custody of Stephanie to respondent; (2) the divorce
decree is binding on petitioner following the "nationality rule" prevailing in
this jurisdiction;5 and (3) the Agreement is void for contravening Article
2035, paragraph 5 of the Civil Code6 prohibiting compromise agreements
on jurisdiction.7
Petitioner sought reconsideration, raising the new argument that the divorce
decree obtained by respondent is void. Thus, the divorce decree is no bar
to the trial court’s exercise of jurisdiction over the case.
In its Order dated 23 June 2005, the trial court denied reconsideration,
holding that unlike in the case of respondent, the divorce decree is binding
on petitioner under the laws of his nationality.
Hence, this petition.
Petitioner submits the following alternative theories for the validity of the
Agreement to justify its enforcement by the trial court: (1) the Agreement
novated the valid divorce decree, modifying the terms of child custody from
sole (maternal) to joint;8 or (2) the Agreement is independent of the divorce
decree obtained by respondent.
The Issue
The question is whether 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 Ruling of the Court
The trial court 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.
Regional Trial Courts Vested With Jurisdiction
to Enforce Contracts
Subject matter jurisdiction is conferred by law. At the time petitioner filed his
suit in the trial court, statutory law vests on Regional Trial Courts exclusive
original jurisdiction over civil actions incapable of pecuniary estimation.9 An
action for specific performance, such as petitioner’s suit to enforce the
Agreement on joint child custody, belongs to this species of actions.10
Thus, jurisdiction-wise, petitioner went to the right court.
Indeed, the trial court’s refusal to entertain petitioner’s suit was grounded
not on its lack of power to do so but on its thinking that the Illinois court’s
divorce decree stripped it of jurisdiction. This conclusion is unfounded. What
the Illinois court retained was "jurisdiction x x x for the purpose of enforcing
all and sundry the various provisions of [its] Judgment for Dissolution."11
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 beyond the zone of the Illinois court’s so-called
"retained jurisdiction."
Petitioner’s Suit Lacks Cause of Action

Page 24 of 26
The foregoing notwithstanding, the trial court cannot enforce the Agreement
which is contrary to law.
In this jurisdiction, parties to a contract are free to stipulate the terms of
agreement subject to the minimum ban on stipulations contrary to law,
morals, good customs, public order, or public policy.12 Otherwise, the
contract is denied legal existence, deemed "inexistent and void from the
beginning."13 For lack of relevant stipulation in the Agreement, these and
other ancillary Philippine substantive law serve as default parameters to test
the validity of the Agreement’s joint child custody stipulations.14
At the time the parties executed the Agreement on 28 January 2002, two
facts are undisputed: (1) Stephanie was under seven years old (having
been born on 21 September 1995); and (2) petitioner and respondent were
no longer married under the laws of the United States because of the
divorce decree. The relevant Philippine law on child custody for spouses
separated in fact or in law15 (under the second paragraph of Article 213 of
the Family Code) is also undisputed: "no child under seven years of age
shall be separated from the mother x x x."16 (This statutory awarding of
sole parental custody17 to the mother is mandatory,18 grounded on sound
policy consideration,19 subject only to a narrow exception not alleged to
obtain here.20 ) Clearly then, the Agreement’s object to establish a post-
divorce joint custody regime between respondent and petitioner over their
child under seven years old contravenes Philippine law.
The Agreement is not 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 be valid if the spouses have not divorced
or separated because the law provides for joint parental authority when
spouses live together.21 However, upon separation of the spouses, the
mother takes sole custody under the law if the child is below seven years
old and any agreement to the contrary is void. Thus, the law suspends the
joint custody regime for (1) children under seven of (2) separated or
divorced spouses. Simply put, for a child within this age bracket (and for
commonsensical reasons), the law decides for the separated or divorced
parents how best to take care of the child and that is to give custody to the
separated mother. Indeed, the separated parents cannot contract away the
provision in the Family Code on the maternal custody of children below
seven years anymore than they can privately agree that a mother who is
unemployed, immoral, habitually drunk, drug addict, insane or afflicted with
a communicable disease will have sole custody of a child under seven as
these are reasons deemed compelling to preclude the application of the
exclusive maternal custody regime under the second paragraph of Article
213.22
It will not do to argue that the second paragraph of Article 213 of the Family
Code applies only to judicial custodial agreements based on its text that "No
child under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise." To limit this
provision’s enforceability to court sanctioned agreements while placing
private agreements beyond its reach is to sanction a double standard in
custody regulation of children under seven years old of separated parents.
This effectively empowers separated parents, by the simple expedient of
avoiding the courts, to subvert a legislative policy vesting to the separated
mother sole custody of her children under seven years of age "to avoid a
tragedy where a mother has seen her baby torn away from her."23 This
ignores the legislative basis that "[n]o man can sound the deep sorrows of a
mother who is deprived of her child of tender age."24
It could very well be that Article 213’s bias favoring one separated parent
(mother) over the other (father) encourages paternal neglect, presumes
incapacity for joint parental custody, robs the parents of custodial options,
or hijacks decision-making between the separated parents.25 However,
these are objections which question the law’s wisdom not its validity or
uniform enforceability. The forum to air and remedy these grievances is the
legislature, not this Court. At any rate, the rule’s seeming harshness or
undesirability is tempered by ancillary agreements the separated parents
may wish to enter such as granting the father visitation and other privileges.
These arrangements are not inconsistent with the regime of sole maternal
custody under the second paragraph of Article 213 which merely grants to
the mother final authority on the care and custody of the minor under seven
years of age, in case of disagreements.1avvphi1
Further, the imposed custodial regime under the second paragraph of
Article 213 is limited in duration, lasting only until the child’s seventh year.
From the eighth 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. Lastly, even supposing that
petitioner and respondent are not barred from entering into the Agreement
for the joint custody of Stephanie, respondent repudiated the Agreement by
asserting sole custody over Stephanie. Respondent’s act effectively brought
the parties back to ambit of the default custodial regime in the second
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
paragraph of Article 213 of the Family Code vesting on respondent sole
custody of Stephanie.
Nor can petitioner rely on the divorce decree’s alleged invalidity - not
because the Illinois court lacked jurisdiction or that the divorce decree
violated Illinois law, but because the divorce was obtained by his Filipino
spouse26 - to support the Agreement’s enforceability. The argument that
foreigners in this jurisdiction are not bound by foreign divorce decrees is
hardly novel. Van Dorn v. Romillo27 settled the matter by holding that an
alien spouse of a Filipino is bound by a divorce decree obtained abroad.28
There, we dismissed the alien divorcee’s Philippine suit for accounting of
alleged post-divorce conjugal property and rejected his submission that the
foreign divorce (obtained by the Filipino spouse) is not valid in this
jurisdiction in this wise:
There can be no question as to the validity of that Nevada divorce in any of
the States of the United States. The decree is binding on private respondent
as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the
same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the
Civil Code, only Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary to our concept of
public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid
according to their national law. In this case, the divorce in Nevada released
private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage.
xxxx
Thus, pursuant to his national law, private respondent is no longer the
husband of petitioner. He would have no standing to sue in the case below
as petitioner’s husband entitled to exercise control over conjugal assets. As
he is bound by the Decision of his own country’s Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate,
he is estopped by his own representation before said Court from asserting
his right over the alleged conjugal property. (Emphasis supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal
complaints for adultery filed by the alien divorcee (who obtained the foreign
divorce decree) against his former Filipino spouse because he no longer
qualified as "offended spouse" entitled to file the complaints under
Philippine procedural rules. Thus, it should be clear by now that a 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.
The Facts of the Case and Nature of Proceeding
Justify Remand
Instead of ordering the dismissal of petitioner’s suit, the logical end to its
lack of cause of action, we remand the case for the trial court to settle the
question of Stephanie’s custody. Stephanie is now nearly 15 years old, thus
removing the case outside of the ambit of the mandatory maternal custody
regime under Article 213 and bringing it within coverage of the default
standard on child custody proceedings – the best interest of the child.30 As
the question of custody is already before the trial court and the child’s
parents, by executing the Agreement, initially showed inclination to share
custody, it is in the interest of swift and efficient rendition of justice to allow
the parties to take advantage of the court’s jurisdiction, submit evidence on
the custodial arrangement best serving Stephanie’s interest, and let the trial
court render judgment. This disposition is consistent with the settled
doctrine that in child custody proceedings, equity may be invoked to serve
the child’s best interest.31
WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June
2005 of the Regional Trial Court of Makati City, Branch 60. The case is
REMANDED for further proceedings consistent with this ruling.
SO ORDERED.
FOOTNOTES
5 Under Article 15 of the Civil Code which provides: "Laws relating to family
rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad."
6 This provides: "No compromise upon the following questions shall be
valid: x x x (5) The jurisdiction of courts[.]"

Page 25 of 26
7 The trial court held (Records, pp. 157-158):
[H]aving expressly recognized the validity of the Illinois Court’s judgment
[petitioner] is bound by its provisions including the provision that the Court
would maintain sole jurisdiction to implement and enforce the provisions of
the said judgment which necessarily included guidelines for the child’s
custody.
[Petitioner] being admittedly an American, following the nationality rule
which Philippine civil laws adhere to, the Judgment of the Illinois Court
would be binding upon him since the judicial disposition refers to matters of
status or legal capacity of a person.
xxxx
Moreover, this Court cannot act upon [petitioner’s] prayer to enforce the
terms of the said Compromise Agreement the said agreement being invalid
and therefore, void, precisely because it seeks to transfer jurisdiction over
the issue of child custody from the Illinois Court to this Court by agreement
of the parties, when the previous Court had already effectively asserted its
authority to act upon all matters relating to the said issue.
In this regard, Art. 2035 of the Civil Code expressly states that no
compromise upon the questions of civil status of persons, validity of
marriage, or legal separation, future support, jurisdiction of courts and future
legitimate shall be valid.
8 As a corollary claim, petitioner submits that the stipulation in the
Agreement "vesting" exclusive jurisdiction to Philippine courts over conflicts
arising from the Agreement, even if void for being contrary to Article 2035,
paragraph 5 of the Civil Code, is severable from and does not affect the
validity of the other terms of the Agreement on joint custody.
9 Section 19, paragraph 1, Batas Pambansa Blg. 129, as amended by
Republic Act No. 7691, provides: "Jurisdiction in civil cases.- Regional Trial
Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in
which the subject of the litigation is incapable of pecuniary estimation; x x x
x"
12 Article 1306 of the Civil Code provides: "The contracting parties may
establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy."
13 Article 1409, paragraph 1 of the Civil Code provides: "The following
contracts are inexistent and void from the beginning: (1) Those whose
cause, object or purpose is contrary to law, morals, good customs, public
order or public policy; x x x x"
14 It can be inferred from the terms of the Agreement that the parties
intended to be bound by Philippine law on its intrinsic validity (this is
evident, for instance, from the stipulation selecting Philippine courts as
exclusive forum to settle "any legal issue or dispute that may arise from the
provisions of [the] Agreement and its interpretation x x x" (Records, p. 19;
emphasis supplied). At any rate, Philippine law has the most substantial
connection to the contract, considering its object (custody of a Filipino-
American child), subject (Filipino-American child under seven years of age,
born of a Filipino mother, both of whom reside in the country) and parties
(Filipina mother and alien father).
15 Including those marriages whose vinculum has been severed (see
Sempio-Dy, Handbook on the Family Code of the Philippines 67-68 [1988]).
16 The provision 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, especially the
choice of the child over seven years of age, unless the parent chosen is
unfit.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise." (Emphasis
supplied)
17 Gamboa-Hirsch v. Court of Appeals (Res.), G.R. No. 174485, 11 July
2007, 527 SCRA 320 (reversing the Court of Appeals’ ruling mandating joint
custody and awarding sole custody to the mother).
18 Perez v. Court of Appeals, 325 Phil. 1014 (1996). For children over
seven, custody decisions are guided by the standard of "best interest of the
child."
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
19 Our discussion in Pablo-Gualberto v. Gualberto V, G.R. No. 154994, 28
June 2005, 461 SCRA 450, 471-472, on the statutory genealogy and policy
grounding of the second paragraph of Article 213 is enlightening:
[A]rticle 213 takes its bearing from Article 363 of the Civil Code, which
reads:
Art. 363. In all questions on the care, custody, education and property of
children, the 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.
The general rule that children under seven years of age shall not be
separated from their mother finds its raison d’etre in the basic need of minor
children for their mother’s loving care. In explaining the rationale for Article
363 of the Civil Code, the Code Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for compelling reasons for the good
of the child: those cases must indeed be rare, if the mother’s heart is not to
be unduly hurt. If she has erred, as in cases of adultery, the penalty of
imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect
upon the baby who is as yet unable to understand the situation. (Report of
the Code Commission, p. 12)
20 Sole maternal custody is denied only for "compelling reasons" such as
"neglect, abandonment, unemployment, immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity or affliction with a
communicable disease" (Id. at 476; internal citation omitted).
25 This line of argument can be subsumed under the rubric of "unfair state
intervention" but this complaint can very well be leveled against the entire
field of family law where the state injects itself on a host of areas impinging
on the decision-making capacity and autonomy of individuals ranging from
the intensely personal (e.g. who can marry [Article 5, Family Code], where
to marry [Article 5, Family Code], who can celebrate the marriage [Article 5,
Family Code], and how to relate to one’s spouse [Articles 68-72]) to
proprietary (e.g. Articles 74-125, Family Code, on property relations of
spouses and Articles 194-208, Family Code, on support) to familial (e.g.
Articles 209-233, Family Code, on parental authority).1avvph!1
26 Petitioner hooks his argument on Gonzales v. Gonzales (58 Phil. 67
[1933]), Arca v. Javier (95 Phil. 579 [1954]) and Tenchavez v. Escaño (122
Phil. 752 [1965]). These cases, involving Filipino spouses, merely applied
the "nationality rule" (now embodied in Article 15 of the Civil Code) to reject
validating foreign divorce decrees obtained by Filipino spouses to
circumvent the no-divorce rule in this jurisdiction. They are no authority to
support petitioner’s submission that as to aliens, foreign divorce decrees
are void here.
28 Id. at 361-363.Van Dornspawned the second paragraph of Article 26
granting to Filipino spouses of aliens who obtain foreign divorce decrees the
right to remarry. (Republic v. Orbecido III, G.R. No. 154380, 5 October
2005, 472 SCRA 114).
31 Thus, in habeas corpus proceedings involving child custody, judicial
resolutions extend beyond the custodial right of persons exercising parental
authority over the child and reach issues on custodial arrangements serving
the child’s best interest (see Bagtas v. Santos, id., remanding a habeas
corpus petition to determine the fitness of the legal custodians
notwithstanding that the question of illegal withholding of custody has been
mooted by the transfer of the child’s physical custody to the habeas corpus
petitioners).
SEPARATE OPINION
ABAD, J.:
I agree with the reasons that the majority of the Court gave in support of the
decision, except one. I am uncomfortable with the proposition that an
agreement between the mother and the father on a joint custody over a
child below seven years of age is void for being contrary to law and public
policy. True, the law provides in Article 363 of the Civil Code that "No
mother shall be separated from her child under seven years of age, unless
the court finds compelling reasons for such measure." The State can think
up ways of protecting the child. But the 1987 Constitution acknowledges in
Article II, Section 12, the natural and primary right and duty of parents to
nurture their children and that the State must support them in this respect.1

Page 26 of 26
I submit that, in the matter of child custody, the mutual will of the child’s
parents takes precedence in the absence of circumstances that justify
recourse to the law. The law becomes relevant, only as a default, if a
separated couple cannot agree on the custody of their child. The law should
not supplant parental discretion or unnecessarily infringe on parental
authority.
Parents have a natural and fundamental right to autonomy in the care,
custody, and upbringing of their children. The Family Code recognizes this
in Article 209:
Art. 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 them for civic
consciousness and efficiency and the development of their moral, mental
and physical character and well‑being. (n)
The State ought not to interfere with the right of parents to bring up their
child unless its exercise causes potential harm to him. The State steps in,
through the law, only if there are compelling reasons to do so. State
intrusion is uncalled for where the welfare of a child is not jeopardized.
Regardless of marital circumstances, the mother and the father are
presumed to be fit and competent to act in the best interest of their child.
They can agree to share parental authority or, if you will, parental custody
even as they decide to live under separate roofs. In a voluntary joint
custody the mother might want to keep the child in her home during
schooldays but allow the father to have him on weekends. And they could
agree on some device for arriving at a consensus on where the child will
study and how his spiritual needs are to be attended to.
The law does not take away from a separating couple the authority and
competence to determine what is best for their child. If they resolve on their
own that shared parental custody is in their child’s best interest, then the
law and the courts have no business vetoing their decision. The parents
enjoy a primary right to make such decision. I cannot concede that, where
the child is below seven years of age, any agreement that diminishes the
mother’s absolute custody over him is void.
The second paragraph of Article 213 of the Family Code should not be read
as prohibiting separated couples from agreeing to a custody arrangement,
other than sole maternal custody, for their child of tender age. The statutory
preference for the mother’s custody comes into play only when courts are
compelled to resolve custody fights between separated parents. Where the
parents settle the matter out of court by mutual agreement, the statutory
preference reserved to the mother should not apply.
A reading of the entire text of Article 213 shows that the second paragraph
applies only to custody disputes that have reached the courtroom. Thus:
Article 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise.
It is unmistakable that the legislative policy is to vest the separated mother
with physical custody of the child under seven years old, in cases where the
courts are called upon to designate a parent for the exercise of parental
authority. The second sentence of the first paragraph and the second
paragraph itself merely qualify the general rule expressed in the first
sentence that "parental authority shall be exercised by the parent
designated by the Court," in case of parental separation.
In choosing the parent who will exercise parental authority, the court must
take into account all relevant considerations. One of these is the child’s age,
as the court is directed to give due regard to the child’s choice, if the child is
more than seven years of age. If the child, however, is below seven years of
age, the court cannot separate the child from the mother, except for
compelling reasons. This is the import of the entire provision.
Thus, 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 agreements are generally favored as it can only
work for the best interest of the child.
It is not logical to say that the Court would be subverting the legislative
policy of avoiding "a tragedy where a mother has seen her baby torn away
Persons and Family Relations Jurisprudence/full text
Family Code Art 209-227 Parental Authority
from her" if separated parents are allowed to enter into a joint custody
agreement. It can hardly be said that a child is being "torn away" from the
mother, if the mother sees the wisdom and benefit of sharing custody of the
child with the father. The voluntary nature of the agreement negates any
"deep sorrow" or sense of deprivation that the mother may experience on
account of her separation from the child.
Consequently, if separated parents mutually stipulate to uphold some form
of joint authority over their children of tender age, it cannot in any way be
regarded as illegal or contrary to public policy. Joint parental authority and
custody is the norm and should be viewed as the more desirable custody
arrangement. It encourages continuing contact with and involvement of both
parents in the lives of their children. It can only redound to the minor’s
greater well-being and should thus be favored.
To declare that a joint custody agreement over minors of tender age
contravenes Philippine laws will only discourage separating couples from
sharing parental duties and responsibilities. It will render shared parenthood
illegal and unduly promote paternal alienation. It also presumes that
separated parents cannot cooperate and compromise for the welfare of
their children. It constitutes undue interference in the parents’ intrinsic right
to direct their relations with their child.
A joint custody agreement can of course never be regarded as permanent
and unbending. The situations of the mother or the father and even of the
child can change and render performance of such agreement no longer in
the latter’s best interest. If the parents disagree on what they think is best
for the child, recourse to the Court may be inevitable. But I suggest that the
parent who wants the joint custody agreement changed or set aside bears
the burden of showing to the court the new situations of the parties and how
such arrangement have become unfavorable or detrimental to the child
under the circumstances. This is a consequence of the presumption that
contracts that are valid remain valid unless shown otherwise.
Here, the agreement between petitioner Herald and his estranged wife
providing for joint custody of their then six-year-old child is a valid exercise
of parental discretion and authority. It is independent of the foreign divorce
decree and may be enforced or repudiated in this jurisdiction, since its
object is the custody of a Filipino-American minor residing in the
Philippines. Although Herald’s complaint before the trial court appears to be
one for specific performance, it is, at heart, an action for custody and
enforcement of parental rights. Being so, the Regional Trial Courts have
exclusive original jurisdiction over the action.
I concur in the decision subject to my above reservations.
ROBERTO A. ABAD
Associate Justice
Footnotes
1 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. It
shall equally protect the life of the mother and the life of the unborn from
conception. 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.