PARENTAL AUTHORITY-CUSTODY

Article 211 of the Family Code provides that the father and mother shall
jointly exercise parental authority over the persons of their common
children. (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al., G.R.
No. 140817, December 7, 2001; Pardo, J.)
Similarly, P.D. No. 1083 is clear that where the parents are nor divorced or
legally separated, the father and mother shall jointly exercise just and
reasonable parental authority and fulfill their responsibility over their
legitimate children. (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy,
et.al., G.R. No. 140817, December 7, 2001; Pardo, J.)
In Sagala-Eslao vs. Court of Appeals, we stated: xxx [Parental authority] is
a mass of rights and obligations which the law grants to parents for the
purpose of the childrens physical preservation and development, as well as
the cultivation of their intellect and the education of their heart and senses.
As regards parental authority, there is no power, but a task; no complex of
rights, but a sum of duties; no sovereignty but a sacred trust for the welfare
of the minor. (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al.,
G.R. No. 140817, December 7, 2001; Pardo, J.)

BURDEN OF PROOF:
The burden is upon respondent to prove that petitioner is not worthy to have
custody of her children. (Sabrina Artadi Bondagjy vs. Fouzi Ali
Bondagjy, et.al., G.R. No. 140817, December 7, 2001; Pardo, J.)
The right of custody accorded to parents springs from the exercise of
parental authority. Parental authority or patria potestas in Roman Law is the
juridical institution whereby parents rightfully assume control and protection
of their unemancipated children to the extent required by the latters needs.
It is a mass of rights and obligations which the law grants to parents for the
purpose of the childrens physical preservation and development, as well as
the cultivation of their intellect and the education of their heart and senses.
As regards parental authority, there is no power, but a task; no complex of
rights, but a sum of duties; no sovereignty but a sacred trust for the welfare
of the minor. (Santos vs. Court of Appeals, 242 SCRA 407 (1995)

The right attached to parental authority, being purely personal, the law
allows a waiver of parental authority only in cases of adoption, guardianship
and surrender to a childrens home or an orphan institution. (Ibid)
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company. The childs welfare is always the paramount consideration in all
questions concerning his care and custody. (Ibid)
The law vests on the father and mother joint parental authority over the
persns of their common children. In case of 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. (Ibid)
Of considerable importance is the rule long accepted by the courts that the
right of parents to the custody of their minor children is one of the natural
rights incident to parenthood, a right supported by law and sound public
policy. The right is an inherent one, which is not created by the state or
decisions of the courts, but derives from the nature of the parental
relationship. (Eslao vs. Court of Appeals, 266 SCRA 317 (1997)
Under Article 176 of the Family Code, the illegitimate child is under the
parental authority of the mother, who, as a consequence of such authority, is
entitled to have custody of him. (David vs. CA, ibid) NOTE: petition for
habeas corpus is allowed to be filed by the mother against the father.
In custody cases, the courts are frequently called upon to decide which
parent has the better right.
Whether a child is under or over seven years of age, the paramount criterion
must always be the childs interest. 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. (Espiritu vs. Court of Appeals, 242 SCRA 362
(1995)
The Supreme Court laid down the rule that in all controversies regarding the
custody of minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned, taking into

account the respective resources and social and moral situations of the
contending parents, xxx
xxxx
xxx In its discretion, the court may find the chosen parent unfit and award
custody to the other parent, or even to athird party as it deems fit under the
circumstances. (Unson III vs. Navarro, 101 SCRA 183 (1980)
Some circumstances which may be considered ample justification to deprive
a mother of custody: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment, insanity, cummunicable
disease. But always the childs welfare is the paramount consideration.
(Perez vs. Court of Appeals, 255 SCRA 661 (1996)
Indeed, what determines the fitness of any parent is the ability to see to the
physical, educational, social and moral welfare of the children, and the
ability to give them a healthy environment as well as physical and financial
support taking into consideration the respective resources and social and
moral situations of the parents. (Sabrina Artadi Bondagjy vs. Fouzi Ali
Bondagjy, et.al. G.R. NO. 140817, December 7, 2001)
In ascertaining the welfare and best interest of the children, courts are
mandated by the Family Code to take into account all relevant
considerations. (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al.
G.R. NO. 140817, December 7, 2001)
Article 211 of the Family Code provides that the father and mother shall
jointly exercise parental authority over the persons of their common
children.
Similarly, P.D. No. 1083 is clear that where the parents are not divorced or
legally separated, the father and mother shall jointly exercise just and
reasonable parental authority and fulfill their responsibility over their
legitimate children. (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy,
et.al. G.R. NO. 140817, December 7, 2001)
Either parent may lose parental authority over the child only for a valid
reason. In cases where both parties cannot have custody because of their
voluntary separation, we take into consideration the circumstances that

would lead us to believe which parent can better take care of the children.
(Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al. G.R. NO.
140817, December 7, 2001)
However. Award of custody to the wife does not deprive the husband of
parental authority. In the case of Silva vs. Court of Appeals, the Supreme
Court said that:
Parents have the natural right, as well as the moral and legal duty, to
care for their children, see to their upbringing and safeguard their best
interest and welfare. This authority and responsibility may not be unduly
denied the parents; neither may it be renounced by them. Even when the
parents are estranged and their affection for each other is lost, the attachment
and feeling for their offsprings invariably remain unchanged. Neither the law
nor the courts allow this affinity to suffer absent, of course, any real, grave
and imminent threat to the well-being of the child. (cited in Sabrina
Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al. G.R. NO. 140817,
December 7, 2001)
It must be pointed out however that decisions of the courts, even the
Supreme Court, on the custody of minor children are always open to
adjustment as the circumstances relevant to the matter may demand in the
light of the inflexible criterion, namely, the paramount interest of the
children. The custody judgment does not become final (Unson III vs.
Navarro, 101 SCRA 189; Luna vs. Intermediate Appellate Court, 137
SCRA 7, Persons and Family Relations Law by Melencio S. Sta. Maria.
Jr. 3rd Edition, 1999, page 703)
The Supreme Court has held in numerous cases that a change in the situation
of the parties was considered a circumstance that would render execution
inequitable and unjust. (Limpin, Jr. vs. IAC, 147 SCRA 516 (Jan. 30,
1987); Luna vs. IAC, 137 SCRA 7 (June 18, 1985); Central Textile Mills,
Inc. vs. United (CMC Textile Workers Union-TGWF, 94 SCRA 883)
Elvie, being the natural mother of the minor Vic, has the preferential right
over that of Pacita to be her guardian. The rights of parents to the custody of
their minor children are one of the natural rights inherent to parenthood, a
right supported by law and sound public policy. It is an inherent one derived
from the nature of parental relationship. Pacita, as the surviving grandparent,
can exercise substitute parental authority only in case of death, absence or

unsuitability of Elvie. There is no convincing proof that Elvie is not suited to

be the guardian of Vic. Pacitas insistence that Elvie is morally unfit as her
live in partner raped Virgie several times is not material since Virgie, now
being of age is no longer the subject of the guardianship proceedings. Even
assuming that Elvie is unfit as guardian of Vic, still Pacita cannot qualify as
substitute guardian because she is an American citizen and a resident of
Colorado and thus will not be able to perform the responsibilities and
obligations required of a guardian. She has not set foot in thePhilippines
since she left in 1987. Besides, her old age and conviction for libel will give
her second thoughts of staying here. Her coming to fulfill her duties as
guardian of Vic for only two years is uncertain. She will merely delegate
those duties to someone else who may not also qualify as a guardian.
Notwithstanding the fact that there is no law requiring courts to appoint only
residents or citizens as guardians, the courts should not appoint persons as
guardians or administrators who are not personally subject to its jurisdiction
as they will find much difficulty in protecting the estate of the wards if the
guardians or administrators are not subject to their jurisdiction. (Vancil vs.
Belmes, G.R. No. 132223, June 19, 2001, 358 SCRA 707)
In his concurring opinion, Justice Jose C. Vitug said that the childs
illegitimacy does not in any way affect the order of priority in the exercise of
parental authority. Indeed the Family Code (Art. 176) provides that an
illegitimate child shall be under the parental authority of the mother who
consequentially should also be entitled to the custody of the child. (Vancil
vs. Belmes, G.R. No. 132223, June 19, 2001, 358 SCRA 707)
CUSTODY:
Fitness of the mother
Indeed, what determines the fitness of any parent is the ability to see to the
physical. Educational, social and moral welfare of the children, and the
ability to give them a healthy environment as well as physical and financial
support taking into consideration the respective resources and social and
moral situations of the parents. (Sabrina Artadi Bondagjy vs. Fouzi Ali
Bondagjy, et.al., G.R. No. 140817, December 7, 2001; Pardo, J.)
The welfare of the minors is the controlling consideration on the issue. In
ascertaining the welfare and best interest of the children, courts are

mandated by the Family Code to take into account all relevant

considerations. (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al.,
G.R. No. 140817, December 7, 2001; Pardo, J.)
Either parent may lose parental authority over the child only for a valid
reason. In cases where both parties cannot have custody because of their
voluntary separation, we take into consideration the circumstances that woud
lead us to believe which parent can better take care of the children. Although
we see the need for the children to have both a mother and a father, we
believe that petitioner has more capacity and time to see to the childrens
needs. Respondent is a businessman whose work requires that he go abroad
or be in different places most of the time. Under P.D. No. 603, the custody
of the minor children absent a compelling reason to the contrary, is given to
the mother . (Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, et.al.,
G.R. No. 140817, December 7, 2001; Pardo, J.)
However, the award of custody to the wife does not deprive the husband of
parental authority. In the case of Silva vs. Court of Appeals, we said that:
Parents have the natural right, as well as the moral and legal duty, to care
for their children, see to their upbringing and safeguard their best interest
and welfare. This authority and responsibility may not be unduly denied the
parents; neither may it be renounced by them. Even when the parents are
estranged and their affection for each other is lost, the attachment and
feeling for their offsprings invariably remain unchanged. Neither the law nor
the courts allow this affinity to suffer absent, of course, any real, grave and
imminent threat to the well-being of the child. (Sabrina Artadi Bondagjy
vs. Fouzi Ali Bondagjy, et.al., G.R. No. 140817, December 7, 2001;
Pardo, J.)