CASE DIGEST

THE FAMILY ART 149-151

Code, as well as under Sec. 1,par. (j), Rule 16, of the Rules of Court
requiring earnestefforts towards a compromise before a suit
betweenthem may be instituted and maintained;b.

127. GAUDENCIO GUERRERO,

whether the absence of an allegation in the complaintthat earnest

efforts towards a compromise wereexerted, which efforts failed, is a
ground for dismissal forlack of jurisdiction.HELD:1.

petitioner,vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI,
JUDGE LUIS B.BELLO, JR., PRESIDING, and PEDRO G.
HERNANDO,
respondents.FACTS:
1.Pedro G. Hernando apparently overlooked this alleged defectsince he
did not file any motion to dismiss nor attack thecomplaint on this
ground in his answer.
2.PRE-TRIAL: Judge Luis B. Bello, Jr.: NOTED THAT:
GUERREROand HERNANDO were related as brothers-in-law then
JUDGEgave petitioner five (5) days "to file his motion and
amendedcomplaint" to allege that the parties were very close
relatives,their respective wives being sisters, and that the complaint
tobe maintained should allege that earnest efforts towards
acompromise were exerted but failed and considered thisdeficiency a
JURISDICTIONAL DEFECT.
3.MR was filed by GUERRERO: brothers by affinity are notmembers
of the same family, he was not required to exertefforts towards a
compromise

DENIED: "[f]ailure to allege thatearnest efforts towards a

compromise is jurisdictional such thatfor failure to allege same the
court would be deprived of its jurisdiction to take cognizance of the
case."
4.
Case was dismissed without prejudice: No amendedcomplaint filed
5.
ISSUE: ON APPEAL: GUERRERO:a.
whether brothers by affinity are considered members ofthe same
family contemplated in Art. 217, par. (4), andArt. 222 of the New Civil

The Constitution protects the sanctity of the family andendeavors to

strengthen it as a basic autonomous socialinstitution.
This is also embodied in Art. 149, and given flesh inArt. 151, of the
Family Code, which provides:2.
Considering that Art. 151 starts with the negative word "No",
therequirement is mandatory
4
that the complaint or petition,which must be verified, should allege
that earnest effortstowards a compromise have been made but that the
samefailed, so that "[i]f it is shown that no such efforts were in
factmade, the case must be dismissed."3.
BUT the instant case presents no occasion for the applicationof the
above-quoted provisions. As early as two decades ago,we already
ruled in
Gayon v
.
Gayon
6
that the enumeration of"brothers and sisters" as members of the same
family does notcomprehend "sisters-in-law".4.
The requirement that the complaint or petition should allegethat
earnest efforts toward a compromise have been madebut that the same
failed is mandatory5.

The enumeration of brothers and sisters as members of thesame

family does not comprehend sister
-inlaw/ brothers
-inlaw are not listed in Art 217 of the NCC as members of thesame
family and since Art 150 repeats the same members ofthe family
court finds no reason to alter the existing
jurisprudence6.
2
nd
ISSUE: The attempt to compromise as well as the inability tosucceed
is a condition precedent to the filing of a suitbetween members of the
same family, absent such allegationin the complaint being assailable at
any stage of theproceeding, even on appeal, for lack of cause of action.
128. Mondequillo vs Breva
Mondequillo vs Breva
GR. No. 86355, May 31, 1990
FACTS:
The sheriff levied on a parcel of residential land located at Poblacion
Malalag, Davao del Sur on July 1988, registered in the name of Jose
Mondequillo and a parcel of agricultural land located at Dalagbong
Bulacan, Malalag, Davao de Sur also registered in the latters name. A
motion to quash was filed by the petitioner alleging that the residential
land is where the family home is built since 1969 prior the
commencement of this case and as such is exempt from execution,
forced sale or attachment under Article 152 and 153 except for
liabilities mentioned in Article 155 thereof, and that the judgment
sought to be enforced against the family home is not one of those
enumerated. With regard to the agricultural land, it is alleged that it is
still part of the public land and the transfer in his favor by the original
possessor and applicant who was a member of a cultural minority. The
residential house in the present case became a family home by
operation of law under Article 153.

ISSUE: WON the subject property is deemed to be a family home.

HELD:
The petitioners contention that it should be considered a family home
from the time it was occupied by petitioner and his family in 1969 is
not well-taken. Under Article 162 of the Family Code, it provides that
the provisions of this Chapter shall govern existing family residences
insofar as said provisions are applicable. It does not mean that Article
152 and 153 shall have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at the
time of their occupation prior to the effectivity of the Family Code and
are exempt from the execution for payment of obligations incurred
before the effectivity of the Code. The said article simply means that
all existing family residences at the time of the effectivity of the
Family Code, are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the FC. The
debt and liability which was the basis of the judgment was incurred
prior the effectivity of the Family Code. This does not fall under the
exemptions from execution provided in the FC.
As to the agricultural land, trial court correctly ruled that the levy to be
made shall be on whatever rights the petitioner may have on the land.
Petition was dismissed.
129. Manacop vs CA
Manacop vs. CA
GR No. 104875, November 13, 1992
FACTS:
Florante Manacop and his wife Euaceli purchased on March 1972, a
residential lot with a bungalow located in Quezon City. The petitioner
failed to pay the sub-contract cost pursuant to a deed of assignment
signed between petitioners corporation and private respondent herein
(FF Cruz & Co). The latter filed a complaint for the recovery for the
sum of money with a prayer for preliminary attachment against the
former. Consequently, the corresponding writ for the provisional

remedy was issued which triggered the attachment of a parcel of land

in Quezon City owned by the Manacop Construction President, the
petitioner. The latter insists that the attached property is a family home
having been occupied by him and his family since 1972 and is
therefore exempt from attachment.

properties were sold at public auction on February 12, 1966 to the

private respondent as the highest bidder.

Consequently, after

petitioners failure to redeem the same, a final deed of conveyance was

executed on February 9, 1968, definitely selling, transferring, and

ISSUE: WON the subject property is indeed exempted from

attachment.

conveying said properties to the private respondent.

HELD:

To forestall such conveyance, petitioners filed an action on November

The residential house and lot of petitioner became a family home by

operation of law under Article 153 of the Family Code. Such
provision does not mean that said article has a retroactive effect such
that all existing family residences, petitioners included, are deemed to
have been constituted as family homes at the time of their occupation
prior to the effectivity of the Family Code and henceforth, are exempt
from execution for the payment of obligations incurred before the
effectivity of the Family Code on August 3, 1988. Since petitioner
incurred debt in 1987, it preceded the effectivity of the Code and his
property is therefore not exempt form attachment.
The petition was dismissed by SC.

5, 1985 to declare the deed of conveyance void. The petitioners are

the children and heirs of Pablo Taneo and Narcisa Valaceras who died
on February 12, 1977 and September 12, 1984, respectively. Upon
their death, they left the subject property and that said property has
been acquired through free patent, therefore inalienable and not subject
to any encumbrance for the payment of debt
Private respondent refuted petitioners alleging that he lawfully
acquired the subject property which was a private land, by virtue of a
Sheriffs Sale. Said sale has become final as no redemption was made
within one year from the registration of the Sheriffs Certificate of

130. TANEO vs. CA

304 SCRA 308
FACTS:
As a result of a judgment in Civil Case for recovery of property in
favor of private respondent Abdon Gilig, two properties of the
petitioner were levied to satisfy the judgment amount. One was a
parcel of land and the other was the family home. The subject

Sale. .
ISSUE:
Whether or not the conveyance made by way of the sheriffs sale is
prohibited; and whether or not the family home is exempt from
execution.
HELD:

The conveyance made by way of the sheriffs sale was not violative of
the law. The judgment obligation of the petitioners against Abdon
Gilig arose on June 24, 1964. The properties were levied and sold at
public auction with Abdon Gilig as the highest bidder on February 12,
1966. On February 9, 1968, the final deed of conveyance ceding the
subject property to Abdon Gilig was issued after the petitioners failed
to redeem the property after the reglementary period.

Facts:
In Civil Case No. 95-110-MK, Petitioner Albino Josef was the
defendant, which is a case for collection of sum of money filed by
herein respondent Otelio Santos, who claimed that petitioner failed to
pay the shoe materials which he bought on credit from respondent on
various dates in 1994. After trial, the Regional Trial Court of Marikina

Pablo Taneos application for free patent was approved only on

City found petitioner liable to respondent. Petitioner appealed to the

October 19, 1973. Therefore, even before the application for

Court of Appeals, which affirmed the trial courts decision in Toto.

homestead had been approved, Pablo Taneo was no longer the owner

Petitioner filed before this Court a petition for review on certiorari, but

of the land

it was dismissed in a Resolution dated February 18, 2002. The

The house was erected not on the land which the Taneos owned but on

Judgment became final and executory on May 21, 2002.

the land of one Plutarco Vacalares. By the very definition of the law
that the family home is the dwelling house where a person and his
family resides and the land on which it is situated, it is understood
that the house should be constructed on a land not belonging to
another. Apparently, the constitution of a family home by Pablo Taneo
in the instant case was merely an afterthought in order to escape
execution of their property.

A writ of execution was issued on August 20, 2003 and enforced

on August 21, 2003. On August 29, 2003, certain personal properties
subjects of the writ of execution were auctioned off. Thereafter, a real
property located at Marikina City was sold by way of public auction to
fully satisfy the judgment credit.

On November 5, 2003, petitioner filed an original petition for

131. josef vs santos

certiorari with the Court of Appeals, questioning the sheriffs levy and

ALBINO JOSEF vs. OTELIO SANTOS

sale of the abovementioned personal and real properties. Petitioner

claimed that the personal properties did not belong to him but to his

G.R. No. 165060

November 27, 2008

children; and that the real property was his family home thus exempt
from execution.

The same is true with respect to personal properties levied upon

and sold at auction. Despite petitioners allegations in his Opposition,
the trial court did not make an effort to determine the nature of the
same, whether the items were exempt from execution or not, or

Issue:

whether they belonged to petitioner or to someone else.

Whether or not the levy and sale of the personal belongings of

the petitioners children as well as the attachment and sale on public

auction of his family home to satisfy the judgment award in favor of
respondent is legal.

132.

Spouses De

Mesa

vs

Spouses

Acero

G.R. No. 185064, January 16, 2012

FACTS:
Spouses De Mesa obtained a loan from Spouses Acero which was

Ruling:

secured by a mortgage over the subject property. When Spouses De

Mesa failed to pay the loan, the property was sold at a public auction.

The Supreme Court held that the family home is the dwelling

Spouses Acero was the highest bidder and the corresponding

place of a person and his family, a sacred symbol of family love and

certificate of sale was issued to them. Thereafter, they leased the

repository of cherished memories that last during ones lifetime. It is

subject property to Spouses De Mesa who then defaulted in the

the sanctuary of that union which the law declares and protects as a

payment of the rent. Unable to collect the rentals due, Spouses Acero

sacred institution; and likewise a shelter for the fruits of that union. It

filed a complaint for ejectment against Spouses De Mesa. In their

is where both can seek refuge and strengthen the tie that binds them

defense, Spouses De Mesa claimed that Spouses Acero have no right

together and which ultimately forms the moral fabric of our nation.

over the subject property. They deny that they are mere lessors,

The protection of the family home is just as necessary in the

alleging that they are the lawful owners of the subject property and,

preservation of the family as a basic social institution, and since no

thus cannot be evicted therefrom. The MTC ruled in Spouses Aceros

custom, practice or agreement destructive of the family shall be

favor. Spouses De Mesa appealed the Decision.

recognized or given effect, the trial courts failure to observe the

proper procedures to determine the veracity of petitioners allegations,
is unjustified.

In the meantime, Spouses De Mesa filed a complaint with the Regional

Trial Court (RTC), seeking to nullify the title of Spouses Acero on the
basis that the subject property is a family home which is exempt from
execution under the Family Code, and thus, could have not been

validly levied upon for purposes of satisfying their unpaid loan. The

the prescribed period and it is not the sheriffs duty to presume or raise

RTC dismissed their complaint. The Court of Appeals affirmed the

the status of the subject property as a family home. (Spouses Araceli

Decision.

Oliva-De Mesa vs. Spouses Claudio F. Acero, Jr., G.R. No. 185064, 16

ISSUE:

January 2012)

Whether the subject property is exempt from execution

133. KELLEY VS PLANTERS PRODUCT

HELD:

SPOUSES AUTHER G. KELLEY, JR. and DORIS A. KELLEY vs.

It is without dispute that the family home, from the time of its

PLANTERS PRODUCTS, INC. and JORGE A. RAGUTANA,

constitution and so long as any of its beneficiaries actually resides

therein, is generally exempt from execution, forced sale or attachment.

G.R. No. 172263

July 9, 2008

However, this right can be waived or be barred by laches by the failure

to set up and prove the status of the property as a family home at the

Facts:

time of the levy or a reasonable time thereafter.

Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural

The settled rule is that the right to exemption or forced sale under

chemical products on consignment from respondent Planters Products,

Article 153 of the Family Code is a personal privilege granted to the

Inc. (PPI) in 1989. Due to Authers failure to pay despite demand, PPI

judgment debtor and as such, it must be claimed not by the sheriff, but

filed an action for sum of money against him in the Regional Trial

by the debtor himself before the sale of the property at public auction.

Court of Makati City. After trial on the merits, the RTC Makati City

It is not sufficient that the person claiming exemption merely alleges

decided in favor of PPI and issued a writ of execution. After being

that such property is a family home. This claim for exemption must be

belatedly informed of the said sale, petitioners Auther and his wife

set up and proved to the Sheriff.

Doris A. Kelley filed a motion to dissolve or set aside the notice of

For all intents and purposes, the petitioners negligence or omission to

levy in the RTC Makati City on the ground that the subject property

assert their right within a reasonable time gives rise to the presumption

was their family home which was exempt from execution.

that they have abandoned, waived or declined to assert it. Since the
exemption under Article 153 of the Family Code is a personal right, it
is incumbent upon the petitioners to invoke and prove the same within

Issue:

Whether or not the subject property is the family home of the

petitioners.

secured by a mortgage on the premises before or after such

constitution; and (4) For debts due to laborers, mechanics, architects,
builders, material men and others who have rendered service or

Ruling:
Under the Family Code, there is no need to constitute the family
home judicially or extrajudicially. All family homes constructed after

furnished material for the construction of the building.

134. Equitable PCI Bank vs. OJ- Mark trading
G.R. No. 165950, August 11, 2010

the effectivity of the Family Code (August 3, 1988) are constituted as

such by operation of law. All existing family residences as of August 3,

Facts:

1988 are considered family homes and are prospectively entitled to the

Respondent-spouses Oscar and Evangeline Martinez obtained loans

from petitioner Equitable PCI Bank, Inc. in the aggregate amount of
P4,048,800.00. As security for the said amount, a Real Estate
Mortgage (REM) was executed over a condominium unit where the
spouses are residing. Respondent Oscar Martinez signed the REM both
as principal debtor and as President of the registered owner and thirdparty mortgagor, respondent OJ-Mark Trading, Inc.

benefits accorded to a family home under the Family Code.

The exemption is effective from the time of the constitution of

the family home as such and lasts as long as any of its beneficiaries
actually resides therein. Moreover, the debts for which the family
home is made answerable must have been incurred after August 3,
1988. Otherwise (that is, if it was incurred prior to August 3, 1988),
the alleged family home must be shown to have been constituted either
judicially or extrajudicially pursuant to the Civil Code.

The rule, however, is not absolute. The Family Code, in fact,

expressly provides for the following exceptions: Article 155. The
family home shall be exempt from execution, forced sale or
attachment except: (1) For non-payment of taxes; (2) For debts
incurred prior to the constitution of the family home; (3) For debts

Respondent-spouses defaulted in the payment of their outstanding loan

obligation; thus, they offered to settle their indebtedness with the
assignment to the Bank of a commercial lot, which at that time, was
not transferred in their name. While petitioners officers held a
meeting with respondent Martinez, the latter however failed to submit
the required documents such as certificates of title and tax declarations
so that the bank can evaluate his proposal to pay the mortgage debt via
dacion en pago. Consequently, petitioner initiated the extrajudicial
foreclosure of the real estate mortgage. On the other hand, respondents
filed a civil case for TRO and annulment of the extrajudicial sale. They
alleged, among others, that the REM is void for having been illegally
notarized; that the petitioner acted in BAD FAITH because it did not
officially inform them of the denial or of their proposal to settle the
loan obligation by dacion. The RTC ruled in favor of respondents and
issued the TRO. The same was affirmed by the CA, the latter holding
that respondents have sufficiently shown their proprietary right over
the condominium unit sought to be foreclosed, entitling it to the

questioned TRO. Thus, petitioner filed a petition for review on

certiorari under Rule 45 contending as follows: 1) it has a clear right to
foreclose the mortgage because the respondents failed to settle their
obligations; 2) there respondents have no right to an injunction
because they have no clear right to a dacion en pago.
Issue: Whether or not the respondents have shown a clear legal right to
enjoin the foreclosure and public auction of the third-party
mortgagors property.
Held: The Court REVERSED the decision of the CA. The Court held
that respondent spouses are NOT entitled to an injunctive writ because
their rights are merely contingent and not in esse. According to the
Court:
1. Respondents failed to show that they have a right to be protected
and that the acts against which the writ is to be directed are violative of
the said right.
On the face of their clear admission that they were unable to settle
their obligations which were secured by the mortgage, petitioner has a
clear right to foreclose the mortgage. Foreclosure is but a necessary
consequence of non-payment of a mortgage indebtedness. In a real
estate mortgage when the principal obligation is not paid when due,
the mortgagee has the right to foreclose the mortgage and to have the
property seized and sold with the view of applying the proceeds to the
payment of the obligation.
This Court has denied the application for a Writ of Preliminary
Injunction that would enjoin an extrajudicial foreclosure of a
mortgage, and declared that foreclosure is proper when the debtors are
in default of the payment of their obligation. Where the parties
stipulated that the mortgagee is authorized to foreclose the mortgaged
properties in case of default by the mortgagors, the mortgagee has a
clear right to foreclosure in case of default, making the issuance of a
Writ of Preliminary Injunction improper. Therefore, the allegations of
denial of due process and prematurity of a loan are not sufficient to
defeat the mortgagees unmistakable right to an extrajudicial
foreclosure.

2. There was no bad faith on the part of the petitioner.

It bears stressing that the existing written contract between petitioner
and respondent was admittedly one of loan restructuring; there is no
mention whatsoever or even a slightest reference in that written
contract to a supposed agreement of dacion en pago. In fine, it is still
necessary for petitioner to establish in the main case its rights on the
alleged dacion en pago before those rights become in esse or actual
and existing. Only then can the injunctive writ be properly issued. It
cannot be the other way around. Otherwise, it will be like putting the
cart before the horse.
The respondents position, therefore, that petitioners act of initiating
extrajudicial foreclosure proceeding while they negotiated for a dacion
en pago was illegal and done in bad faith is without merit. As
respondent-spouses themselves admitted, they failed to comply with
the documentary requirements imposed by the petitioner for proper
evaluation of their proposal. In any event, petitioner had found the
subdivision lots offered for dacion as unacceptable, not only because
the lots were not owned by respondents as in fact, the lots were not
yet titled but also for the reason that respondent Oscar Martinezs
claimed right therein was doubtful or inchoate, and hence not in esse.
Requests by debtors-mortgagors for extensions to pay and proposals
for restructuring of the loans, without acceptance by the creditormortgagee, remain as that. Without more, those proposals neither
novated the parties mortgage contract nor suspended its execution. In
the same vein, negotiations for settlement of the mortgage debt by
dacion en pago do not extinguish the same nor forestall the creditormortgagees exercise of its right to foreclose as provided in the
mortgage contract.
3. Respondent-spouses alleged proprietary right in the mortgaged
condominium unit appears to be based merely on respondents
averment that respondent OJ-Mark Trading, Inc. is a family
corporation.

However, there is neither allegation nor evidence to show prima facie

that such purported right, whether as majority stockholder or creditor,
was superior to that of petitioner as creditor-mortgagee. The rule
requires that in order for a preliminary injunction to issue, the
application should clearly allege facts and circumstances showing the
existence of the requisites. It must be emphasized that an application
for injunctive relief is construed strictly against the pleader.
4. The contention that the family home is exempt from execution sale
does not hold water.
The contention that the family home is exempt from execution is
entirely inconsistent with the clear contractual agreement of the REM.
Assuming arguendo that the mortgaged condominium unit constitutes
respondents family home, the same will not exempt it from
foreclosure as Article 155 (3) of the same Code allows the execution or
forced sale of a family home for debts secured by mortgages on the
premises before or after such constitution. Respondents thus failed to
show an ostensible right that needs protection of the injunctive writ.

acknowledge the former as a compulsory heir of the deceased and to

be entitled to all successional rights. Liyao Jr. was in continuous
possession and enjoyment of the status as the child of the deceased
having been recognized and acknowledged as such child by the
decedent during his lifetime. There were two sides of the story.
Corazon maintained that she and the deceased were legally married but
living separately for more than 10 years and that they cohabited from
1965 until the death of the deceased. On the other hand, one of the
chidren of the deceased stated that her mom and the deceased were
legally married and that her parents were not separated legally or in
fact.

ISSUE: WON the petitioner can impugn his own legitimacy to be able
to claim from the estate of the deceased.

HELD:
PATERNITY & FILIATION
135. Liyao vs Liyao
Liyao vs. Liyao
GR No. 138961, March 7, 2002

FACTS:

William Liyao Jr., the illegitimate son of the deceased, as represented

by her mother (Corazon), filed a petition ordering Juanita TanhotiLiyao, Pearl L. Tan, Tita L. Tan and Linda Liyao to recognize and

Impugning the legitimacy of the child is a strictly personal right of the

husband, or in exceptional cases, his heirs for the reason that he was
the one directly confronted with the scandal and ridicule which the
infidelity of his wife produced and he should be the one to decide
whether to conceal that infidelity or expose it in view of the moral and
economic interest involved. Hence, it was then settled that the
legitimacy of the child can only be impugned in a direct action brought
for that purpose, by the proper parties and within the period limited by
law.

Furthermore, the court held that there was no clear, competent and
positive evidence presented by the petitioner that his alleged father had
admitted or recognized his paternity.
136. Cabatania v ca

The fact that Florencias husband is living and there is a valid

subsisting marriage between them gives rise to the presumption that a
child born within that marriage is legitimate even though the mother
may have declared against its legitimacy or may have been sentenced
as an adulteress. (Article 167 of the Family Code)

GR No. 124814
October 21, 2004

In this age of genetic profiling and deoxyribonucleic acid (DNA)

ISSUE:

similarity of features will not suffice as evidence to prove paternity

Florencia, a married househelp had sexual intercourse with Camelo

Cabatania and allegedly had a child from him named Camelo
Regodos. Can the court compel petitioner Camelo Cabatania to
acknowledge Regodos as his illegitimate son and to give support to the
latter?
APPLICABLE LAW:
Art. 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned.

analysis, the extremely subjective test of physical resemblance or

and filiation before the courts of law.

137. PEOPLE vs DELANTAR Case Digest

PEOPLE OF THE PHILIPPINES vs. SIMPLICIO DELANTAR
G.R. No. 169143 February 2, 2007

FACTS: An information for violation of Section 5, Article III of

Republic Act (R.A.) No. 7610 was filed against appellant Simplicio
Delantar y Redondo. The testimony of AAA shows that appellant

In the absence of the foregoing evidence, the legitimate filiation shall

be proved by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.

procured her as a child prostitute for at least two clients: the first, an

Art. 175. Illegitimate children may establish their illegitimate filiation

in the same way and on the same evidence as legitimate children.

June 1996. Once left alone with AAA, the client would perform

RULING:

experience revolved around the client's kissing her, touching her

Arab national named Mr. Hammond and the second, then

Congressman Romeo Jalosjos. AAA testified that she was brought to
the first client at least eleven (11) times between the period 1994 to
lascivious acts on AAA, the recurrent salient points of her harrowing
breasts, embracing her, and inserting his finger in her private parts.

After their first visit to the client, AAA told appellant that she did not

Article III of R.A. No. 7610. The law punishes not only the person

want to go back because the client was "bastos." Appellant promised

who commits the acts of sexual intercourse or lascivious conduct with

her that they would no longer go back but the promise was broken as

the child but also those who engage in or promote, facilitate or induce

they went back a few more times.

child prostitution. Appellant is one such person. Appellant, in his brief,

does not deny that he brought AAA to the clients. He, however,

As with the first client, appellant would tell AAA that they had to go to
the second client because they had obligations to pay. During each of
these visits, the client would give AAA money ranging from P2,000.00
to P10,000.00. The details of what transpired when AAA was left
alone with the second client were vividly recounted in People v.
Jalosjos, where the second client was convicted of two (2) counts of
rape and six (6) counts of acts of lasciviousness, all committed against
AAA on various dates.

attempts to exculpate himself by stating that he did not coerce or

influence AAA to go to the two clients to be exploited in prostitution.
Verily, it was against AAA's will and consent to see the two clients.
But even if AAA had in fact consented, appellant may still be
prosecuted for child prostitution under Section 5, Article III of R.A.
No. 7610 because the child's consent or lack of it is not an element of
the offense.
138. DELA CRUZ vs. GARCIA
G.R. NO. 177728. July 31, 2009.

The RTC found appellant guilty beyond reasonable doubt of two

counts of violation of Section 5 (a), paragraphs 1, 4 and 5 of Article III
of R.A. No. 7610. On appeal, the CA found the appellant guilty of only
one count of violation of Section 5 (a), paragraphs 1, 4 and 5 of Article
III of R.A. No. 7610.

ISSUE: Was the accused guilty for violation of R.A. No. 7610?

HELD: Yes. There is no doubt, drawing from the evidence, that AAA
was a child who was exploited in prostitution as defined in Section 5,

FACTS:
For several months in 2005, then 21-year old Jenie San Juan dela Cruz
(Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino
(Dominique) lived together as husband and wife without the benefit of
marriage. They resided in the house of Dominique's parents Domingo
B. Aquino and Raquel Sto. Tomas Aquino at Teresa, Rizal. On
September 4, 2005, Dominique died. After almost two months, Jenie,
who continued to live with Dominique's parents, gave birth to her
minor child Christian dela Cruz "Aquino" at the Antipolo Doctors
Hospital, Antipolo City. Jenie applied for registration of the child's
birth, using Dominique's surname Aquino, with the Office of the City
Civil Registrar, Antipolo City, in support of which she submitted the
child's Certificate of Live Birth, Affidavit to Use the Surname of the
Father (AUSF) which she had executed and signed, and Affidavit of
Acknowledgment executed by Dominique's father Domingo Butch
Aquino. Both affidavits attested, inter alia, that during the lifetime of

Dominique, he had continuously acknowledged his yet unborn child,

and that his paternity had never been questioned. Jenie attached to the
AUSF a document entitled "AUTOBIOGRAPHY" which Dominique,
during his lifetime, wrote in his own handwriting.
ISSUE:
Whether or not the minor child can bear the surname of the deceased.

RTC a Complaint for support against Antonio. Mirasol and Randy thus
prayed that Antonio be ordered to support Randy. During the trial,
Mirasol presented Randys Certificate of Live Birth and Baptismal
Certificate indicating her and Antonio as parents of the child. Mirasol
testified that she and Antonio supplied the information in the said
certificates. The RTC rendered a decision ordering Antonio to support

HELD:
Yes. It is thus the policy of the Family Code to liberalize the rule on
the investigation of the paternity and filiation of children, especially of
illegitimate children. The State as parens patriae affords special
protection to children from abuse, exploitation and other conditions
prejudicial to their development. In the eyes of society, a child with an
unknown father bears the stigma of dishonor. It is to petitioner minor
child's best interests to allow him to bear the surname of the now
deceased Dominique and enter it in his birth certificate.
139. ANTONIO PERLA, Petitioner, v. MIRASOL BARING and
RANDY

PERLA,

Randy,

which

was

affirmed

by

CA.

ISSUE: Whether or not Randy is entitled for support from Antonio.

HELD:

The

petition

CIVIL

is

LAW:

meritorious.
support

Respondents.
Mirasol and Randys Complaint for support is based on Randys alleged

DEL

CASTILLO,

J.:

illegitimate filiation to Antonio. Hence, for Randy to be entitled for

support, his filiation must be established with sufficient certainty. The
Court has ruled that a high standard of proof is required to establish

FACTS:

paternity and filiation. An order for x xx support may create an

Respondent Mirasol Baring (Mirasol) and petitioner Antonio Perla

unwholesome situation or may be an irritant to the family or the lives

(Antonio) were allegedly neighbors. Eventually, they became

of the parties so that it must be issued only if paternity or filiation is

sweethearts. When Mirasol became pregnant, Antonio allegedly

established

by

clear

and

convincing

evidence.

assured her that he would support her. However, Antonio started to

evade

her.

In the case at bar, Mirasol and Randy failed to establish Randys

illegitimate filiation to Antonio. The Certificate of Live Birth and

Mirasol and her then minor son, Randy Perla (Randy), filed before the

baptismal certificate of Randy have no probative value to establish

Randys filiation to Antonio since the latter had not signed the same. A

141. Rosendo Herrera vs Rosendo Alba

certificate of live birth purportedly identifying the putative father is not

In May 1998, Armi Alba, mother of minor Rosendo Alba filed a suit
against Rosendo Herrera in order for the latter to recognize and
support Rosendo as his biological son. Herrera denied Armis
allegations. In the year 2000, the trial court ordered the parties to
undergo a (deoxyribonucleic acid )DNA testing to establish whether or
not Herrera is indeed the biological father of Rosendo Alba. However,
Herrera questioned the validity of the order as he claimed that DNA
testing has not yet garnered widespread acceptance hence any result
therefrom will not be admissible in court; and that the said test is
unconstitutional for it violates his right against self-incrimination.

competent evidence of paternity when there is no showing that the

putative father had a hand in the preparation of said certificate. Also,
while a baptismal certificate may be considered a public document, it
can only serve as evidence of the administration of the sacrament on
the date specified but not the veracity of the entries with respect to the
childs paternity. Thus, x xx baptismal certificates are per se
inadmissible in evidence as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence to prove the same.
REMEDIAL

LAW:

questions

of

ISSUE: Whether or not Herrera is correct.

HELD: No. It is true that in 1997, the Supreme Court ruled in Pe Lim
vs CA that DNA testing is not yet recognized in the Philippines and at
the time when he questioned the order of the trial court, the prevailing
doctrine was the Pe Lim case; however, in 2002 there is already no
question as to the acceptability of DNA test results as admissible
object evidence in Philippine courts. This was the decisive ruling in
the case of People vs Vallejo (2002).

fact

Generally, factual findings of trial courts, when affirmed by the CA,

are binding on the Court. However, this rule admits of certain
exceptions such as when the finding is grounded entirely on
speculations, surmises or conjectures or when the judgment of the CA

In the Vallejo Case, the Supreme Court recognized DNA analysis as

admissible evidence. On the other hand, as to determining the weight
and probative value of DNA test results, the Supreme Court provides,
which is now known as the Vallejo Guidelines:

is based on misapprehension of facts. As this case falls under these

exceptions, the Court is constrained to re-examine the factual findings
of

the

lower

courts.

In assessing the probative value of DNA evidence, therefore, courts

should consider, among other things, the following data:

Petition is GRANTED.
140. SALAS V MATUSALEM

1.

how the samples were collected,

2.

how they were handled,

3.

the possibility of contamination of the samples,

4.
5.

the procedure followed in analyzing the samples,

whether the proper standards and procedures were
followed in conducting the tests,

6.

and the qualification of the analyst who conducted the

tests.
The above test is derived from the Daubert Test which is a doctrine
adopted from US jurisprudence (Daubert v. Merrell Dow
Pharmaceuticals, Inc.) The Daubert Test is a test to be employed by
courts before admitting scientific test results in evidence. More
specifically, the Daubert Test inquires:

1.

Whether the theory or technique can be tested,

2.

Whether the proffered work has been subjected to peer review,

3.

Whether the rate of error is acceptable,

4.

Whether the method at issue enjoys widespread acceptance

In this case, the Supreme Court declared that in filiation cases, before
paternity inclusion can be had, the DNA test result must state that the
there is at least a 99.9% probability that the person is the biological
father. However, a 99.9% probability of paternity (or higher but
never possibly a 100% ) does not immediately result in the DNA test
result being admitted as an overwhelming evidence. It does not
automatically become a conclusive proof that the alleged father, in this
case Herrera, is the biological father of the child (Alba). Such result is
still a disputable or a refutable evidence which can be brought down if
the Vallejo Guidelines are not complied with.

What if the result provides that there is less than 99.9% probability
that the alleged father is the biological father?
Then the evidence is merely corroborative.
Anent the issue of self-incrimination, submitting to DNA testing is not
violative of the right against self-incrimination. The right against selfincrimination is just a prohibition on the use of physical or moral
compulsion to extort communication (testimonial evidence) from a
defendant, not an exclusion of evidence taken from his body when it
may be material. There is no testimonial compulsion in the getting
of DNA sample from Herrera, hence, he cannot properly invoke selfincrimination.

142. STATE OF ROGELIO ONG VS JOANNE RODGIN DIAZ

Posted by kaye lee on 2:28 PM
G.R.

No.

171713

December

17

2007

FACTS:
The Estate of Rogelio Ong opposed on the CA order directing the
Estate and Joanne Rodgin Diaz for DNA analysis for determining the
paternity of the minor Joanne. Trial court formerly rendered a decision
and declared the minor to be the illegitimate child of Rogelio Ong with
Jinky Diaz, and ordering him to support the child until she reaches the
age of majority. Rogelio died during the pendency of the case with the
CA. The Estate filed a motion for reconsideration with the CA. They
contended that a dead person cannot be subject to testing. CA justified
that "DNA paternity testing, as current jurisprudence affirms, would be
the most reliable and effective method of settling the present paternity
dispute."
ISSUE:
Whether or not DNA analysis can still be done despite the death of
Rogelio.

December 1991, a petition to have his marriage annulled on the ground

RULING:
Yes.
The death of Rogelio does not ipso facto negate the application of
DNA testing for as long as there exist appropriate biological samples
of his DNA. New Rules on DNA Evidence allows the conduct of DNA
testing by using biological samples--organic material originating from
the person's body, ie., blood, saliva, other body fluids, tissues, hair,
bones, even inorganic materials- that is susceptible to DNA testing.

of bigamy since the wife married a certain Mario Gopiao sometime in

In case proof of filiation or paternity would be unlikely to

satisfactorily establish or would be difficult to obtain, DNA testing,
which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent
could be resorted to. (People vs Umanito, citing Tecson vs Comelec
424 SCRA 277)

father of an illegitimate child. She further wanted to have the

143. DE VILLA V DIRECTOR

December 1980, whom according to the husband was still alive and
living in Loyola Heights, QC. Trial court ruled that the son was an
illegitimate child and the custody was awarded to the wife while
Gerardo was granted visitation rights. Theresa argued that there was
nothing in the law granting visitation rights in favor of the putative
surname of the son changed from Concepcion to Almonte, her
maiden name, since an illegitimate child should use his mothers
surname. After the requested oral argument, trial court reversed its
ruling and held the son to be not the son of Gerardo but of Mario.
Hence, the child was a legitimate child of Theresa and Mario.

144. LEE V REPUBLIC

145. Concepcion vs CA

HELD:

Concepcion vs. CA
GR No. 123450, August 31, 2005

Considering that Theresas marriage with Gerardo was void ab initio,

the latter never became the formers husband and never acquired any
right to impugn the legitimacy of the child. Theresas contention was

FACTS:

to have his son be declared as not the legitimate child of her and Mario
but her illegitimate child with Gerardo. In this case, the mother has no

Gerardo Concepcion, the petitioner, and Ma. Theresa Almonte, private

respondent, were married in December 1989, and begotten a child
named Jose Gerardo in December 1990. The husband filed on

right to disavow a child because maternity is never uncertain. Hence,

she is not permitted by law to question the sons legitimacy. Under
Article 167 of the Family Code, the child shall be considered
legitimate although the mother may have declared against its

legitimacy or may have been sentenced as an adulteress. Having the

best interest of the child in mind, the presumption of his legitimacy
was upheld by the Court. As a legitimate child, the son shall have the
right to bear the surnames of Mario and Theresa, in conformity with
the provisions of Civil Code on surnames. Gerardo cannot then
impose his surname to be used by the child, since in the eyes of the
law, the child is not related to him in any way.
146. SSS v. AGUAS
G.R. No. 165546 February 27, 2006.
CALLEJO, SR., J.

FACTS:
Pablo Aguas, a member and pensioner of the SSS died.
Pablos surviving spouse, Rosanna H. Aguas, filed a claim with the SSS
for death benefits on indicating in her claim that Pablo was survived
by his minor child, Jeylnn
Her claim for monthly pension was settled.
SSS received a sworn from Leticia Aguas-Macapinlac, Pablos sister,
contesting Rosannas claim for death benefits. She alleged that
Rosanna abandoned the family abode approximately more than 6 years
before, and lived with another man on whom she has been dependent
for support. She further averred that Pablo had no legal children with
Rosanna.
The SSC ruled that Rosanna was no longer qualified as primary
beneficiary.
CA reversed the SSC deicision and favored the respondents.

ISSUE:
W/N Rosanna, Jeylnn and Janet are entitled to the SSS death benefits
accruing from the death of Pablo
HELD: Petition is PARTIALLY GRANTED.
It bears stressing that under Article 164 of the Family Code, children
conceived or born during the marriage of the parents are legitimate.

Jeylnns claim is justified by the photocopy of her birth certificate

which bears the signature of Pablo. Petitioner was able to authenticate
the certification from the Civil Registry showing that she was born on
October 29, 1991. The records also show that Rosanna and Pablo were
married on December 4, 1977 and the marriage subsisted until the
latters death on December 8, 1996. It is therefore evident that Jeylnn
was born during Rosanna and Pablos marriage.
Impugning the legitimacy of a child is a strictly personal right of the
husband or, in exceptional cases, his heirs. In this case, there is no
showing that Pablo challenged the legitimacy of Jeylnn during his
lifetime.
The presumption that Jeylnn is a legitimate child is buttressed by her
birth certificate bearing Pablos signature, which was verified from his
specimen signature on file with petitioner. A birth certificate signed by
the father is a competent evidence of paternity.
For Rosanna, to qualify as a primary beneficiary, she must establish 2
qualifying factors: (1) that she is the legitimate spouse, and (2) that she
is dependent upon the member for support.
A wife who is already separated de facto from her husband cannot be
said to be "dependent for support" upon the husband, absent any
showing to the contrary. If it is proved that the were till living together
at the time of his death, it is presumed that she was dependent on the
husband for support, unless it is shown that she is capable of providing
for herself.
Only Jeylnn is entitled to the SSS death benefits as it was established
that she is his legitimate child. Records show that Janet was merely
"adopted" by the spouses, but there are no legal papers to prove it.
Rosanna was the legitimate wife of Pablo, she is likewise not qualified
as a primary beneficiary since she failed to present any proof to show
that at the time of his death, she was still dependent on him for support
even if they were already living separately. NOTE: Legitimacy cannot
be extended to other siblings.

147. DE SANTOS V COMELEC

148. Tecson vs. COMELEC , GR 16134 , March 3, 2004

cases directly brought before it, questioning the qualifications of a

FACTS: Petitioners questioned the jurisdiction of the COMELEC in

candidate for the presidency or vice-presidency before the elections

taking cognizance of and deciding the citizenship issue affecting

are held.

Fernando Poe Jr. They asserted that under Section 4(7) , Article VII of
the 1987 Constituition, only the Supreme Court had original and

149. MANGONON V. CA

exclusive jurisdiction to resolve the basic issue of the case.

ISSUE: As the Presidential Electoral Tribunal (PET) , does the

FACTS:

Supreme Court have jurisdiction over the qualifications of presidential

1) On 16 February 1975, petitioner and respondent Federico

candidates?

Delgado were civilly married by then City Court Judge

RULING: No. An examination of the phraseology in Rule 12, 13, and
Rule 14 of the "Rules of the Presidential Electoral Tribunal,"
promulgated by the Supreme Court on April 1992 categorically speak
of the jurisdiction of the tribunal over contests relating to the election,
returns and qualifications of the "President" or "Vice-President", of the
Philippines, and not of "candidates" for President or Vice-President. A

Eleuterio Agudo in Legaspi City, Albay. 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 by the Quezon City Juvenile and Domestic
Relations Court.

quo warranto proceeding is generally defined as being an action

against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office. In such context, the election contest can only

2) 25 March 1976, or within seven months after the annulment of

contemplate a post-election scenario. In Rule 14, only a registered

their marriage, petitioner gave birth to twins Rica and Rina.

candidate who would have received either the second or third highest

According to petitioner, she, with the assistance of her second

number of votes could file an election protest. This rule again

husband Danny Mangonon, raised her twin daughters as

presupposes

private respondents had totally abandoned them.

post-election

scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined

by Section 4, paragraph 7, of the 1987 Constitution, would not include

3) Rica and Rina were about to enter college in the United States

d) Neither can petitioners present husband be compelled

of America (USA) where petitioner, together with her

to share in the general support and college education

daughters and second husband, had moved to and finally

of Rica and Rina since he has his own son with

settled in. Rica was admitted to the University of

petitioner and own daughter (also in college) to attend

Massachusetts (Amherst) while Rina was accepted by the Long

to.

Island University and Western New England College. Despite

their admissions to said universities, Rica and Rina were,
however, financially incapable of pursuing collegiate education
because of the following:

have been rejected by the U.S.

a) The average annual cost for college education in the

US

is

about

e) Worse, Rica and Rinas petitions for Federal Student Aid

US$22,000/year

or

total

Department of Education.

of

US$44,000.00, more or less, for both Rica and Rina

4) On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in
behalf of her then minor children Rica and Rina, a Petition for
b) Rica and Rina need general maintenance support each in
the amount of US$3,000.00 per year or a total of

Declaration of Legitimacy and Support, with application for

support pendente lite with the RTC Makati

US$6,000 per year.

5) Petitioner averred that demands were made upon Federico and
the latters father, Francisco, for general support and for the
c) Unfortunately, petitioners monthly income from her 2
jobs is merely US$1,200 after taxes which she can
hardly give general support to Rica and Rina, much less
their required college educational support.

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.

respondent Francisco, as the next immediate relative of Rica and Rina,

is tasked to give support to his granddaughters in default of their
ISSUE:

parents, it having been established that respondent Francisco has the

Whether or not, respondent Francisco Delgado be held liable for her

granddaughters educational support

financial means to support his granddaughters education.

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

HELD:

case there is a moral or legal obstacle thereto.

ART. 199. Whenever two or more persons are obliged to give support,
the liability shall devolve upon the following persons in the order

The obligor is given the choice as to how he could dispense his

obligation to give support. Respondent Francisco and Federicos claim

herein provided:

that they have the option under the law as to how they could perform
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and

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. Thus, he may give the determined amount of
support to the claimant or he may allow the latter to stay in the family
dwelling. This option cannot be availed of in this case since there are

(4) The brothers and sisters.

circumstances, legal or moral, between respondent and petitioner

which should be considered.

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 but being restricted by their financial income-

Respondent Francisco is held 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,

thus the amount of support should be proportionate to the resources or

brokerage and freight forwarding. He is also the majority

means of the giver and to the necessities of the recipient.

stockholder and Chairman of the Board of Directors of

Citadel Shipping which does business with Hyundai of

The Decision of the Court of Appeals fixing the amount of

support pendente lite to P5,000.00 for Rebecca Angela and Regina
Isabel, are hereby MODIFIED in that respondent Francisco Delgado is
hereby held liable for support pendente lite in the amount to be
determined by the trial court pursuant to this Decision.
**Considering, however, that the twin sisters may have already been
done with their education by the time of the promulgation of this

Korea. Apart from these, he also owns the Citadel

Corporation which, in turn, owns real properties in different
parts of the country. He is likewise the Chairman of the
Board of Directors of Isla Communication Co. and he owns
shares of stocks of Citadel Holdings. In addition, he owns
real properties here and abroad. )
** What is SUPPORT PENDENTE LITE

decision, we deem it proper to award support pendente lite in arrears to

be computed from the time they entered college until they had finished

SECTION 1. Application.- At the commencement of the proper action

their respective studies.

or proceeding, or at any time prior to the judgment or final order, a

verified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both

NOTES:

parties, and accompanied by affidavits, depositions or other authentic

documents in support thereof.

**mayaman si lolo kasiiii

(respondent Francisco is the majority stockholder and

Chairman of the Board of Directors of Citadel Commercial,
Incorporated, which owns and manages twelve gasoline
stations, substantial real estate, and is engaged in shipping,

150. Salientes vs AbanillaGR No. 162734 August 29, 2006Facts:

Loran Abanilla and Marie Salientes are the parents of theminor, Lorenzo. They
loved with Marie's parents. Due to in-law problems, Abanilla suggested to his wife
that theytransfer to their own house, but Salientes refused. Abanillaleft the house,
and was thereafter prevented from seeing hisson.

Abanilla, in his personal capacity and as a representative of his son, filed a petition
for habeas corpus and custodybefore the RTC of Muntinlupa City. The trial court

orderedthe Salienteses to produce and bring before the court thebody of Lorenzo,
and to show cause why the child shouldnot be discharged from restraint.

Salienteses filed a petition for certiorari with the CA, but itwas dismissed. CA stated
that the order of the trial court didnot award custody but was simply a standard
order issuedfor the production of restrained persons. The trial court wasstill about to
conduct a full inquiry. A subsequent MR waslikewise denied.

Salienteses filed the current appeal by certiorari.Issue:1.Whether the CA erred

in dismissing the petition for certiorariagainst the trial court's
order2.Whether the remedy of the issuance of a writ of habeascorpus is
available to the fatherRuling:1. The CA rightfully dismissed the petition for
certiorari

Salientes:
o
the order is contrary to the Family Code whichprovides that no child under seven
years of age shallbe separated from the mother unless the court findscompelling
reasons to order otherwise
o
even assuming that there were compelling reasons,the proper remedy for private
respondent was simplyan action for custody, but not habeas corpus.Petitioners
assert that habeas corpus is unavailableagainst the mother who, under the law, has
the rightof custody of the minor. They insist there was noillegal or involuntary
restraint of the minor by hisown mother. There was no need for the mother
toshow cause and explain the custody of her very ownchild.

Abanilla:
o
the writ of habeas corpus is available against anyperson who restrains the minors
right to see hisfather and vice versa. He avers that the instantpetition is merely filed
for delay, for had petitionersreally intended to bring the child before the court
inaccordance with the new rules on custody of minors
o
under the law, he and petitioner Marie Antonettehave shared custody and parental
authority overtheir son. He alleges that at times when petitionerMarie Antonette is
out of the country as required of her job as an international flight stewardess, he,
thefather, should have custody of their son and not thematernal grandparents.

The CA was correct in holding that the order of the trialcourt did not
grant custody of the minor to any of theparties but merely directed petitioners to
produce the minorin court and explain why they are restraining his liberty. The
assailed order was an interlocutory order precedent tothe trial courts
full inquiry into the issue of custody, whichwas still pending before it.

an interlocutory order is not appealable but the aggrievedparty may file an

appropriate special action under Rule 65. The aggrieved party must show
that the court gravelyabused its discretion in issuing the interlocutory
order. Inthe present case, it is incumbent upon petitioners to showthat the trial court
gravely abused its discretion in issuingthe order.2. Habeas corpus is available
to the father

Habeas corpus may be resorted to in cases where rightfulcustody is withheld from a

person entitled thereto. UnderArticle 211 of the Family Code, respondent Loran
andpetitioner Marie Antonette have joint parental authority overtheir son and
consequently joint custody. Further, althoughthe couple is separated de facto, the
issue of custody hasyet to be adjudicated by the court. In the absence of a judicial
grant of custody to one parent, both parents are stillentitled to the custody
of their child. In the present case,private respondents cause of action is the
deprivation of hisright to see his child as alleged in his petition. Hence, theremedy
of habeas corpus is available to him.

Moreover, Article 213 of the Family Code deals with the judicial adjudication
of custody and serves as a guideline forthe proper award of custody by the
court. Petitioners canraise it as a counter argument for private respondentspetition
for custody. But it is not a basis for preventing thefather to see his own
child. Nothing in the said provisiondisallows a father from seeing or visiting his
child underseven years of age.

150. SALIENTES v. ABANILLA

Petitioner: Marie Antonette Abigail C. Salientes, Orlando B.

Salientes, and Rosario C. Salientes

Facts:

Respondent: Loran S.D. Abanilla, Honorable Judge Pedro

Sabundayo, Jr., Regional Trial Court, Branch 203, Muntinlupa

City.

Ponente: Quisumbing, J.

Short Facts and Doctrine/s: Loran and Marie are the parents of minor
Lorenzo. They lived together with the parents of Marie. Due to in-laws

problems Loran suggested they move to their own house. Marie

refused but Loran left anyway. Marie and her parents prevented Loran

from seeing his son. Loran filed this case for habeas corpus. Marie

contends that the petition for Habeas Corpus is not the appropriate
remedy and that she is entitled, under Art. 213 of the Family Code, to
the custody of the minor. Habeas Corpus may be resorted to in cases
where rightful custody is withheld from a person entitled thereto.
Under Article 211 of the Family Code, respondent Loran and petitioner

Marie have joint parental authority over their son and consequently
joint custody. In the present case, private respondents cause of action
is the deprivation of his right to see his child as alleged in his petition.
Hence, the remedy of habeas corpus is available to him. Article 213 of

the Family Code deals with the judicial adjudication of the custody
and serves as a guideline for the proper award of custody by the court.
It is not a basis for preventing the father to see his own child.

Loran Abanilla (Loran) and Marie Antonette Abigail Salientes

(Marie) are the parents of the minor Lorenzo Emmanuel Abanilla,
who was at the time two years old.
The couple lived together with Maries parents, petitioners Orlando
and Rosario Salientes. Due to in-laws problems, Loran suggested
that they transfer to their own house. Marie refused. Loran left
anyway and was thereafter prevented from seeing his son.
Loran filed a petition for Habeas Corpus and Custody in the RTC
of Muntinlupa City.
The court ordered Marie and her parents to produce and bring
before the court the body of the minor Lorenzo in order to show
cause why the said child should not be discharged from restraint.
Marie moved for a reconsideration of the above order which was
denied
She then filed a petition for certiorari with the CA which was also
dismissed. The CA held that the order of the RTC did not award to
anyone the custody of the Lorenzo, the order merely directs
petitioners to produce the Lorenzo in order for the trial court to
conduct a full inquiry in the matter of his custody. This is a mere
interlocutory order which is not appealable.
Hence this appeal by certiorari.
Marie and her parents contend that the order is contrary to Article
213 of the Family Code which provides that no child under seven
years of age shall be separated from the mother unless the court
finds compelling reasons to order otherwise. They maintain that
Loran has failed to present any evidence of any compelling reason.
They also argue, that assuming that there were compelling reasons,
the proper remedy of Loran was not habeas corpus but a simple
action for custody. They assert that habeas corpus is unavailable
against the mother who, under the law, has the right of custody of
the minor.
Loran, on the other hand argues that Art. 213 applies only to the
second part of his petition regarding the custody of his son. It does

not address the first part, which pertains to his right as the father to
see his son. He asserts that a writ of habeas corpus is available
against any person who restrains the minors right to see his father
and vice versa. He also asserts that the complaints filed by Marie
were merely for delay.
Loran also maintains that, under the law, both him and Marie share
custody of Lorenzo and when Marie is out of the country, as
required by her job as an international flight stewardess, he should
have the custody of Lorenzo and not the maternal grandparents.

Issue:
W/N Habeas Corpus was the appropriate remedy.

Ruling:
Yes.

Although the couple is separated de facto, the issue of custody

has yet to be adjudicated by the court. In the absence of a
juridical grant of custody to one parent, both parents are still
entitled to the custody of their child.
In the present case, private respondents cause of action is the
deprivation of his right to see his child as alleged in his
petition. 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, among others, of the child, his welfare shall be the
paramount consideration.
The order of the court to produce the body of the minor before
the court was merely in line with the directive contained in
Section 9 of A.M. 03-04-04-SC.
Moreover, Article 213 of the Family Code deals with the
judicial adjudication of the custody and serves as a guideline
for the proper award of custody by the court. It is not a basis
for preventing the father to see his own child.
Disposition: WHEREFORE, the petition is DENIED. The Decision
dated November 10, 2003 and the Resolution dated March 19,

Ratio:
Habeas Corpus may be resorted to in cases where rightful custody is
withheld from a person entitled thereto.

Under Article 211 of the Family Code, respondent Loran and

petitioner Marie Antonette have joint parental authority over
their son and consequently joint custody.

2004 of the CA in CA-G.R. SP No. 75680 are AFFIRMED. Costs

against petitioners. SO ORDERED.