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TITLE VIII

SUPPORT

(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

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)
b)
c)
d)
e)
f)
g)
h)

(5) Legitimate brothers and sisters, whether of full or half-blood


(291a)

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)

It is personal;
It is intransmissible;
Not subject to attachment or execution;
Never fixed; always subject to adjustment depending on the means of the
giver and the needs of the recipient;
Reciprocal on the part of those who are by law bound to support each other;
Demandable from the time it is needed;
Demandable even if the recipient is beyond the age of majority;
Demandable even if the recipient is already married.

(2) Legitimate ascendants and descendants;

Read with Art. 94.


Properties answerable for support:
a)

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;

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.

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; and
4. 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 of P6,000, 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
of P6,000 pendente 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 petitioners liability to the amount of monthly support needed by
respondents Lester Edward, Candice Grace and Mariano III only.
By statutory and 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 of when their liability is triggered,
not if they are liable. Relying on provisions found in Title IX of the Civil Code, as
amended, on Parental Authority, petitioners theorize that their liability is activated
only upon default of parental authority, conceivably either by its termination or
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 latters offspring 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 the duration of the obligation and
its concurrence among 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
ascendants not 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 respondents basic needs. This inability of Edward and Cheryl to
sufficiently provide for their children shifts a portion of their obligation to the
ascendants in the nearest degree, both in the paternal (petitioners) and
maternal lines, following the ordering in Article 199. To hold otherwise, and thus
subscribe to petitioners theory, is to sanction the anomalous scenario of tolerating
extreme 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
their descendants as this word is commonly understood to refer to relatives, by blood
of lower degree. As petitioners grandchildren by blood, only respondents Lester
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 petitioners Makati residence. The option is unavailable to
petitioners.
The application of Article 204 which provides that
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 amoral or legal obstacle thereto.
is subject to its exception clause. Here, the persons entitled to receive support are
petitioners grandchildren and daughter-in-law. Granting petitioners the option in
Article 204 will 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 a legal obstacle, as indeed, Cheryls charge
against Edward for concubinage did not prosper for insufficient evidence, her
steadfast insistence on its occurrence amounts to a moral impediment bringing the
case within the ambit of the exception clause of Article 204, precluding its
application.
TITLE IX
PARENTAL AUTHORITY
Chapter 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 AUTHORITY
Parental 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.
2.

It is a natural right and duty of the parents.


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,
and

2.

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)
3)

if the testimony is voluntary; or


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 means
4. abused those who suffer maltreatment whether physical or sexual
Art. 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, or
2. 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,
companionship and understanding;

advice

and

counsel,

(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; and
3. 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; or
3. 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; and

2. 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.
3.

Terminating the judicial guardianship over the child;


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; or
4. 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.

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.

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 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.

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)

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?

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)

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 wellbeing. 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 custody pendente lite of 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
custody pendente lite of 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 fouryear 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 custody pendente lite of
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 Code provides:
ART. 213. In case of separation of the parents, parental authority shall
be exercised by the parent designated by the court. The court shall take
into account all relevant considerations, especially the choice of the child
over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise.
This Court has held that when the parents are separated, legally or otherwise, the
foregoing provision governs the custody of their child. 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 its raison detre in 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 211 was 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 below seven years should not be separated from the mother.
In Lacson 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 6 of 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, the best interests of the
child shall 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 needs
As pointed out earlier, there is express statutory recognition that, as a general rule, a
mother is to be preferred in awarding custody of children under the age of seven. The
caveat in Article 213 of the Family Code cannot be ignored, except when the court
finds cause to order otherwise.
The so-called tender-age presumption under Article 213 of the Family Code may be
overcome only by compelling evidence 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 laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful
to her husband would render her unfit to have custody of her minor child. To deprive
the wife of custody, the husband must clearly establish that her moral lapses have
had an adverse effect on the welfare of the child or have distracted the offending
spouse from exercising proper parental care.

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]

Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled
in her May 17, 2002 Order that she had found the reason stated by Crisanto not to be
compelling as to suffice as a ground for separating the child from his mother. The
judge made this conclusion after personally observing the two of them, both in the
courtroom and in her chambers on April 16, 2002, and after a chance to talk to the
boy and to observe him firsthand. This assessment, based on her unique opportunity
to witness the 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.

FACTS: Franklin and Agnes were married on December 23, 2000 in the City
of Bacolod, and established their conjugal dwelling in Diniwid, Boracay Island, Malay,
Aklan. On December 21, 2002, a child was born to them and was named Simone. In
2005, the couple started to have marital problems as Agnes wanted to stay
in Makati City, while Franklin insisted that they stay in Boracay Island. On March 23,
2006, Agnes came to their conjugal home in Boracay, and asked for money and
for Franklins permission for her to bring their daughter to Makati City for a brief
vacation. Franklin readily agreed, but soon thereafter discovered that neither Agnes
nor their daughter Simone would be coming back to Boracay.

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.

Franklin then filed a petition for habeas corpus before the CA for Agnes to produce
Simone in court. On May 19, 2006, the CA issued a Resolution which ordered that a
writ of habeas corpus be issued ordering that Simone be brought before said court
on May 26, 2006. After a series of hearings and presentation of evidence, the CA,
on June 8, 2006, promulgated the assailed Decision granting Franklin joint custody
with Agnes of their minor child. Agnes filed a Motion for Reconsideration of this
Decision, which was denied in the CAs August 3, 2006 Resolution for lack of merit.

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

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 and custody, among others, of the
child, his/her welfare shall be the paramount consideration.
The so-called tender-age presumption under Article 213 of the Family Code may be
overcome only by compelling evidence of the mothers unfitness. The mother is
declared unsuitable to have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity, or affliction with a communicable
disease. 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 mothers custody.
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, 19 th Judicial 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 test the validity of the Agreements joint child custody
stipulations.

At the time the parties executed the Agreement on 28 January 2002, two facts are
undisputed: (1) Stephanie was under seven years old (having been born on 21
September 1995); and (2) petitioner and respondent were no longer married under
the laws of the United States because of the divorce decree. The relevant Philippine
law on child custody for spouses separated in fact or in law (under the second
paragraph of Article 213 of the Family Code) is also undisputed: no child under seven
years of age shall be separated from the mother x x x.(This statutory awarding of
sole parental custody to the mother is mandatory, grounded on sound policy
consideration, subject only to a narrow exception not alleged to obtain here.) 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 only void ab initio for being contrary to law; it has also been
repudiated by the mother when she refused to allow joint custody by the father. The
Agreement would be valid if the spouses have not divorced or separated because the
law provides for joint parental authority when spouses live together. However, upon
separation of the spouses, the mother takes sole custody under the law if the child is
below seven years old and any agreement to the contrary is void. Thus, the law
suspends the joint custody regime for (1) children under seven of (2) separated or
divorced spouses. Simply put, for a child within this age bracket (and for
commonsensical reasons), the law decides for the separated or divorced parents how
best to take care of the child and that is to give custody to the separated
mother. Indeed, the separated parents cannot contract away the provision in the
Family Code on the maternal custody of children below seven years anymore than
they can privately agree that a mother who is unemployed, immoral, habitually drunk,
drug addict, insane or afflicted with a communicable disease will have sole custody of
a child under seven as these are reasons deemed compelling to preclude the
application of the exclusive maternal custody regime under the second paragraph of
Article 213.
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 justice to 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. TAGUIAM


558 SCRA 223
FACTS:

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 letter to the grade school principal requesting permission to hold a
year-end celebration at the school grounds. The principal authorized the activity and

allowed the pupils to use the swimming pool. In this connection, respondent
distributed the parents/guardians permit forms to the pupils.
Respondent admitted that Chiara Mae Federicos permit form was unsigned.
Nevertheless, she concluded that Chiara Mae was allowed by her mother to join the
activity since her mother personally brought her to the school with her packed lunch
and swimsuit.
Before the activity started, respondent warned the pupils who did not know how to
swim to avoid the deeper area. However, while the pupils were swimming, two of
them sneaked out. Respondent went after them to verify where they were going.
Unfortunately, while respondent was away, Chiara Mae drowned. When respondent
returned, the maintenance man was already administering cardiopulmonary
resuscitation on Chiara Mae. She was still alive when respondent rushed her to the
General Malvar Hospital where she was pronounced dead on arrival.
On May 23, 2000, petitioners issued a Notice of Administrative Charge to respondent
for alleged gross negligence and required her to submit her written explanation.
Thereafter, petitioners conducted a clarificatory hearing which respondent attended.
Respondent also submitted her Affidavit of Explanation.
On July 31, 2000, petitioners dismissed respondent on the ground of gross negligence
resulting to loss of trust and confidence. Meanwhile, Chiara Maes parents filed a P7
Million damage suit against petitioners and respondent, among others. They also filed
against respondent a criminal complaint for reckless imprudence resulting in
homicide. On July 25, 2001, respondent in turn filed a complaint against the school
and/or Sr. Crispina Tolentino for illegal dismissal, with a prayer for reinstatement with
full backwages and other money claims, damages and attorneys fees.
In dismissing the complaint, the Labor Arbiter declared that respondent was validly
terminated for gross neglect of duty. He opined that Chiara Mae drowned because
respondent had left the pupils without any adult supervision. He also noted that the
absence of adequate facilities should have alerted respondent before allowing the

pupils to use the swimming pool. The Labor Arbiter further concluded that although
respondents negligence was not habitual, the same warranted her dismissal since
death resulted therefrom.
ISSUE:
Whether or not respondents dismissal on the ground of gross negligence
resulting to loss of trust and confidence was valid
HELD:
It was respondents responsibility as Class Adviser to supervise her class in
all activities sanctioned by the school. Thus, she should have coordinated with the
school to ensure that proper safeguards, such as adequate first aid and sufficient adult
personnel, were present during their activity. She should have been mindful of the fact
that with the number of pupils involved, it would be impossible for her by herself alone
to keep an eye on each one of them.
As it turned out, since respondent was the only adult present, majority of the pupils
were left unsupervised when she followed the two pupils who sneaked out. In the light
of the odds involved, respondent should have considered that those who sneaked out
could not have left the school premises since there were guards manning the gates.
The guards would not have allowed them to go out in their swimsuits and without any
adult accompanying them. But those who stayed at the pool were put at greater risk,
when she left them unattended by an adult.
As a teacher who stands in loco parentis to her pupils, respondent should have made
sure that the children were protected from all harm while in her company. Respondent
should have known that leaving the pupils in the swimming pool area all by
themselves may result in an accident. A simple reminder "not to go to the deepest
part of the pool" was insufficient to cast away all the serious dangers that the
situation presented to the children, especially when respondent knew that Chiara Mae
cannot swim. Dismally, respondent created an unsafe situation which exposed the
lives of all the pupils concerned to real danger. This is a clear violation not only of the
trust and confidence reposed on her by the parents of the pupils but of the school
itself.