LEGAL OPINION FOR THE CUSTODY CASE OF NICHOLSON JANO

I. The facts are as follows:

Nicholson Jano (Nicholson) and Princess Sarah Velasquez (Princess) were living together as

husband and wife without the benefit of marriage since 2012. They were blessed with two children,

the first is named Damien Marl Velasquez Jano while the second is named Luna Calliope

Velasquez Jano (Luna). Unfortunately, Princess died while giving birth to Luna. Luna’s maternal

grandmother then stated that she’ll be the one to take care of Luna for 3 months which Nicholson

agreed to. After a month, Nicholson’s mother requested that Luna be brought to their house to give

her the opportunity to see the child. This prompted Nicholson’s mother to go to the residence of

Luna’s maternal grandmother wherein an altercation ensued. Luna’s maternal grandmother refused

to allow Luna to be brought to Nicholson’s residence but despite her protests Nicholson’s mother

nonetheless took Luna. Since Nicholson feared that Luna’s maternal grandmother would refuse to

return Luna to them after the 3 month period, he informed Luna’s maternal grandmother via

Facebook messenger that he prefers that Luna would stay in his house with her sibling. Luna’s

grandmother reacted negatively and threatened legal action. After a few days, Nicholson was

brought to the barangay by Luna’s maternal grandmother. As a result, Luna’s maternal

grandmother was able to take back Luna.

Two questions are raised in this instance:

a. Whether Nicholson may acquire custody over Luna?

b. What are the remedies available to Nicholson?

 A. Nicholson may acquire custody over Luna

Nicholson could acquire custody over his child named Luna.

Article 165 of the Family Code provides that “[c]hildren conceived or born outside a valid

marriage are illegitimate1”. Since Nicholson and Princess were unmarried when Luna was born,

Luna was born outside of a valid marriage and is therefore considered as an illegitimate child.

Being an illegitimate child, the custody of Luna should normally belong to her mother. The

relevant provision of Article 176 of the Family Code provides:

“Art. 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in
conformity with this Code.2”

However, the parental authority of Princess was terminated upon her death 3. As such, Nicholson,

as the surviving parent, may exercise parental authority and acquire custody over Luna. Article

212 of the Family Code provides:

“Art. 212. In the 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.4”

1 Family Code, Art. 165.

2 Id., Art. 165.
3 Id., Art. 228.
Parental authority terminates permanently:
(1) Upon the death of the parents;
4 Id., Art. 212.
Nicholson, being the sole surviving parent of Luna, may acquire custody over the child provided

that he recognizes Luna as his child in a record of birth.

The maternal grandmother of Luna should not have taken custody of Luna. A grandmother may

only take custody over a child if there is no other surviving, present or suitable parent. The relevant

provision of the Family Code provides that:

“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.5”

The Family Code also provides for a hierarchy when it comes to parental authority providing that:

“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.6” (emphasis supplied)

This is further illustrated in the case of Vancil v. Belmes wherein the court stated that “the surviving

grandparent, can exercise substitute parental authority only in the case of death, absence or

unsuitability of the respondent [parent]. 7”

5 Id. , Art. 214.

6 Id., Art. 216
7 Vancil v. Belmes, G.R. No. 132223, June 19, 2001.
In this particular case, Nicholson is still alive and there is no indicator that Nicholson is unsuitable

to exercise parental authority over Luna. Furthermore, Nicholson has been taking care of his

firstborn child ever since the death of Princess which strongly indicates that he is very much

capable of taking care of Luna. It is evident that Nicholson, as the father, can exercise parental

authority over Luna and the maternal grandparent acted beyond her rights when she took custody

of Luna.

It is, however, noted that even if the law favors the parent to have custody over their children, it is

possible that the court may award custody to the grandparent if it finds that the same is in the best

interest of the child. The relevant provision provides that:

“Section 14. Factors to consider in determining custody. - In awarding

custody, the court shall consider the best interests of the minor and shall
give paramount consideration to his material and moral welfare. The best
interests of the minor refer to the totality of the circumstances and
conditions as are most congenial to the survival, protection, and feelings of
security of the minor encouraging to this physical, psychological and
emotional development. It also means the least detrimental available
alternative for safeguarding the growth and development of the minor. 8”

The Court further stated in the case of Wilson Sy v. Court of Appeals that in “all controversies

regarding the custody of minors, the sole and foremost consideration is the physical, educational,

social, and moral welfare of the child concerned, taking into account the respective resources and

social and moral situations of the contending parents.9”

8 A.M. No. 03-04-04-SC, Re: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of MInors, April 22, 2003, Section 14.
9 Wilson Sy v. CA, G.R. No. 124518, December 27, 2007.
B. Remedy

As to Nicholson’s possible remedy regarding the custody of Luna, Nicholson should first check

if he acknowledged that Luna is his child. Since Luna is an illegitimate child, Nicholson must

prove that he is the father before he may avail of possible legal remedies. As such, it is, thus,

recommend that Nicholson check the birth certificate of Luna and ascertain whether it indicates

that Nicholson is the father of Luna. If it does not, Nicholson should execute a public instrument

acknowledging that Luna is his child. After acquiring the above mentioned proof, Nicholson may

file a verified Petition for Custody of Minors10 under A.M. No. 03-04-04 before the “Family Court

of the province or city where the petitioner resides or where the minor may be found 11”

Another possible remedy would be to file a verified petition for writ of habeas corpus under Section

20 of A.M. No. 03-04-04. Such a remedy is available when the custody of the child is being

unlawfully withheld by another. The petition must be filed in the Family Court of the province or

city where the minor may be found. 12

Respectfully,

Nolan Redji D. Domingo

Christianne Noelle De Vera

10 A.M. No. 03-04-04-SC, Supra, Section 2.

11 Id. Section 3.
12 Id. Section 20.