TITLE VIIISUPPORT

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a) Kinds of support:1. As to extent:a. Natural limited to what is absolutely indispensable for subsistence or the bare necessities of life; or,b. Civil that which accords with the social position or standing of the family.2. As to source:a. Legal support (family support) that which is required to be given by law.b. Voluntary support (patrimonial support) that which is provided for by the will of the man.c. Judicial support that which springs from decisions of tribunals, and may either be definite or provisional.Characteristics of support:a) It is personal;b) It is intransmissible;c) Not subject to attachment or execution;d) Never fixed; always subject to adjustment depending on the means of the giver and the needs of the recipient;e) Reciprocal on the part of those who are by law bound to support each other;f) Demandable from the time it is needed;g) Demandable even if the recipient is beyond the age of majority;h) Demandable even if the recipient is already married.Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or half-blood (291a) Art. 195 (1): Presupposes a valid marriage between the parties. If the wife is forced to leave the conjugal home by causes justifying her establishment of a separate domicile, she is entitled to separate maintenance from husband.

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (291a) Art. 197. In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n) Read with Art. 94. Properties answerable for support:a) The spouses property of the absolute community or the conjugal partnership. If there is no common property, the property of each spouse is answerable for the support of the other.b) Legitimate children from legitimate parents property of the absolute community or the conjugal partnership. If there is no common property, the separate properties of the parents are solidarily liable.c) Legitimate parents from legitimate children property of the children, under the present article. The parents are included in the term ascendants.d) Descendants, whether legitimate or illegitimate, from the legitimate parents of their parent (grandparents) - Separate property of the grandparents.e) Illegitimate children from parents Separate property of the parent.f) Brothers and sisters property of the obligor. In cases where the absolute community or the conjugal partnership property advances the support due from the separate property of a spouse, the amount advanced will be deducted from the share of such spouse in the liquidation of the common property.Art. 198. During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. (292a) Support pendente lite If there is conjugal property, it is mandatory that the spouse and the children be supported from such partnership property. If the action is for annulment of marriage, the marriage subsists until the decree of annulment has been rendered. Hence, there can be support between the spouses during the proceedings. If the action is for legal separation, while the plaintiff may ask for support pendente lite from the defendant, the latter cannot ask such support from the former, because the cause for legal separation committed by the defendant would be a ground for the termination of his or her right to support. After final judgment of annulment of marriage, the marriage bond ceases to exist, and the right of the spouses to mutual support also terminates. In legal separation, while the obligation of the spouses to support each other ceases, the court, in its discretion, may order the guilty spouse to support the innocent one.Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters. (294a) Under the Civil Code, the legitimate children come first in the order of persons obliged to give support. However, under the Family Code, parents have to ask from both the legitimate and illegitimate children for support, share and share alike.Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a) Among the recipients of support, law gives preference to children under the patria potestas over all relatives including the spouse. The law makes no distinction; the preference extends to the minor legitimate, legitimated, illegitimate and adopted, because they are all under parental authority. Paragraph 3: The order of payment established in Art. 199 shall be followed.Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 201 refers to civil support, the amount of which is based on two factors: (1) the means of the obligor, and (2) the necessities of the recipient, according to the social position of the family.Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a) The amount of support allowed by the court is not regarded as final and may be modified at any time for sufficient reasons. It may always be modified because of the varying conditions affecting the ability of the obligor to pay the amount fixed as support, and upon the ever changing needs of the recipient himself.Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) The right to demand support arises from imperative necessity, without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded. Judgment for support is immediately executory and it is not suspended while the case is on appeal (Gan v. Reyes). Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a) Two ways of complying with ones duty to support another:1. The obligor can give the obligee the allowance fixed; or,2. The obligor may receive and maintain the obligee in his home or family dwelling. The option granted by the law to the obligor to support the recipient in his own home is neither absolute nor inflexible. It has two requisites: 1) that the obligor has his own home or domicile; 2) that there exists no moral or legal reason which prevents the recipient from living in the obligors home or domicile. In the absence of either of these requisites, the option becomes impossible in fact or in law, and the obligation will have to be performed by paying pensions.Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a) To allow attachment or execution of the right to support would defeat the protection of which the law gives to the recipient against want and misery. General rule: Support cannot be subject to levy or attachment. Exceptions: 1) the excess in amount beyond that required for legal support, and 2) if it is contractual support.Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. (2164a) The term stranger in Art.206 refers to one who does not have any obligation to support the person given support. For one to recover under this article, it must be alleged and proved that:1. That support has been furnished a dependent of one bound to give support but fails to do so;2. That the support was furnished by a stranger;3. That the support was given without the knowledge of the person charged with the duty; and4. The support must not have been given without the expectation of recovering it.Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a) Under this Article, as distinguished from the preceding article, the obligor unjustly refuses to support the person entitled thereto; under Art. 206, there is a mere failure to give support. Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the parties. (n) The support contemplated by this article arises from the will of the obligor, whether expressed in a contract or a testament. The recipient and the giver may or may not be mutually obliged to support each other under Art. 195.De Asis VS. COURT OF APPEALS [303 SCRA 176]FACTS:The mother filed an action for recognition and support. The putative father denied paternity and instead filed a counterclaim. The parties agreed to dismiss the case provided the alleged father would no longer pursue his counterclaim. Subsequently, the mother filed another case against the alleged father again, for support and recognition. The putative father moved for the dismissal of the case on the ground of res judicata.

ISSUE:Whether or not an action for support and recognition can be dismissed on the ground of res judicata

HELD:Such manifestation does not bar the mother from filing a subsequent case for support on behalf of the same child against the same defendant because such manifestation and the agreement to dismiss the case on condition that the defendant will not pursue the counterclaim constitute a form of renunciation as they severed the vinculum that gives the child the right to claim support from the putative parent.

The right to receive support can neither be renounced nor transmitted to a third person. To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden.

An agreement for the dismissal of a complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise that cannot be countenanced. If paternity is at issue in a case, its existence or absence must be judicially established and cannot be left to the will or agreement of the parties.Gan vS. Reyes [382 scra 357 MAY 28, 2002]FACTS: Quite apprehensive that she would not be able to send to school her daughter Franchesca, Bernadette Pondevida wrote petitioner Augustus Gan demanding support for their love child. Petitioner denied paternity of the child. Thereafter, Bernadette instituted in behalf of her daughter a complaint against petitioner for support with prayer for support pendent lite. The trial court rendered a decision ordering petitioner to recognize Franchesca as his illegitimate child and support her. Petitioner moved for execution of the judgment which the trial court granted citing as reason therefore private respondent Franchescas immediate need for schooling. The sheriff levied upon a motor vehicle found within the premises of petitioners warehouse. Petitioner appealed the judgment to the CA. On June2000, petitioner filed a petition for certiorari and prohibition with the CA imputing grave abuse of discretion to the trial court for ordering the immediate execution of the judgment.

ISSUE: Whether or not the trial court erred in ordering the immediate execution of the judgment

HELD:Section 4, Rule 39 of the Rules of Court clearly states that, unless ordered by the trial court, judgments in actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule which provides that the taking of an appeal stays the execution of the judgment and that advance executions will only be allowed if there are urgent reasons therefore.

In all cases involving a child, his interest and welfare are always the paramount concerns. They may be instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of the trial court attains finality while time continues to slip away. In De Leon vs. Soriano, the SC held that the money and property should and must be given presently and without delay because if it had to wait the final judgment, the children may in the meantime have suffered because of lack of food or have missed and lost years in school because of funds. Petition is denied.

MANGONON VS. COURT OF APPEALS [494 SCRA 1]FACTS:On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and Rina, a Petition for Declaration of Legitimacy and Support, with application for support pendente lite. In said petition, it was alleged that on 16 February 1975, petitioner and respondent Federico Delgado were civilly married. At that time, petitioner was only 21 years old while respondent Federico was only 19 years old. As the marriage was solemnized without the required consent per Article 85 of the New Civil Code, it was annulled on 11 August 1975.

On 25 March 1976, after the annulment of their marriage, petitioner gave birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second husband Danny Mangonon, raised her twin daughters as private respondents had totally abandoned them. At the time of the institution of the petition, Rica and Rina were about to enter college in the U.S. where petitioner, together with her daughters and second husband, had moved to and finally settled in.

Petitioner likewise averred that demands were made upon Federico and the latters father, Francisco, for general support and for the payment of the required college education of Rica and Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters with respondent Federico and respondent Francisco, the latter being generally known to be financially well-off.9 These demands, however, remained unheeded. Considering the impending deadline for admission to college and the opening of classes, petitioner and her then minor children had no choice but to file the petition before the trial court.

Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico since the twin sisters were born within seven months from the date of the annulment of her marriage to respondent Federico. However, as respondent Federico failed to sign the birth certificates of Rica and Rina, it was imperative that their status as legitimate children of respondent Federico, and as granddaughters of respondent Francisco, be judicially declared pursuant to Article 173 of the Family Code. As legitimate children and grandchildren, Rica and Rina are entitled to general and educational support under Articles 174 and 195(b) in relation to Articles 194(1 and 2) and 199(c) of the Family Code.

Respondent Francisco stated that as the birth certificates of Rica and Rina do not bear the signature of respondent Federico, it is essential that their legitimacy be first established as "there is no basis to claim support until a final and executory judicial declaration has been made as to the civil status of the children." He, likewise, averred that the order of liability for support under Article 199 of the Family Code is not concurrent such that the obligation must be borne by those more closely related to the recipient. In this case, he maintained that responsibility should rest on the shoulders of petitioner and her second husband, the latter having voluntarily assumed the duties and responsibilities of a natural father. The trial court directed respondents to provide monthly support. CA affirms.

ISSUE:Whether or not the respondents are liable for support

HELD: Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be first imposed upon their parents. She contends, however, that the records of this case demonstrate her as well as respondent Federicos inability to give the support needed for Rica and Rinas college education. Consequently, the obligation to provide support devolves upon respondent Francisco being the grandfather of Rica and Rina. On the other hand, respondent Francisco argues that the trial court correctly declared that petitioner and respondent Federico should be the ones to provide the support needed by their twin daughters pursuant to Article 199 of the Family Code.

The pertinent provision of the Family Code on this subject states:

ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:(1) The spouse;(2) The descendants in the nearest degree;(3) The ascendants in the nearest degree; and(4) The brothers and sisters.

An eminent author on the subject explains that the obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the claimant prove that those who are called upon to provide support do not have the means to do so. In this case, both the trial court and the Court of Appeals held respondent Federico liable to provide monthly support pendente lite by taking into consideration his supposed income. The SC is, however, unconvinced as to the veracity of this ground relied upon by the trial court and the CA.

Respondent Franciscos assertion that petitioner had the means to support her daughters education is belied by the fact that petitioner was even forced by her financial status in the USA to secure the loan from the federal government. If petitioner were really making enough money abroad, she certainly would not have felt the need to apply for said loan. The fact that petitioner was compelled to take out a loan is enough indication that she did not have enough money to enable her to send her daughters to college by herself. Moreover, even Rica and Rina themselves were forced by the circumstances they found themselves in to secure loans under their names so as not to delay their entrance to college.

There being prima facie evidence showing that petitioner and respondent Federico are the parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support their childrens college education. In view however of their incapacities, the obligation to furnish said support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his granddaughters in default of their parents. It bears stressing that respondent Francisco is the majority stockholder and Chairman of the Board of Directors of Citadel Commercial, Inc. He is also the majority stockholder and Chairman of the Board of Directors of Citadel Shipping. It having been established that respondent Francisco has the financial means to support his granddaughters education, he, in lieu of petitioner and respondent Federico, should be held liable for support pendente lite.

Anent respondent Francisco and Federicos claim that they have the option under the law as to how they could perform their obligation to support Rica and Rina, respondent Francisco insists that Rica and Rina should move here to the Philippines to study in any of the local universities. After all, the quality of education here, according to him, is at par with that offered in the USA. The applicable provision of the Family Code on this subject provides:

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.

Under the abovecited provision, the obligor is given the choice as to how he could dispense his obligation to give support. Thus, he may give the determined amount of support to the claimant or he may allow the latter to stay in the family dwelling. The second option cannot be availed of in case there are circumstances, legal or moral, which should be considered.

In this case, the SC believes that respondent Francisco could not avail himself of the second option. From the records, prior to the commencement of this action, the relationship between respondent Francisco, on one hand, and petitioner and her twin daughters, on the other, was indeed quite pleasant. The correspondences exchanged among them expressed profound feelings of thoughtfulness and concern for one anothers well-being.

Finally, as to the amount of support pendente lite, the SC based on the provision of the law mandating the amount of support to be proportionate to the resources or means of the giver and to the necessities of the recipient. The SC held that respondent Francisco liable for half of the amount of school expenses incurred by Rica and Rina as support pendente lite. As established by petitioner, respondent Francisco has the financial resources to pay this amount given his various business endeavors.

The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters raised by respondent Francisco is best left for the resolution of the trial court. After all, in case it would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall then order the return of the amounts already paid with legal interest from the dates of actual payment.

LIM VS. LIM [604 SCRA 691]FACTS:In 1979, respondent Cheryl S. Lim married Edward Lim, son of petitioners. Cheryl bore Edward three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children resided at the house of petitioners in Forbes Park, Makati City, together with Edwards ailing grandmother, Chua Giak and her husband Mariano Lim. Edwards family business, which provided him with a monthly salary ofP6,000, shouldered the family expenses. Cheryl had no steady source of income.

On 14 October 1990,Cheryl abandoned the Forbes Park residence, bringing the children with her (then all minors),after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the trial court described a very compromising situation.Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional Trial Court of Makati City, Branch 140 (trial court) for support.The trial court ordered Edward to provide monthly support ofP6,000pendente lite.

ISSUE:Whether or not petitioners are concurrently liable with Edward to provide support to respondents

HELD:We rule in the affirmative. However, we modify the appealed judgment by limiting petitionersliability to the amount of monthly support needed by respondentsLester Edward, Candice Grace and Mariano III only.By statutoryand jurisprudential mandate,the liability of ascendants to provide legal support to their descendants is beyond cavil. Petitioners themselves admit as much they limit their petition to the narrow question ofwhentheir liability is triggered, notifthey are liable. Relying on provisionsfound in Title IX of the Civil Code, as amended, on Parental Authority, petitioners theorize that their liability is activated only upondefaultof parental authority, conceivably either by its terminationor suspension during the childrens minority. Because at the time respondents sued for support, Cheryl and Edward exercised parental authority over their children,petitioners submit that the obligation to support the lattersoffspring ends with them.Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope of familial obligation to give support. In the first place, the governing text are the relevant provisions in Title VIII of the Civil Code, as amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in that parental authority encompasses the obligation to provide legal support,they differ in other concerns including thedurationof the obligation and its concurrenceamong relatives of differing degrees.Thus, although the obligation to provide support arising from parental authority ends upon the emancipation of the child,the same obligation arising from spousal and general familial ties ideally lasts during the obligee's lifetime..Also, while parental authority under Title IX (and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to ascendantsnot only upon default of the parents but also for the latters inability to provide sufficient support. Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to respondents,P6,000 a month, is insufficient to meet respondentsbasic needs. This inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the paternal (petitioners) and maternallines, following the ordering in Article 199. To hold otherwise, and thus subscribe to petitioners theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of children because of parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void.However, petitioners partial concurrent obligation extends only to theirdescendantsas this word is commonly understood to refer to relatives, by blood of lower degree. As petitionersgrandchildren by blood, only respondentsLester Edward, Candice Grace and Mariano III belong to this category. Indeed, Cheryls right to receive support from the Lim family extends only to her husband Edward, arising from their marital bond. Unfortunately, Cheryls share from the amount of monthly support the trial court awarded cannot be determined from the records. Thus, we are constrained to remand the case to the trial court for this limited purpose. As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as amended, and pray that they be allowed to fulfill their obligation by maintaining respondents at petitionersMakati residence. The option is unavailable to petitioners.The application of Article 204 which provides thatThe person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support.The latter alternative cannot be availed of in case there is amoralorlegalobstacle thereto.is subject to its exception clause. Here, the persons entitled to receive support are petitionersgrandchildren and daughter-in-law. Granting petitioners the option in Article 204will secure to the grandchildren a well-provided future; however, it will also force Cheryl to return to the house which, for her, is the scene of her husbands infidelity. While not rising to the level of alegalobstacle, as indeed, Cheryls charge against Edward for concubinage did not prosper for insufficient evidence, her steadfast insistence on its occurrence amounts to amoralimpediment bringing the case within the ambit of the exception clause of Article 204, precluding its application.

TITLE IXPARENTAL AUTHORITYChapter 1. General Provisions

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)

DEFINITION: PARENTAL AUTHORITYParental authority, known in the Roman law as patria potestas, may be defined as the mass of rights and obligations which parents have in relation to the person and property of their children, until their majority age, and even after this under certain circumstances (Manresa).Characteristics of parental authority:1. It is a natural right and duty of the parents.2. It cannot be renounced, transferred, or waived except in the cases authorized by law.3. It is jointly exercised by the father and the mother.4. It is purely personal and cannot be exercised through agents.5. It is temporary and will end when the child is emancipated or can otherwise take care of himself and his property, or the parent is unable to properly exercise the authority.What parental authority includes under this article:1. The caring for and rearing of children for civic consciousness and efficiency, and2. The development of the moral, mental and physical character and well-being of said children.Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (313a) The right attached to parental authority is a purely personal one, and it is extinguished upon the death of the parent exercising it. Such authority cannot pass to the administrator of the estate of the deceased parent, as such administrator. Waiver of parental authority is allowed: 1. In case of adoption; 2. In case of guardianship; 3. In case of commitment of the child in an entity or institution engaged in child care or in a childrens home.

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. (311a) Stepparents cannot exercise parental authority, only the surviving spouse. An adopted child is under the parental authority of his adopter. Illegitimate children are under the parental authority of the mother.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. (n) 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. (n) In case of absence of either parent, parental authority shall be exercised by the parent present. In case of death of either parent, parental authority shall be exercised by the parent present. In case of remarriage of the surviving parent, still, parental authority is exercised by the surviving parent, unless the court appoints a guardian over the child. In case of legal separation, the custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, under Art.63. In case of separation in fact, the court shall award the care, custody and control of each child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over seven years of age, unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, poverty, contagious disease. No child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. For instances of these compelling reasons, read the case of Tonog v. CA. Is prostitution a valid ground for unfitness? According to Sempio-Diy, NO. According to Atty. Galas, YES. 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. (355a) Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. (315a) FILIAL PRIVILEGE RULE: This article confers a privilege upon descendants to refuse to testify against their parents or ascendants in a CRIMINAL CASE. EXCEPTIONS: 1) if the testimony is not against the parent or grandparent; 2) if the testimony is voluntary; or 3) if testimony is not used in a criminal case. The privilege does not extend to civil cases. The filial privilege rule is for the protection of the most sacred sentiments of the same family. The rule is applicable only against parents and grandparents. It does not apply to uncles, aunties, brothers or sisters. Chapter 2. Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a)

The inclusion of parents and the oldest brother or sister among those standing in locos parentis is in conformity with the customs of the Philippines. If several grandparents survive, the one designated by the court pursuant to Arts. 213 and 214 shall exercise substitute parental authority. Substitute parental authority cannot be concurrently exercised with parental authority but parental authority can be concurrently exercised with special parental authority.Art. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) Kinds of children who has no parental authority:1. foundling one whose parents are unknown (e.g. babies placed outside the gate of the house)2. abandoned one who has no parental care or whose parent or guardians have deserted him for at least 6 yrs; completely forsaken child 3. neglected those who receive inadequate care either by intention or omission or insufficient means4. abused those who suffer maltreatment whether physical or sexualArt. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a) SPECIAL PARENTAL AUTHORITY: Concurrent with the parental authority of the parents and rests on the theory that while the child is in the care and custody of the person or persons exercising special parental authority, the parents temporarily relinquish parental authority over the child to the latter. Who exercises special parental authority:1. The school, its administrators and teachers, or2. The individual, entity or institution engaged in child care. Special parental authority and responsibility apply to all authorized activities, whether inside or outside the premises of the school, entity or institution. Such authority and responsibility apply to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers. If a child commits acts which results to damages, the school and instructor will be solidarily liable (principal liability). Parents are just subsidiarily liable in case of insolvency.Art. 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n) Those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction or custody. The said liability is subject to the defense that the person exercising parental authority and responsibility exercised the proper diligence required by the particular circumstances. The diligence required is the exercise of a diligence of a good father of a family, unless a different degree of diligence is required. The defense of a special parent is that they exercised the diligence in ordinary transactions with the diligence of a good father of the family. As to parents and judicial guardians of the minor or those exercising substitute parental authority over said minor, they are subsidiarily liable for the aforesaid acts and omissions of the minor. Chapter 3.Effect of Parental Authority Upon the Persons of the Children 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. (316a)

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180(2)a and (4)a )

Parents are still liable for acts done by their child even if the latter be 18-21 yrs old, provided that the child is still living in their company. DEFENSES OF PARENTS: 1. Observance of diligence under the circumstances like the diligence of a good father of a family;2. The child is not under their parental authority; and3. The child does not live in their company.Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317) Although under Art. 220, the parents are the legal representatives of the children in court proceedings, this article provides for substitute representation when the interests of the child so require.

Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a)

Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency.

The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (391a)

The person exercising parental authority has the right to discipline the children under his authority. The discipline, however, must be reasonable and is intended for correction than for punishment. If a parent finds that the discipline imposed upon the child fails to correct him, this article provides for a civil remedy.

Chapter 4. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a) Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of the child, exceeds the limits of guardianship. The legal guardianship of the property of minor children by their parents is a natural and legal consequence of parental authority and of the presumption that no one can take care of such property with more zeal and affection than the parents. The purpose of the bond is to protect the childs property or income from possible abuse of administration or even disposition by the parents. The rules prescribed for parents do not apply to the following persons, to whom the ordinary rules on guardianship shall apply:1. A person exercising substitute parental authority;2. A guardian who is a non-relative of, or a stranger to, the child; or3. A parent who has remarried.Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. (321a, 323a)

The child owns all property acquired as earnings with his work or industry, or by onerous or lucrative title, although they may be under the legal guardianship of the parents. The parents have a limited usufruct over the property for the benefit of the children and the family. As for the fruits and income of the childs property, the parents may use them:1. Primarily, for the childs support and education; and2. Secondarily, for the collective daily needs of the family.Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime. (322a) When the child is given the management of any property belonging to the parents, a reasonable allowance or the whole products of the property will go to the child as compensation. The amount goes to him not as usufructory of the property but for his services as administrator. Chapter 5.Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a) Except in cases of emancipation by law and death of the child, there is no absolute termination of parental authority in the cases mentioned by these articles. Upon the death of the parents, while the child is still a minor, the grandparents, brothers or sisters, or a guardian may exercise substitute parental authority over the child. Upon the adoption of the child by another, the adopting parent will exercise parental authority. Parental authority in these cases terminates permanently because there is no possibility of its revival.Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) In the above cases, parental authority may be revived by final judgment:1. Rescinding the adoption of the child;2. Terminating the judicial guardianship over the child;3. Restoring parental authority to the parent who has returned home after abandoning the child or who has been divested of parental authority for any other reason; or4. Restoring parental authority to an absent parent who has returned or a formerly incapacitated parent who has regained his or her capacity.Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a)

There is no need of a court order reinstating the parental authority of the parent over the child because such authority is automatically revived.

Art. 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same: (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or (4) Subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances.

The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (33a)

Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n)

The causes enumerated by the FC for termination or suspension of parental authority, are not exclusive. As long as the court finds justifiable cause for depriving a person of parental authority, permanently or temporarily, it may decree such termination or suspension. For instance, a child is maltreated by a stepmother, who is or cannot be stopped by the father who has remarried, but who himself does not maltreat the child; the court could appoint a guardian for such child. Art. 232 Sexual abuse of the child and the parent acting as a pimp are grounds for permanently depriving a parent of parental authority.

Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (n)

This article applies to teachers. Teachers, though exercising substitute parental authority, are prohibited to spank, pinch or slap a pupil.Espiritu vS. COURT OF APPEALS [242 SCRA 362]Facts:Petitioner Reynaldo Espiritu and respondent Teresita Marauding met in Iligan City sometime in 1976. In 1977, Teresita left for Los Angeles to work as a nurse and was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent to Pittsburgh as liaison officer to the National Steel Corporation. It was then when they began to maintain a common law relationship of husband and wife which resulted to the birth of Rosalind. On October 7, 1987, while they were on a brief vacation in the Philippines, they got married and upon their return to the US, Reginald was born on January 12, 1988. The couple separated in 1990. Teresita left Reynaldo and the children and went back to California. Reynaldo brought the children home to the Philippines, but was sent back by his company to Pittsburgh to complete his assignment. He left the children with his sister and her family.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 and a year later drove across US to commence living with Reynaldo. After the separation, she went back to California and later decided to return to the Philippines. On December 8, 1992, she filed the petition for writ of habeas corpus against Reynaldo to gain custody over the children. The trial court dismissed the petition for habeas corpus suspending Teresitas authority over the children and declaring Reynaldo to have the sole parental authority over them. The CA reversed the decision giving custody to Teresita applying Art 363 of the Civil Code and Art 213 of the Family Code.

Issue: Between the father and mother, who is more suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood?

HELD:The task of choosing the parent to whom the custody shall be awarded is not a ministerial function to be determined by a simple determination of age of a minor child. The paramount criterion must always be the childs 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 ascertaining the best interest of the child, courts are mandated by the FC to take into account all relevant considerations. If a child is under seven years old, the law presumes that the mother is the best custodian. The presumption is strong but it is not conclusive and can be overcome by compelling reasons. If a child is over seven, his choice is paramount but 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.

Either parent, whether the father of 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.

The CA erred in mechanically treating the seven-year old limit as an arbitrary cut off period instead of scrutinizing the records to discover the choice of the children (who were already both over 7 at that time) and then verify whether the parent chosen is fit or unfit.

The argument that the 7-year age reference in law applies to the date when the petition for writ of habeas corpus is filed, not to the date when the decision is rendered, cannot be sustained. It 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. At the present time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.

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 and their clear choice is their father, but the illicit relationship or immoral activities of the mother had already caused emotional disturbances, at least in Rosalind as found by the expert witnesses. This is not to mention her conviction to the crime of bigamy which has become final.

Both children now over 7 years old, understand the difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is unfit person under Art. 213, FC. Moreover, the childrens clear choice is the father.

Petition is granted. The decision of the CA is reversed and set aside.Santos, Sr. vS. COURT OF APPEALS [242 SCRA 407]FACTS:Petitioner Leouel Santos, Sr., and Julia Badia was married in 1986. Their union begot one child Leouel, Jr. who was born on 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 Leopoldo and Ofelia Bedia. Petitioner and wife Julia agreed to place the boy in temporary custody of the latters parents. Respondent spouses Badia 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.

Julia left for the US in May 1988 to work. Private respondents claim that although abroad, Julia had been sending financial support to them for her son. On September 1990, petitioner visited the Bedia household. Private respondents contend that through deceit and false pretensions, petitioner abducted the boy. The spouses Bedia then filed a Petition for Care, Custody and Control of Minor Ward Leouel Santos, Jr. The trial court awarded custody of the child to spouses Bedia. CA affirmed the trial courts order. Petitioners motion for reconsideration was denied.

ISSUE: W/N CA erred in awarding custody of the boy to his grandparents and not to his father

HELD: Yes. The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latters needs. Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The law allows waiver of parental authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution. When a parent entrusts the custody of a minor to another, such as friends or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The law vests on the father and mother joint parental authority over the persons of their common children. In the absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent (Art 214, FC).

There is no evidence to show that petitioner is unsuitable to have custody of the boy. Private respondents demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. The latters wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner is no position to support the boy. His being a soldier is likewise no bar to allowing him custody over the boy. While his previous inattention is inexcusable and merits on the severest criticism, it cannot be construed as abandonment.

Petition is granted.

ESLAO VS. COURT OF APPEALS [226 SCRA 317]FACTS: After their marriage, spouses petitioner Maria Paz Cordero-Ouye and Reynaldo Eslao stayed with respondent Teresita Eslao, mother of the husband. Out of their marriage, two children, Leslie and Angelica, were begotten. In the meantime, Leslie was entrusted to the care and custody of petitioners mother in Pampanga , while Angelica stayed with her parents at respondents house. On August 1990, petitioners husband died. Petitioner intended to bring Angelica with her to Pampanga but the respondent reasoning out that her son just died and to assuage her grief therefore, she needed the company of the child to at least compensate for the loss of her late son.

Subsequently, petitioner got married to Dr. Ouye and thereafter migrated to San Francisco on January 1993. On June 1993, petitioner returned to the Philippines to be reunited with her children and bring them to US. Petitioner informed her desire to take custody of Angelica but respondent resisted explaining that the child was entrusted to her when she was ten days old and accused petitioner of having abandoned her child. The trial court rendered a decision in favor of petitioner. The decision was affirmed by CA.

ISSUE: Whether or not Teresita Eslao is entitled to take custody of Angelica

HELD: No. Citing Santos Sr., vs CA (242 SCRA 407), SC held that when Maria entrusted custody of her minor child to her mother-in-law, what she gave to the latter was merely temporary custody and 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 in cases of adoption, guardianship and surrender to a childrens home or an orphan institution which do not appear in the case at bar.It is a long accepted rule 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 public policy. The right is inherent one, which is not created by the state or decisions of the court, but derives from the nature of the parental relationship.Decision of the CA is affirmed. Petition is dismissed.

LAXAMANA VS. LAXAMANA [388 SCRA 296]FACTS:Reymond Laxamana and Ma. Lourdes Laxamana met sometime in 1983. Petitioner Reymond came from a well-to-do family, and was a graduate of law. Respondent works in a bank. They got married in June 1984. All went well until Reymond became a drug dependent. Despite several confinements, his drug dependence worsened and it became difficult for Lourdes and her children to live with him. They abandoned Reymond and transferred to the house of Lourdes relatives. Reymond filed a petition for habeas corpus praying for the custody of the children. The trial court granted custody to Lourdes while Reymond was granted visitation rights.

ISSUE:Whether or not the trial court considered the paramount interest and welfare of the children in awarding their custody to Lourdes

HELD: In controversies involving the care, custody and control of their minor children, the contending parents stand on equal standing before the court who shall make the selection according to the best interest of the child. The child if over 7 years old 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 chosen is unfit. In all cases, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources as well as social and moral situations of the opposing parents.

In the case at bar, the children were 14 and 15 years old at the time of the promulgation of the decision, yet the trial court did not ascertain their choice as to which parent they want to live with. The court a quo should have conducted a trial notwithstanding the agreement of the parties to submit the case for resolution on the basis of the psychiatric report. Thus, petitioner Reymond 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 Lourdes, 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 involves the family and the youth. While Reymond may have 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 Reymond is unfit to provide the children with adequate support, education, as well as moral and intellectual training and development.

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 parents to assume custody of their minor children.

GUALBERTO VS. GUALBERTO V [461 SCRA 451 June 28, 2005]FACTS:On March 12, 2002, Crisanto Rafaelito G. Gualberto V filed a petition for declaration of nullity of his marriage to Joycelyn D. Pablo Gualberto, with an ancillary prayer for custodypendente liteof their almost 4-year-old son, minor Rafaello, whom Joycelyn allegedly took away with her from the conjugal home and his school when she decided to abandon Crisanto sometime in early February 2002.On April 2, 2002, because Joycelyn allegedly failed to appear despite notice, Crisanto, a certain Col. Renato Santos, and Ms. Cherry Batistel, testified before the Judge; documentary evidence was also presented. On April 3, 2002, the Judge awarded custodypendente liteof the child to Crisanto. Renato Santos, President of United Security Logistic testified that he was commissioned by Crisanto to conduct surveillance on Joycelyn and came 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 fathers 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.ISSUES:(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?

HELD:When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often over the custody of their children. The Court is now tasked to settle the opposing claims of the parents for custodypendente liteof their child who is less than seven years old. 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 Codeprovides: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. Article 213 takes its bearing from Article 363 of the Civil Code, which reads:Art. 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount.No mother shall be separated from her child 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 itsraison detrein the basic need of minor children for their mothers 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 mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation. (Report of the Code Commission, p. 12)A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No. 603).Article 17 of the same Code is even more explicit in providing for the childs custody under various circumstances, specifically in case the parents are separated. It clearly mandates that no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so. The provision is reproduced in its entirety as follows:Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just and reasonable parental authority and responsibility over their legitimate or adopted children. In case of disagreement, the fathers decision shall prevail unless there is a judicial order to the contrary.In case of the absence or death of either parent, the present or surviving parent shall continue to exercise parental authority over such children, unless in case of the surviving parents remarriage, the court for justifiable reasons, appoints another person as guardian.In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so.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 211was derived from the first sentence of the aforequoted Article 17; Article 212,from the second sentence; and Article 213,save for a few additions, from the third sentence. It should be noted that the Family Code has reverted to the Civil Code provision mandating that a child belowsevenyears should not be separated from the mother.InLacson v. San Jose-Lacson,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. 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. In like manner, the word shall in Article 213 of the Family Code and Section 6of Rule 99 of the Rules of Court has been held to connote a mandatory character.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.In the present case, the parents are living separately as a matter of fact.The Convention on the Rights of the Child provides that [i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, thebest interests of the childshall be a primary consideration. 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. Courts are mandated to take into account all relevant circumstances that would have a bearing on the childrens 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.Among these factors are the previous care and devotion shown by each of the parents; their religious background, moral uprightness, home environment and time availability; as well as the childrens emotional and educational needsAs 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. The so-calledtender-age presumptionunder Article 213 of the Family Code may be overcome only bycompellingevidence of the mothers unfitness. The mother has been declared unsuitable to have 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. 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 mothers immoral conduct may constitute a compelling reason to deprive her of custody. But sexual preference or moral laxityalonedoes not prove parental neglect or incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child. 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. 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 compellingas 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 childs behavior in the presence of each parent, should carry more weight than a mere reliance on the records. All told, no compelling reason has been adduced to wrench the child from the mothers custody.SALIENTES vs. ABANILLA [August 29, 2006]FACTS:Loran and Marie Antonette are the parents of Lorenza Emmanuel. They lived with Maries parents. Due to in-law problems, Loran suggested that they transfer their own house but Marie refused so he, alone, left the house and was, later on prevented from seeing his son.He then instituted a petition for habeas corpus and custody. Ordered to show cause why should not be discharged from the restraint Marie moved for the reconsideration of the order which the court denied. She went to the CA which affirmed the denial of the lower court. On certiorari, she contended that there was no evidence at all that the 3-year Lorenzo was under restraint and no evidence of maternal unfitness to deprive the mother Marie of her son of tender years. That the writ is unwarranted considering that there is no unlawful restraint by the mother and considering that the law presumes the fitness of the mother, thereby negating compelling reason and any of such mother illegally restraining her own son. She maintains that Loran had the burden of showing a compelling reason but failed to present even a prima facie proof thereof. Accordingly, the proper remedy is an action for custody and not habeas corpus as the latter is unavailable against the mother

ISSUE:Who, under the law, has the right of custody of the minor? HELD:Habeas Corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Article 211 of the FC, Loran and Marie Antonette have joint parental authority over their minor 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 entitled to the custody of their child. In this case, Lorans cause of action is the deprivation of his right to see his son, 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 Code unequivocally provides that in all questions regarding the care and custody of the child, his welfare shall be the paramount consideration.Article 213 of the FC deals with the judicial adjudication of custody and serves as a guideline for the proper award of the custody by the court. Petitioners can raise it as a counterargument for Lorans petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under 7 years of age.

GAMBOA-HIRSCH VS. COURT OF APPEALS [527 SCRA 380]

FACTS:Franklin and Agnes were married onDecember 23, 2000in the City ofBacolod, and established their conjugal dwelling in Diniwid,Boracay Island, Malay, Aklan. OnDecember 21, 2002, a child was born to them and was named Simone. In 2005, the couple started to have marital problems as Agnes wanted to stay inMakatiCity, whileFranklininsisted that they stay inBoracayIsland. OnMarch 23, 2006, Agnes came to their conjugal home in Boracay, and asked for money and forFranklins permission for her to bring their daughter toMakatiCityfor a brief vacation. Franklinreadily agreed, but soon thereafter discovered that neither Agnes nor their daughter Simone would be coming back to Boracay.

Franklinthen filed a petition for habeas corpus before the CA for Agnes to produce Simone in court. OnMay 19, 2006, the CA issued a Resolution which ordered that a writ of habeas corpus be issued ordering that Simone be brought before said court onMay 26, 2006. After a series of hearings and presentation of evidence, the CA, onJune 8, 2006, promulgated the assailed Decision grantingFranklinjoint custody with Agnes of their minor child. Agnes filed a Motion for Reconsideration of this Decision, which was denied in the CAsAugust 3, 2006Resolution for lack of merit.

ISSUE: Who should have the custody of the child?

HELD: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).The Child and Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care andcustody, among others, of the child, his/her welfare shall be the paramount consideration. The so-calledtender-age presumptionunder Article 213 of the Family Code may be overcome only bycompellingevidence of the mothers unfitness. The mother is declared unsuitable to havecustody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease. Here, the mother was not shown to be unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has been adduced to wrench the child from the motherscustody.

DACASIN VS. DACASIN [FEBRUARY 5, 2010]

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, 19thJudicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner.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 (Agreement) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement.Respondent undertook to obtain from the Illinois court an order relinquishing jurisdiction to Philippine courts.In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie.Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois courts retention of jurisdiction to enforce the divorce decree.

ISSUE:Whether or not the agreement is valid

HELD:The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law. In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.Otherwise, the contract is denied legal existence, deemed inexistent and void from the beginning.For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to testthe validity of the Agreements joint child custody stipulations.At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1)Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer married under the laws of the United States because of the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or in law(under the second paragraph of Article 213 of the Family Code) is also undisputed: no child under seven years of age shall be separated from the mother x x x.(This statutory awarding of sole parental custodyto the mother is mandatory,grounded on sound policy consideration,subject only to a narrow exception not alleged to obtain here.) Clearly then, the Agreements object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.The Agreement is not onlyvoid ab initiofor 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. 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 divorcedparents 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 toprecludethe application of the exclusive maternal custody regime under the second paragraph of Article 213.

Instead of ordering the dismissal of petitioners suit, the logical end to its lack of cause of action, we remand the case for the trial court to settle the question of Stephanies custody. Stephanie is now nearly 15 years old, thus 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.As the question of custody is already before the trial court and the childs parents, by executing the Agreement, initially showed inclination to share custody, it is in the interest of swift and efficient rendition of justiceto allow the parties to take advantage of the courts jurisdiction, submit evidence on the custodial arrangement best serving Stephanies interest, and let the trial court render judgment.This disposition is consistent with the settled doctrine that in child custody proceedings, equity may be invoked to serve the childs best interest.

SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY VS. TAGUIAM558 SCRA 223FACTS: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 letterto the grade school principal requesting permission to hold a year-end celebration at the school groun