Buenaventura VS.

CA
G.R. Nos. 127358 and G.R. Nos. 127449
March 31, 2005

Facts: Noel Buenaventura filed a position for the declaration of nullity of marriage on the
ground that both he and his wife were psychologically incapacitated.
The RTC in its decision, declared the marriage entered into between petitioner and respondent
null and violation ordered the liquidation of the assets of the conjugal partnership property;
ordered petitioner a regular support in favor of his son in the amount of 15,000 monthly, subject
to modification as the necessity arises, and awarded the care and custody of the minor to his
mother.
Petitioner appealed before the CA. While the appeal was pending, the CA, upon respondents
motion issued a resolution increasing the support pendants like to P20, 000.
The CA dismissal petitioner appeal for lack of merit and affirmed in to the RTC decision.
Petitioner motion for reconsideration was denied, hence this petition.

Issue: Whether or not co-ownership is applicable to valid marriage.

Held: Since the present case does not involve the annulment of a bigamous marriage, the
provisions of article 50 in relation to articles 41, 42 and 43 of the Family Code, providing for the
dissolution of the absolute community or conjugal partnership of gains, as the case maybe, do
not apply. Rather the general rule applies, which is in case a marriage is declared void ab initio,
the property regime applicable to be liquidated, partitioned and distributed is that of equal
co-ownership.
Since the properties ordered to be distributed by the court a quo were found, both by the RTC
and the CA, to have been acquired during the union of the parties, the same would be covered
by the co-ownership. No fruits of a separate property of one of the parties appear to have been
included or involved in said distribution.

Dela Cruz vs Gracia

G.R. No. 177728, July 31, 2009

FACTS: Jenie was denied the registration of her child's birth because the document attached to
the Affidavit to use the Surname of the Father (AUSF) entitled "Autobiography," did not include
the signature of the deceased father, and because he was born out of wedlock and the father
unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to
the child.

Jenie and the child promptly filed a complaint for injunction/registration of name against Gracia.
The trial court held that even if Dominique, the father, was the author of the unsigned
handwritten Autobiography, the same does not contain any express recognition of paternity.

ISSUE: Whether or not the unsigned handwritten instrument of the deceased father of minor
Christian can be considered as a recognition of paternity.

RULING: Yes.
Article 176 of the Family Code, as amended by RA 9255, permits an illegitimate child to use the
surname of his/her father if the latter had previously recognized him/her as his offspring
through an admission made in a pubic of private handwritten instrument.

Article 176, as amended, does not explicitly state that there must be a signature by the putative
father in the private handwritten instrument.
The following rules respecting the requirement of affixing the signature of the acknowledging
parent in any private handwritten instrument wherein an admission of filiation of a legitimate or
illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that the same must be
signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant and

competent evidence, it suffices that the claim of filiation therein be shown to have been made
and handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.

Categories: Persons and Family Relations

Ngo Te Vs Yu-Te
G.R. No. 161793

Facts: This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing
the August 5, 2003 Decision of the Court of Appeals (CA) in CAG. R. CV No. 71867. The petition
further assails the January 19, 2004 Resolution denying the motion for the reconsideration of
the challenged decision.
Sometimes in January 1996 Petitioner Edward Kenneth Ngo Te first met respondent Rowena
Ong Gutierrez YuTe in a gathering organized by the Filipino Chinese association in their college.
Sharing similar angst towards their families, the two understood one another and developed a
certain degree of closeness towards each other. In March 1996, or around three months after
their first meeting, Rowena asked Edward that they elope. At first, he refused, bickering that he
was young and jobless. Her persistence, however, made him relent. Thus, they left Manila and
sailed to Cebu that month he, providing their travel money and she, purchases the boat ticket.
However, Edwards P80,000.00 lasted for only a month. Their pension house accommodation
and daily sustenance fast depleted it. And they could not find a job. In April 1996, they decided
to go back to Manila. Rowena proceeded to her uncles house and Edward to his parents home.
As his family was abroad, and Rowena kept on telephoning him, threatening him that she
would commit suicide, Edward agreed to stay with Rowena at her uncles place. On April 23,
1996, Rowenas uncle brought the two to a court to get married. He was then 25 years old, and
she, 20. Rowena suggested that he should get his inheritance so that they could live on their
own. Edward talked to his father he told that he will disinherited and insisted that Edward must
go home. In June 1996, Edward was able to talk to Rowena. Unmoved by his persistence that
they should live with his parents, she said that it was better for them to live separate lives. They
then parted ways.
After almost four years, or on January 18, 2000, Edward filed a petition before the Regional
Trial Court (RTC) of Quezon City, Branch 106, for the annulment of his marriage to Rowena on
the basis of the latters psychological incapacity. The trial court, on July 30, 2001, rendered its
Decision declaring the marriage of the parties null and void on the ground that both parties
were psychologically incapacitated to comply with the essential marital obligations.

Issue: Whether or not the contracted marriage is void on the ground that both parties were
psychologically incapacitated

Held: The Psychological test result and evaluation result were both petitioner and respondent
are dubbed to be emotionally immature and recklessly impulsive upon swearing to their marital
vows as each of them was motivated by different notions on marriage. Although there is no
requirement that the person to be declared psychologically incapacitated be personally
examined by a physician, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity. Verily, the evidence must show a link, medical or the like, between
the acts that manifest psychological incapacity and the psychological disorder itself.
The petition for review on certiorari is GRANTED. The August 5, 2003 Decision and the January
19, 2004 Resolution of the Court of Appeals in CAG. R. CV No. 71867 are REVERSED and SET
ASIDE, and the Decision, dated July 30, 2001, REINSTATED.

Thornton v. Thornton,

FACTS: Petitioner was an American, respondent was a Filipino. They were married and had
one daughter. After 3 years, the woman grew restless and bored as a plain housewife and
wanted to return to her old job as GRO in a nightclub. One day, the woman left the family home
together with their daughter and told her servants that she was going to Basilan. The husband
filed a petition for habeas corpus in the designated Family Court in Makati City but was
dismissed because the child was in Basilan. When he went to Basilan, he didnt find them and
the barangay office issued a certification that respondent was no longer residing there.
Petitioner filed another petition for habeas corpus in CA which could issue a writ of habeas
corpus enforceable in the entire country. The petition was denied by CA on the ground that it
did not have jurisdiction over the case since RA 8369 (Family Courts Act of 1997) gave family
courts exclusive jurisdiction over petitions for habeas corpus, it impliedly repealed RA 7902 (An
Act Expanding the Jurisdiction of CA) and B.P 129 (The judiciary Reorganization Act of 1980.)

ISSUE: W/N CA has jurisdiction to issue writs of habeas corpus in cases involving custody of
minors in light of the provision in RA 8369 giving family courts exclusive jurisdiction over such
petitions.

HELD: Petition granted. CA should take cognizance of the case because nothing in RA 8369
revoked its jurisdiction to issue writs of habeas corpus involving custody of minors. The
reasoning of CA cant be affirmed because it will result to iniquitous, leaving petitioners without
legal course in obtaining custody. The minor could be transferred from one place to another
and habeas corpus case will be left without legal remedy since family courts take cognizance
only cases within their jurisdiction. Literal interpretation would render it meaningless, lead to
absurdity, injustice, and contradiction. The literal interpretation of exclusive will result in
grave injustice and negate the policy to protect the rights and promote welfare of children.

Mossesgeld vs CA

Case Doctrines: Illegitimate children shall use the surname of the mother , and this is rule
regardless of whether or not the father admits paternity.
Mandamus does not lie to compel the performance of an act prohibited by law

Facts: In 1989, Marissa Mossesgeld (single), gave birth to a baby boy. The father, one Eleazar
Calasan (married), signed the birth certificate of the child as the informant, indicating therein
the childs name as Jonathan Mossesgeld Calasan. Both Eleazar and Marissa accomplished the
dorsal side of the certificate of live birth stating that the information contained therein were
true and correct. In addition, Eleazar executed an affidavit admitting paternity of the child.

The person in charge at the hospital refused to place Calasan as the childs surname in the
certificate of live birth; hence, Eleazar himself submitted the certificate to the office of the local
civil registrar of Mandaluyong, for registration. The local civil registrar denied the registration
on the basis of Circular No. 4, dated October 11, 1988, of the Civil Registrar General, providing
that under Article 176 of the Family Code of the Philippines, illegitimate children born on or
after August 3, 1988, shall use the surname of their mother.
Eleazar filed with the Regional Trial Court of Pasig a petition for mandamus to compel the Local
Civil Registrar of Mandaluyong to register the certificate of live birth of his alleged illegitimate
son using his surname. The RTC denied the petition. Eleazar filed a motion for reconsideration.
Later, he filed a motion for leave to amend petition and to admit amended petition, substituting
the childs mother Marissa A. Mossesgeld as the petitioner. The MR was denied. The CA
affirmed the decision.

Issue: Does mandamus lie to compel the Local Civil Registrar to register a certificate of live
birth of an illegitimate child using the alleged fathers surname where the latter admitted
paternity?

Held: No. Article 176 of the Family Code of the Philippines provides that illegitimate children
shall use the surname and shall be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code.

This is the rule regardless of whether or not the father admits paternity. Consequently, the
Local Civil Registrar correctly refused to register the certificate of live birth of petitioners
illegitimate child using the surname of the alleged father, even with the latters consent. Of
course, the putative father, though a much married man, may legally adopt his own
illegitimate child. In case of adoption, the child shall be considered a legitimate child of the
adopter, entitled to use his surname.

Mandamus will not lie to compel the local civil registrar to register the certificate of live birth of
an illegitimate child using the fathers surname, even with the consent of the latter. Mandamus
does not lie to compel the performance of an act prohibited by law.

Republic vs. Toledano

Facts:On February 21, 1990, Spouses Alvin Clouse, a natural-born US Citizen and Evelyn
Clouse, a former Filipino who became a naturalized US citizen, filed a petition to adopt Solomon
Alcala, a minor who is Evelyn's youngest brother. The trial court granted the petition.Republic,
through the Office of the Solicitor General appealed contending that the lower court erred in
granting the petition for the spouses are not qualified to adopt under Philippine Law.

Issue:Whether or not Spouses Clouse are qualified to adopt

Held:Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as "The
Family Code of the Philippines", private respondents spouses Clouse are clearly barred from
adopting Solomon Joseph Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who
are not qualified to adopt, viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her
spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in accordance
with the rules on inter-country adoption as may be provided by law.

There can be no question that private respondent Alvin A. Clouse is not qualified to adopt
Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision. In the
first place, he is not a former Filipino citizen but anatural born citizen of the United States of
America. In the second place, Solomon Joseph Alcala is neither his relative by consanguinity
nor the legitimate child of his spouse. In the third place, when private respondents spouses
Clouse jointly filed the petition to adopt Solomon Joseph Alcala on February 21, 1990, private
respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost her Filipinocitizenship
when she was naturalized as a citizen of the United States in 1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to
paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipinocitizen. She sought to adopt
her younger brother. Unfortunately, the petition for adoption cannot be granted in her favor
alone without violating Article 185 which mandates a joint adoption by the husband and wife. It
reads:

Article 185. Husband and wife must jointly adopt, except in the following cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must be read
along together with Article 184.

Under the Family Code, joint adoption by husband and wife is mandatory. This is in consonance
with the concept of joint parental authority over the child, which is the ideal situation. As the
child to be adopted is elevated to the level of a legitimatechild, it is but natural to require the
spouses to adopt jointly. The rule also insuresharmony between the spouses.

Note:

The alien husband can now adopt under Sec. 7 (b) of R.A. No. 8552 (Domestic Adoption Act of
1998). The Supreme Court has held in several cases that when husband and wife are required
to adopt jointly, each one of them must be qualified to adopt in his or her own right. However,
the American husband must comply with the requirements of the law including the residency
requirement of 3 years. Otherwise, the adoption will not be allowed. (Desiderio P. Jurado, Civil
LawReviewer, 2006 ed., p. 232)

Republic Act No. 9255 February 24 2004

AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR

FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO.
209, OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of
the Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has been
expressly recognized by the father through the record of birth appearing in the civil register, or
when an admission in a public document or private handwritten instrument is made by the
father. Provided, the father has the right to institute an action before the regular courts to
prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of
one-half of the legitime of a legitimate child."
SECTION 2. Repealing Clause. All laws, presidential decrees, executive orders,
proclamations, rules and regulations, which are inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.

SECTION 3. Effectivity Clause. This Act shall take effect fifteen (15) days from its publication
in the Official Gazette or in two (2) newspapers of general circulation.
JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and
LORETA P. MIGUEL, respondents.
An illegitimate child is under the sole parental authority of the mother. In the exercise of
that authority, she is entitled to keep the child in her company. The Court will not deprive her of
custody, absent any imperative cause showing her unfitness to exercise such authority and
care.

The Case
The Petition for Review[1] before the Court seeks to reverse and set aside the August 28,
2002 Decision[2] and the December 11, 2002 Resolution[3] of the Court of Appeals in CA-GR SP
No. 69400.[4] The dispositive portion of the assailed Decision reads as follows:

WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have
custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Once the
said child is beyond ten (10) years of age, the Court allows him to choose which parent he
prefers to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil Procedure, as
amended. The petitioner, Joey D. Briones, shall help support the child, shall have visitorial
rights at least once a week, and may take the child out upon the written consent of the mother.

Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to be without
merit, the same is DENIED.[5]
The challenged Resolution denied reconsideration.

The Facts
The CA summarized the antecedents of the case in this wise:

On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against
respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor
child Michael Kevin Pineda.

On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the
mother of the minor, as one of the respondents.

A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents
to produce before this Court the living body of the minor Michael Kevin Pineda on March 21,
2002 at 2:00 oclock in the afternoon.

The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with
respondent Loreta P. Miguel. He was born in Japan on September 17, 1996 as evidenced by his
Birth Certificate. The respondent Loreta P. Miguel is now married to a Japanese national and is
presently residing in Japan.

The petitioner further alleges that on November 4, 1998 he caused the minor child to be
brought to the Philippines so that he could take care of him and send him to school. In the
school year 2000-2001, the petitioner enrolled him at the nursery school of Blessed Angels L.A.
School, Inc. in Caloocan City, where he finished the nursery course.

According to the petitioner, his parents, who are both retired and receiving monthly pensions,
assisted him in taking care of the child.
On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of
the petitioner in Caloocan City on the pretext that they were visiting the minor child and
requested that they be allowed to bring the said child for recreation at the SM Department store.
They promised him that they will bring him back in the afternoon, to which the petitioner
agreed. However, the respondents did not bring him back as promised by them.

The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City
but he was informed that the child is with the latters mother at Batal Heights, Santiago City.
When he went there, respondent Francisca P. Miguel told him that Michael Kevin Pineda is with
her daughter at Tuguegarao City.

He sought the assistance of the police and the Department of Social Welfare to locate his son
and to bring him back to him, but all his efforts were futile.

Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of
Caloocan City which was docketed as SPC No. 2711. However, the said case was
withdrawn ex-parte.

The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his
biological father and [as] he has demonstrated his capability to support and educate him.

On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002
Resolution of this Court.

In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that
he was the one who brought their child to the Philippines and stated that she was the one who
brought him here pursuant to their agreement.

Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents Maricel P.
Miguel and Francisca P. Miguel were the ones who took the child from the petitioner or the
latters parents. She averred that she was the one who took Michael Kevin Pineda from the
petitioner when she returned to the Philippines and that the latter readily agreed and
consented.

Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was
deported from Japan under the assumed name of Renato Juanzon when he was found to have
violated or committed an infraction of the laws of Japan. She further stated that since the time
the petitioner arrived in the Philippines, he has not been gainfully employed. The custody of the
child, according to respondent Loreta P. Miguel was entrusted to petitioners parents while they
were both working in Japan. She added that even before the custody of the child was given to
the petitioners parents, she has already been living separately from the petitioner in Japan
because the latter was allegedly maintaining an illicit affair with another woman until his
deportation.

She likewise stated in her Comment that her marriage to a Japanese national is for the purpose
of availing of the privileges of staying temporarily in Japan to pursue her work so she could be
able to send money regularly to her son in the Philippines. She further stated that she has no
intention of staying permanently in Japan as she has been returning to the Philippines every six
(6) months or as often as she could.

Respondent Loreta P. Miguel prays that the custody of her minor child be given to her and
invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the
Philippines.

Ruling of the Court of Appeals

 Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of
Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While acknowledging
that petitioner truly loved and cared for his son and considering the trouble and expense he had
spent in instituting the legal action for custody, it nevertheless found no compelling reason to
separate the minor from his mother. Petitioner, however, was granted visitorial rights.
Hence, this Petition.[6]
Issue
In his Memorandum, petitioner formulated the ultimate issue as follows: x x x
[w]hether or not [he], as the natural father, may be denied the custody and parental care of
his own child in the absence of the mother who is away.[7]

The Courts Ruling

The Petition has no merit. However, the assailed Decision should be modified in regard to
its erroneous application of Section 6 of Rule 99 of the Rules of Court.
Sole Issue
Who Should Have Custody of the Child?
Petitioner concedes that Respondent Loreta has preferential right over their minor child.
He insists, however, that custody should be awarded to him whenever she leaves for Japan and
during the period that she stays there. In other words, he wants joint custody over the minor,
such that the mother would have custody when she is in the country. But when she is abroad,
he -- as the biological father -- should have custody.
According to petitioner, Loreta is not always in the country. When she is abroad, she
cannot take care of their child. The undeniable fact, he adds, is that she lives most of the time
in Japan, as evidenced by her Special Power of Attorney dated May 28, 2001,[8] granting to her
sister temporary custody over the minor.
At present, however, the child is already with his mother in Japan, where he is
studying,[9] thus rendering petitioners argument moot. While the Petition for Habeas Corpus
was pending before the CA, petitioner filed on July 30, 2002, an Urgent Motion for a Hold
Departure Order,[10] alleging therein that respondents were preparing the travel papers of the
minor so the child could join his mother and her Japanese husband. The CA denied the Motion
for lack of merit.[11]
Having been born outside a valid marriage, the minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines [12] explicitly
provides that illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code. This is
the rule regardless of whether the father admits paternity. [13]
Previously, under the provisions of the Civil Code, illegitimate children were generally
classified into two groups: (1) natural, whether actual or by legal fiction; and (2) spurious,
whether incestuous, adulterous or illicit.[14] A natural child is one born outside a lawful wedlock
of parents who, at the time of conception of the child, were not disqualified by any impediment
to marry each other.[15] On the other hand, a spurious child is one born of parents who, at the
time of conception, were disqualified to marry each other on account of certain legal
impediments.[16]
Parental authority over recognized natural children who were under the age of majority
was vested in the father or the mother recognizing them. [17] If both acknowledge the child,
authority was to be exercised by the one to whom it was awarded by the courts; if it was
awarded to both, the rule as to legitimate children applied. In other words, in the latter case,
parental authority resided jointly in the father and the mother. [18]
 The fine distinctions among the various types of illegitimate children have been eliminated
in the Family Code.[19] Now, there are only two classes of children -- legitimate (and those who,
like the legally adopted, have the rights of legitimate children) and illegitimate. All children
conceived and born outside a valid marriage are illegitimate, unless the law itself gives them
legitimate status.[20]
Article 54 of the Code provides these exceptions: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage under Article 36 has become final
and executory shall be considered legitimate. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be legitimate.
Under Article 176 of the Family Code, all illegitimate children are generally placed under
one category, without any distinction between natural and spurious.[21]The concept of natural
child is important only for purposes of legitimation.[22] Without the subsequent marriage, a
natural child remains an illegitimate child.
Obviously, Michael is a natural (illegitimate, under the Family Code) child, as there is
nothing in the records showing that his parents were suffering from a legal impediment to
marry at the time of his birth. Both acknowledge that Michael is their son. As earlier explained
and pursuant to Article 176, parental authority over him resides in his mother, Respondent
Loreta, notwithstanding his fathers recognition of him.
David v. Court of Appeals[23] held that the recognition of an illegitimate child by the father
could be a ground for ordering the latter to give support to, but not custody of, the child. The
law explicitly confers to the mother sole parental authority over an illegitimate child; it follows
that only if she defaults can the father assume custody and authority over the minor. Of course,
the putative father may adopt his own illegitimate child; [24] in such a case, the child shall be
considered a legitimate child of the adoptive parent.[25]
There is thus no question that Respondent Loreta, being the mother of and having sole
parental authority over the minor, is entitled to have custody of him. [26]She has the right to
keep him in her company.[27] She cannot be deprived of that right,[28] and she may not even
renounce or transfer it except in the cases authorized by law.[29]
Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child
under seven years of age shall be separated from the mother, except when the court finds
cause to order otherwise.
Only the most compelling of reasons, such as the mothers unfitness to exercise sole
parental authority, shall justify her deprivation of parental authority and the award of custody
to someone else.[30] In the past, the following grounds have been considered ample
justification to deprive a mother of custody and parental authority: neglect or
abandonment,[31] unemployment, immorality,[32] habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable disease.
Bearing in mind the welfare and the best interest of the minor as the controlling
factor,[33] we hold that the CA did not err in awarding care, custody, and control of the child to
Respondent Loreta. There is no showing at all that she is unfit to take charge of him.
We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of
Appeals,[34] the Court sustained the visitorial right of an illegitimate father over his children in
view of the constitutionally protected inherent and natural right of parents over their
children.[35] Even when the parents are estranged and their affection for each other is lost, their
attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts
allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the
child.
However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This
provision contemplates a situation in which the parents of the minor are married to each other,
but are separated either by virtue of a decree of legal separation or because they are living
separately de facto. In the present case, it has been established that petitioner and Respondent
Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose
which parent to live with is deleted, but without disregarding the obligation of petitioner to
support the child.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with
the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age,
to choose which parent to live with is DELETED for lack of legal basis. Costs against petitioner.
SO ORDERED.
IRENE REYES
vs.
COURT OF APPEALS

This is a petition for certiorari to review the of the Court of Appeals Special Division of Five
dated October 7, 1974 in CA-G.R. No. L-44964-R, reversing the decision of the Court of First
Instance of Batangas Branch I, dated December 26, 1969 in Civil Case No. 1144 dismissing the
action for reconveyance.

On January 29, 1967, private respondents as plaintiffs a complaint in the Court of First Instance
of Batangas praying that the defendant Irene Reyes, alias Irene Ramero or Irene Delgado, be
ordered to execute a deed of reconveyance in favor of plaintiffs Placida Delgado, Domingo
Delgado, and Paula Delgado over four parcels of land located in Tayabas, Quezon, and one
parcel of land located in Pagbilao, Quezon, and another deed of reconveyance in favor of
plaintiff Maximina Delgado over three parcels of land located in Alitagtag, Batangas.

It was alleged in the complaint that the defendants thru abuse of confidence, fraud, deceit,
misrepresentation and other falsifications succeed in registering in the offices of the Register of
Deeds of Quezon and Batangas a document of self-adjudication (Exhibit "24"), wherein
defendant Irene Delgado alleged that she was the sole child of the deceased Francisco Delgado
and entitled to inherit the parcels of lands described in the complaint; that as a result thereof
Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 were cancelled and
new Transfer Certificates of Title were issued in the name of Irene Delgado; that defendant
Irene Delgado is not the illegitimate daughter of Francisco Delgado, who died without issue,
but is the legitimate daughter of Genoveva Ramero and Justino Reyes; that plaintiffs Placida
Delgado, Domingo Delgado and Paula Delgado, sisters and brother of the deceased Francisco
Delgado are the heirs entitled to inherit from Francisco Delgado; and that Paula, Placido and
Domingo Delgado defrayed the expenses of the last illness and the funeral expenses of
Francisco Delgado and for the purpose they borrowed the sum of P 7,000.00 from their niece,
plaintiff Maximina Delgado, and to pay Maximina Delgado they conveyed to her the three
parcels of land described in subparagraphs (f) to (g) of paragraph 9 of the complaint. They also
alleged that the defendant spouses Irene and Moises Villanueva borrowed from plaintiffs
common fund the sum of P23,000.00 which they used in the purchase of a parcel of land (pp.
1-14, Record on Appeal; p. 63, rec.).

On or about March 2, 1967, defendant Irene Delgado, one of the petitioners herein, filed an
answer to the complaint and set up the affirmative defense that she is the illegitimate daughter
of the defendant Genoveva Ramero and the deceased Francisco Delgado; that for several years
preceding the birth of Irene Delgado, her mother Genoveva Ramero had separated from her
lawful husband Justino Reyes and never reconciled since then; and that Irene was born during
the cohabitation of Francisco Delgado and Genoveva Ramero as common law husband and wife,
and since her birth, lived with Francisco Delgado and Genoveva Ramero, who reared and
treated her as their child, maintaining her and sending her through college. Defendants also
denied having contracted a debt of P 23,000.00 from plaintiffs, or that plaintiffs spent for the
last illness and funeral of Francisco Delgado. Irene Delgado likewise set up a counterclaim,
alleging that, as the illegitimate daughter of Francisco Delgado, she has the right to represent
her father to the inheritance left by her grandmother (pp. 15-43, Record on Appeal; p. 63,
rec.).

On March 16, 1967, the plaintiffs thru counsel filed an answer to the counterclaim denying that
the defendant Irene Delgado was the illegitimate child of Francisco Delgado, and hence has no
right to claim from the estate of Francisco's mother, Benigna Castillo, and that the properties
claimed by the defendant Irene Delgado no longer formed part of the estate of Benigna Castillo
as she had previously disposed of them during her lifetime (pp. 43-46, Record on Appeal; p. 63,
rec.).

On August 15, 1967, a pre-trial in Civil Case No. 1144 was conducted.

On March 25, 1969, the plaintiffs filed a motion to admit an amended answer to the
counterclaim posed by defendant, wherein the plaintiffs alleged that the counterclaim of the
defendant, in so far as it would have the effect of being an indirect action for acknowledgment,
has already prescribed (pp. 50-55, Record on Appeal; p. 63, rec.).

On April 14, 1969, the lower court admitted the amended answer to the counterclaim over the
objections of the defendant (pp. 56-61, Record on Appeal; p. 63, rec.).

After trial on the merits, the Court rendered its decision on December 26, 1969 dismissing the
action for reconveyance and declaring defendant Irene Delgado the lawful owner of the eight
parcels of land. The counterclaim of Irene Delgado was dismissed for insufficiency of evidence.

Both parties appealed to the Court of Appeals (now IAC), the plaintiffs with respect to their
complaint and the defendants with respect to their counterclaim.

The then Court of Appeals sitting as a Special Division of Five rendered its decision on October
7, 1974, the dispositive portion of which reads as follows:

Wherefore, the decision of the court a quo is hereby reversed. The deed of self-adjudication
executed by Irene Delgado is hereby declared null and void and set aside. The transfer
certificates of title issued in the name of Irene Delgado in lieu of Transfer Certificate of Title Nos.
9913, 10348, 14937, T-11747 and 13489 are hereby cancelled, and T.C.T. 9913, 10348, 14937,
T-11747 and 13489 are reinstated in the name of Francisco Delgado. Likewise, the extrajudicial
declaration executed by Irene Delgado adjudicating to herself the 3 parcels of land located in
Alitagtag, Batangas, with Tax Declaration Nos. 8625, 8626 and 8627 are declared null and void.
No costs (pp. 58-59, rec.).

The then Court of Appeals in arriving at this decision found that, although Irene Delgado was
the spurious daughter of Francisco Delgado, she nevertheless cannot inherit from the estate of
the deceased Francisco Delgado because she was not recognized either voluntarily or by court
action (pp. 52-53, rec.).

The titles to the questioned lot however cannot be executed in favor of the plaintiffs; because
in so doing it will be in effect a recognition by the court that the plaintiffs are the only heirs of
Francisco Delgado to the prejudice of other possible heirs or creditors of the deceased.

As to alleged loan contracted by Irene from the plaintiffs, the then Court of Appeals affirmed
the lower court's decision that it was without merit, because if it were true, the plaintiffs could
have demanded a receipt for such a big amount.

The counterclaim of Irene that she has the share to the inheritance of Benigna Castillo,
Francisco Delgado's mother, and her alleged share in the expenses for the sickness and funeral
of Francisco Delgado which was advanced by the plaintiffs, need not be ruled upon because of
the findings that Irene is not an heir of Francisco Delgado (pp. 57-58, rec.).

On December 2, 1974, defendants, petitioners herein, filed a petition to review the decision of
the Court of Appeals (pp. 2237, rec.).
On January 2, 1975, the plaintiffs, respondents herein, submitted their comment on the petition
for review filed by the petitioner (pp. 67-71, rec.).

On January 15, 1975, the petition for review filed by petitioners was denied in a resolution by
the First Division of the Supreme Court for lack of merit (p. 75, rec.).

On February 18, 1975, petitioners filed a motion for reconsideration (pp. 86-113, rec.).

On April 5, 1975, respondents filed their comments on the motion for reconsideration filed by
petitioners (pp. 130-134, rec.).

On April 23, 1975, petitioners filed their reply to respondents' comment (pp. 118-125, rec.).

On May 23, 1975, the Supreme Court reconsidered its resolution denying petitioners' motion for
reconsideration (p. 142, rec.).

In their petition, petitioners sought to reverse the decision of the Court of Appeals raising the
following arguments:

1. There are strong and cogent reasons why this Honorable Court must return to and even
enhance the doctrine in Zuzuarregui vs. Zuzuarregui, considering serious flaws in the reasoning
of the currently prevailing doctrine, so that as arguendo and pro hac vice that Irene was not
duly recognized or acknowledged as illegitimate child, she is nevertheless entitled to
successional rights as sole heir of the late Francisco Delgado, considering that her filiation as
illegitimate daughter of Francisco Delgado is undisputed and beyond question (p. 12,
Petitioner's Brief; p. 164, rec.).

2. Upon the other hand, this time assuming arguendo and pro hac vice that under the Civil
Code recognition of an 'other illegitimate' is a pre-requisite to enjoyment of rights, Irene
Delgado was legally acknowledged by her father Francisco Delgado, specially by his consent or
advice to her marriage with Moises Villanueva contrary to the erroneous conclusions of the
Court of Appeals (P. 39, Petitioner's Brief, p. 164, rec.).

The petition is without merit.

The doctrine that for an illegitimate child other than natural to inherit must be first recognized
voluntarily or by court action is well settled in Our jurisprudence. (Bercilles vs. GSIS, 128 SCRA
53 [1984]; Divinagracia vs. Rovira, 72 SCRA 307 [1976]; Clemea vs. Clemea, 24 SCRA 720
[1968]; Noble vs. Noble, 18 SCRA 1104 [1966]; Republic vs. Workmen's Compensation
Commission, 13 SCRA 272 [1969]; Paulino vs. Paulino, 3 SCRA 730 [1961]; Barles vs. Ponce
Enrile, 109 Phil. 522 [1960]).

There is no reason to overturn this doctrine and revert to what was enunciated in the case
of Zuzuarregui vs. Zuzuarregui (103 Phil. 346 [1958]); as suggested by herein petitioners in
their first assignment of errors.

It is the contention of the petitioners that the silence of the Civil Code as to the recognition of
illegitimate children other than natural, in contrast to natural children who are expressly
required to be recognized in order to inherit, only meant that illegitimate children need not be
recognized in order to inherit from his or her alleged parent (p. 13, Petitioner's Brief; p. 164,
rec.). Petitioners also raised the argument that under Article 287 of the New Civil Code which
reads: "Illegitimate children other than natural in accordance with Article 269 and other than
natural children by legal fiction are entitled to support and such successional rights as are
granted in this, code." The term "other illegitimate children" refers not only to those who are
not natural or merely adulterous or incestuous but also includes natural children who were not
acknowledged or recognized (p. 18, Petitioner's Brief; p. 164, rec.). In other words,
unrecognized natural children can inherit not the share of a natural child but the share of a
spurious child so long as his filiation shall be duly proved. So, in effect, illegitimate children
need only to prove his filiation to inherit and such does not place him in a more advantageous
position than natural children, as they are placed in the same situation.

WE do not find these arguments persuasive.

Though the Civil Code is silent with respect to spurious children as to their recognition, this
Court, in applying the rules of recognition, applicable to natural children, to said spurious
children, declared in Clemea vs. Clemea, supra, that:

The considerations of fairness and justice that underlie the time limit fixed in Article 285 of the
Civil Code for actions seeking compulsory acknowledgment of natural children are fully
applicable, if not more, to actions to investigate and declare the paternity of illegitimate
children that are not natural. The motive that led the codifiers to restrict the period for bringing
action for compulsory recognition of natural children were stated by this Court in Serrano vs.
Aragon, 22 Phil. 18, to be as follows:

... the writers of the code no doubt had in mind that there would arise instances where certain
illegitimate children, on account of the strong temptation due to the large estates left by
deceased persons, would attempt to establish that they were natural children of such persons
in order to get part of the property, and furthermore, they considered that it is nothing but just
and right that alleged parents should have a personal opportunity to be heard. It was for these
reasons and others equally as well founded that Article 137 was enacted (p. 724).

There are two (2) general classifications of illegitimate children or those who are conceived and
born out of wedlock. They may be either natural (actually or by fiction) or spurious (the
incestuous, adulterous or illicit). Natural children are defined as those born outside of wedlock
of parents, who at the time of conception of the former, were not disqualified by any
impediment to marry each other (Article 269, New Civil Code). On the other hand, spurious
children are those born of parents, who at the time of their conception, are disqualified to
marry each other on account of certain impediment. Because of this basic distinction between
these children, it is not legally possible to classify unrecognized natural children under the class
of spurious children. Besides, commentators construe the phrase "illegitimate children other
than natural" as excluding from the grants of rights under Article 287 of the New Civil Code
those children who are natural child proper by birth and who have not secured voluntary or
compulsory recognition (p. 276, An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1).
They fag within the scope of the definition of natural children enumerated in Article 269, New
Civil Code (p. 142, Civil Law Reviewer, D. Jurado, 1982 ed.). Lastly, to follow petitioners'
contention win not be in accordance with the consistent pronouncements of this Court. It is an
elementary and basic principle under the old and new Civil Code, that an unrecognized natural
child has no rights whatsoever against his parent or his estate. His rights spring not from the
filiation itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat, 21
SCRA 1479 [1967]; Mise vs. Rodriguez, 95 Phil. 396 [1954]; Magallanes vs. CA, 95 Phil. 797
[1954]; Candles vs. Ugarte, 91 Phil. 6 [1952]; Malonda vs. Malonda, 81 Phil. 149 [1948];
Buenaventura vs. Urbano, 5 Phil. 1 [1905]).

As to the second assignment of error raised by petitioners, We find that there was no sufficient
legal recognition of petitioner Irene Delgado by Francisco Delgado.
It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene
Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by
the treasurer of the municipality of Alitagtag Batangas (Exhibits "L" and "L-1 "). Another
certified copy of another birth certificate issued by the municipal treasurer and local civil
registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the name of the child
is Irene Ramero, and the name of the father is "Francisco" and the mother "Genoveva
Ramero." Any of these records of birth cannot be sufficient recognition under the law. The birth
certificate, to be sufficient recognition, must be signed by the father and mother jointly, or by
the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753;
Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth
certificate, the placing of his name by the mother, or doctor or registrar, is incompetent
evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Roces vs. Local Civil
Registrar of Manila, 102 Phil. 1050 [1958]). Since any of the certificates of birth presented were
not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of
Irene Delgado; nor can this birth certificate be taken as a recognition in a public instrument.
(Pareja vs. Pareja, 95 Phil. 167[1954]).

Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs.
GSIS, supra; People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [1968];
Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]). In the
case of Macadangdang vs. CA [100 SCRA 73 [1980]), this Court said that while baptismal
certificates may be considered public documents, they are evidence only to prove the
administration of the sacraments on the dates therein specified, but not the veracity of the
statements or declarations made therein with respect to his kinsfolk.

Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor the
written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be
taken as an authentic writing. An authentic writing does not have to be a public instrument; it is
sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent
(Madredejo vs. De Leon, supra) unless the whole instrument is in the handwriting of the
alleged parent and the facts mentioned therein correspond to actual and real facts (Varela vs.
Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her
written consent to the operation of her father, not being signed nor written in the handwriting
of Francisco Delgado, cannot be taken as an authentic writing to prove her recognition by her
alleged father.

The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva, wherein it was
stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry, and that
he was her father cannot be also taken as recognition in an authentic document because it was
not signed nor in the handwriting of Francisco Delgado It cannot also be taken as recognition in
a public instrument as held in the case of Lim vs. CA, (65 SCRA 161, 164 [1975]) wherein the
Court said.

According to Article 1216 of the Civil Code of 1889, Public documents 'are those authenticated
by a notary or by a competent public official, with the formalities required by law.' Thus, 'there
are two classes of public documents, those executed by private individuals which must be
authenticated by notaries, and those issued by competent public officials by reason of their
office.' "The public document pointed out in Article 131 as one of the means by which
recognition may be made belongs to the first class.

The marriage contract presented by Felisa Lim does not satisfy the requirements of solemnity
prescribed by article 131 of the Civil Code of 1889. Such contract is not a written act with the
intervention of a notary; it is not an instrument executed in due form before a notary and
certified by him. The marriage contract is a mere declaration by the contracting parties, in the
presence of the person solemnizing the marriage and of two witnesses of legal age, that they
take each other as husband and wife, signed by signature or mark by said contracting parties
and the said witnesses, and attested by the person solemnizing the marriage. The marriage
contract does not possess the requisites of a public document of recognition...

The family pictures (Exhibits "11" to "11-E") presented by Irene, showing Irene posing with
Francisco Delgado, cannot be a sufficient proof of recognition. In the case of Bercilles vs. GSIS,
supra, it was held that pictures do not constitute proof of filiation.

What Irene may have proved is that she had been in continuous possession of a status of an
illegitimate child who is not natural. But such fact alone without a valid recognition in a record
of birth, will statement before a court of record, or authentic writing does not make Irene a
recognized illegitimate child who is not natural. She nevertheless possesses the right to compel
judicial recognition and the action for this must be brought within the proper prescriptive period
(Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for
the. recognition of natural children may be brought only during the lifetime of the presumed
parents, except when the father or mother dies during the minority of the child, the action shall
be brought within four years from the age of majority, or if after the death of the father or of
the mother a document should appear of which nothing had been heard and in which either or
both parents recognize the child, the action shag be brought within four years from the finding
of the document." Since Irene was already of age (35 years old) when her alleged father died,
and she had not presented any discovered document wherein her presumed father recognized
her, the action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6
[1952]).

WE affirm the findings of the then Court of Appeals that Irene Reyes alias Irene Delgado is not
an heir of the late Francisco Delgado.

WHEREFORE, THE DECISION OF THE THEN COURT OF APPEALS IS HEREBY AFFIRMED IN

TOTO, WITH COSTS AGAINST PETITIONERS.

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 Antonettes
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 oclock 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.

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 minors 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 courts 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 minors 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.

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 courts 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. 9Under 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 respondents
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 childs welfare is the supreme consideration. The Child and
Youth Welfare Code12 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 respondents 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.
DAISIE T. DAVID, petitioner,
vs.
COURT OF APPEALS, RAMON R. VILLAR, respondents.

Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar, a

businessman in Angeles City. Private respondent is a married man and the father of four
children, all grown-up. After a while, the relationship between petitioner and private
respondent developed into an intimate one, as a result of which a son, Christopher J., was born
on March 9, 1985 to them. Christopher J. was followed by two more children, both girls, namely
Christine, born on June 9, 1986, and Cathy Mae on April 24, 1988.

The relationship became known to private respondent's wife when Daisie took Christopher J, to
Villar's house at Villa Teresa in Angeles City sometime in 1986 and introduced him to Villar's
legal wife.

After this, the children of Daisie were freely brought by Villar to his house as they were
eventually accepted by his legal family.

In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age, to go
with his family to Boracay. Daisie agreed, but after the trip, Villar refused to give back the child.
Villar said he had enrolled Christopher J. at the Holy Family Academy for the next school year.

On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J.

After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision, the
dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the petitioner and
against the respondent:

1. the rightful custody of the minor Christopher J. T. David is hereby given to the natural
mother, the herein petitioner Daisie T. David;

2. respondent is hereby ordered to give a temporary support of P3,000.00 a month to the

subject minor Christopher J. T. David, Christine David and Cathy Mae David to take effect upon
the finality of this decision; and

3. to pay the costs of this suit.

SO ORDERED.

On appeal, the Court of Appeals reversed, holding:

We agree with the respondent-appellant's view that this is not proper in a habeas corpus case.

Law and jurisprudence wherein the question of custody of a minor child may be decided in
a habeas corpus case contemplate a situation where the parents are married to each other but
are separated. This is so because under the Family Code, the father and mother have joint
parental authority over their legitimate children and in case of separation of the parents there is
need to determine rightful custody of their children. The same does not hold true in an
adulterous relationship, as in the case at bar, the child born out of such a relationship is under
the parental authority of the mother by express provision of the law. Hence, the question of
custody and support should be brought in a case singularly filed for the purpose. In point of fact,
this is more advisable in the case at bar because the trial court did not acquire jurisdiction over
the other minor children of the petitioner-appellee and respondent-appellant and, therefore,
cannot properly provide for their support.

Admittedly, respondent-appellant is financially well-off, he being a very rich businessman;

whereas, petitioner-appellee depends upon her sisters and parents for support. In fact, he
financially supported petitioner-appellee and her three minor children. It is, therefore, for the
best interest of Christopher J that he should temporarily remain under the custody of
respondent-appellant until the issue on custody and support shall have been determined in a
proper case.

WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW ONE ENTERED
dismissing the petition for habeas corpus in Special Proceeding No. 4489.

Daisie in turn filed this petition for review of the appellate court's decision.

Rule 102, 1 of the Rules of Court provides that "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."

It is indeed true, as the Court of Appeals observed, that the determination of the right to the
custody of minor children is relevant in cases where the parents, who are married to each other,
are for some reason separated from each other. It does not follow, however, that it cannot
arise in any other situation. For example, in the case of Salvaa v. Gaela,1 it was held that the
writ of habeas corpus is the proper remedy to enable parents to regain the custody of a minor
daughter even though the latter be in the custody of a third person of her free will because the
parents were compelling her to marry a man against her will.

In the case at bar, Christopher J. is an illegitimate child since at the time of his conception, his
father, private respondent Ramon R. Villar, was married to another woman other than the
child's mother. As such, pursuant to Art. 176 of the Family Code, Christopher J. is under the
parental authority of his mother, the herein petitioner, who, as a consequence of such authority,
is entitled to have custody of him.2 Since, admittedly, petitioner has been deprived of her
rightful custody of her child by private respondent, she is entitled to issuance of the writ
of habeas corpus.

Indeed, Rule 1021 1 makes no distinction between the case of a mother who is separated
from her husband and is entitled to the custody of her child and that of a mother of an
illegitimate child who, by law, is vested with sole parental authority, but is deprived of her
rightful custody of her child.

The fact that private respondent has recognized the minor child may be a ground for ordering
him to give support to the latter, but not for giving him custody of the child. Under Art. 213 of
the Family Code, "no child under seven years of age shall be separated from the mother unless
the court finds compelling reasons to order otherwise."3

Nor is the fact that private respondent is well-off a reason for depriving petitioner of the
custody of her children, especially considering that she has been able to rear and support them
on her own since they were born. Petitioner is a market vendor earning from P2,000 to P3,000
per month in 1993 when the RTC decision was rendered. She augments her income by working
as secretary at the Computer System Specialist, Inc. earning a monthly income of P4,500.00.
She has an arrangement with her employer so that she can personally attend to her children.
She works up to 8:00 o'clock in the evening to make up for time lost during the day. That she
receives help from her parents and sister for the support of the three children is not a point
against her. Cooperation, compassion, love and concern for every member of the family are
characteristics of the close family ties that bind the Filipino family and have made it what it is.

Daisie and her children may not be enjoying a life of affluence that private respondent promises
if the child lives with him. It is enough, however, that petitioner is earning a decent living and is
able to support her children according to her means.

The Regional Trial Court ordered private respondent to give temporary support to petitioner in
the amount of P3,000.00 a month, pending the filing of an action for support, after finding that
private respondent did not give any support to his three children by Daisie, except the meager
amount of P500.00 a week which he stopped giving them on June 23, 1992. He is a rich man
who professes love for his children. In fact he filed a motion for the execution of the decision of
the Court of Appeals, alleging that he had observed his son "to be physically weak and pale
because of malnutrition and deprivation of the luxury and amenities he was accustomed to
when in the former custody of the respondent." He prayed that he be given the custody of the
child so that he can provide him with the "proper care and education."

Although the question of support is proper in a proceeding for that purpose, the grant of
support in this case is justified by the fact that private respondent has expressed willingness to
support the minor child. The order for payment of allowance need not be conditioned on the
grant to him of custody of the child. Under Art. 204 of the Family Code, a person obliged to give
support can fulfill his obligation either by paying the allowance fixed by the court or by receiving
and maintaining in the family dwelling the person who is entitled to support unless, in the latter
case, there is "a moral or legal obstacle thereto."

In the case at bar, as has already been pointed out, Christopher J., being less than seven years
of age at least at the time the case was decided by the RTC, cannot be taken from the mother's
custody. Even now that the child is over seven years of age, the mother's custody over him will
have to be upheld because the child categorically expressed preference to live with his mother.
Under Art. 213 of the Family Code, courts must respect the "choice of the child over seven
years of age, unless the parent chosen is unfit" and here it has not been shown that the mother
is in any way unfit to have custody of her child. Indeed, if private respondent loves his child, he
should not condition the grant of support for him on the award of his custody to him (private
respondent).

WHEREFORE, the decision of the Court of Appeals is REVERSED and private respondent is
ORDERED to deliver the minor Christopher J. T. David to the custody of his mother, the herein
petitioner, and to give him temporary support in the amount of P3,000.00, pending the fixing of
the amount of support in an appropriate action.

SO ORDERED.