EN BANC
'
[G.R. No. L-26953. March 28, 1969.]
ZENAIDA MEDINA, assisted by her husband, FELICIANO CASERO, petitioner-appellant, vs. DRA.
VENANCIA L. MAKABALI, respondent-appellee.
Fausto D. Laguian for petitioner-appellant.
Maximino Q. Canlas for respondent-appellee.
SYLLABUS
1.CIVIL LAW; PERSONS AND FAMILY RELATIONS; CARE AND CUSTODY OF CHILDREN; MINOR'S WELFARE SHALL BE
PARAMOUNT; RATIONALE. While our law recognizes the right of a parent to the custody of her child, Courts must not lose
sight of the basic principle that "in all questions on the care, custody, education and property of children, the latter's welfare
shall be paramount" (Art. 363, Civil Code,) and that for compelling reasons, even a child under seven may be ordered
separated from the mother. This is as it should be, for in the continual evolution of legal institutions, the patria potestas has
been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually
a chattel of his parents, into a radically different institution, due to the influence of Christian faith and doctrines. The
obligational aspect is now supreme. As pointed out by Puig Pea, now "there is no power, but a task; no complex of rights (of
parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor.
2.ID.; ID.; ID.; ANCILLIARY TO PROPER DISCHARGE OF PARENTAL DUTIES; INSTANT CASE. The right of parents to the company
and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate
support, education, moral, intellectual and civic training and development (Art. 356, Civil Code). As remarked by the Court
below, petitioner Zenaida Medina proved remiss in these sacred duties; she not only failed to provide the child with love and
care but actually deserted him, with not even a visit, in his tenderest years, when he needed his mother the most. It may well
be doubted what advantage the child could derive from being coerced to abandon respondent's care and love to be compelled
to stay with his mother and witness her irregular menage a trois with Casero and the latter's legitimate wife.
DECISION
REYES, J.B.L., J p:
Once more Courts are asked to arbitrate between rights and duties of parents and children, and between parent and foster
parent.
Appellant's claim for custody of a minor boy, Joseph Casero, was sought to be enforced by habeas corpus proceedings in the
Court of First Instance of Pampanga, in its Special Proceeding No. 1947. After hearing, the writ was denied by the Court, and
the case was appealed directly to this Supreme Court exclusively on points of law.
Uncontested facts found by the Court below are that on February 4, 1961, petitioner Zenaida Medina gave birth to a baby boy
named Joseph Casero in the Makabali Clinic in San Fernando, Pampanga, owned and operated by respondent Dra. Venancia
Makabali, single, who assisted at the delivery. The boy was Zenaida's third, had with a married man, Feliciano Casero.
The mother left the child with Dra. Makabali from his birth. The latter took care and reared Joseph as her own son; had him
treated at her expense for poliomyelitis by Dra. Fe del Mundo, in Manila, until he recovered his health; and sent him to school.
From birth until August 1966, the real mother never visited her child, and never paid for his expenses.
The trial disclosed that petitioner Zenaida Medina lived with Feliciano Casero with her two other children apparently with the
tolerance, if not the acquiescence, of Casero's lawful wife who resides elsewhere, albeit the offspring of both women are in
good terms with each other; that Casero makes about P400.00 a month as a mechanic, and Zenaida herself earns from 4 to 5
pesos a day.
"The Court, upon calling Joseph on the witness stand, observed that the boy is fairly intelligent as a
witness. He never knew his mother, Zenaida. He was calling the respondent his 'Mommy.' The Court
informed him that his real mother is Zenaida. He was asked with whom to stay with his real
mother or the respondent. The boy pointed to the respondent and said 'Mommy!' The Court asked
him, 'Why do you choose to stay with your "Mommy?", He answered, "She is the one rearing me.
This confrontation was made in the presence of the two women, Zenaida, the petitioner, and the
respondent, Dra. Makabali, in open court." (C.F.I. Rollo, p. 39)
After extracting from Dra. Makabali a promise to allow the minor a free choice with whom to live when he reaches the age of
14, the Court held that it was for the child's best interest to be left with his foster mother, and denied the writ prayed for. The
real mother appealed, as already stated.
We see no reason to disturb the order appealed from. While our law recognizes the right of a parent to the custody of her
child, Courts must not lose sight of the basic principle that "in all questions of the care, custody, education and property of
children, the latter's welfare shall be paramount" (Civil Code of the Philippines, Art. 363), and that for compelling reasons, even
a child under seven may be ordered separated from the mother (Do.). This is as it should be, for in the continual evolution of
legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman
law, under which the offspring was virtually a chattel of his parents, into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pea, now "there is no power,
but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the
minor." 1
As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental
duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil
Code, Art. 356). As remarked by the Court below, petitioner Zenaida Medina proved remiss in these sacred duties; she not only
failed to provide the child with love and care but actually deserted him, with not even a visit, in his tenderest years, when he
needed his mother the most. It may well be doubted what advantage the child could derive from being coerced to abandon
respondent's care and love to be compelled to stay with his mother and witness her irregular menge a trois with Casero and
the latter's legitimate wife.
It is hinted that respondent's motivation in refusing to surrender the boy is to coerce petitioner to pay for the rearing of the
child. This is not acceptable, for Dra. Makabali knew (at least at the trial) that any expectation on her part is illusory, given
Zenaida's meager resources, yet expressed willingness to care and educate him.
No abuse of discretion being shown, out on the contrary, the appealed order being justified in fact and law, we hold that said
order should be, and hereby is, affirmed. Costs against appellant.
EN BANC
[G.R. No. L-23253. March 28, 1969.]
IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR THE
ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA, petitioner-appellant, vs. MR. & MRS.
BARTOLOME CABANGBANG, ET AL., respondents-appellees.
Francisco R. Sotto and Associate for petitioner-appellant.
Teofilo F . Manalo for respondent-appellee Mr. & Mrs. Cabangbang.
Enrico R. Castro for respondent-appellee Victor T. Villareal.
SYLLABUS
1.CIVIL LAW; PARENTAL AUTHORITY OVER CHILD; POWER OF COURTS TO DEPRIVE PARENTS OF PARENTAL AUTHORITY OVER
THEIR CHILD. While in one breath, Art. 313 of the Civil Code lays down the rule that "Parental authority cannot be
renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession,
" it indicates in the next that "The courts may, in cases specified by law, deprive parents of their (parental) authority."
2.ID.; ID.; ID.; CASE AT BAR. The reasons that "petitioner is not exactly an upright woman" and "it will be for the welfare of
the child" are not, strictly speaking, proper grounds in law to deprive a mother of her inherent right to parental authority over
her child.
3.ID.; ID.; ID.; ABANDONMENT AS ONE OF SAID GROUNDS. Under Art. 332, abandonment is one of the grounds for depriving
parents of parental authority over their children. To our mind, however, mere acquiescence - without more - is not sufficient to
constitute abandonment.
4.ID.; ID.; ID.; ID.; INSTANT CASE. The record yields a host of circumstances which, in their totality, unmistakably betray the
petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental
claim in respect to the child. She continuously shunned the natural and legal obligations which she owed to the child;
completely withheld her love, her care, and the opportunity to display maternal affection; and totally denied her support and
maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total
relinquishment of parental claim over her, can and should be inferred as a matter of law.
5.ID.; CUSTODY OF MINOR CHILDREN; AWARD OF CUSTODY OF CHILD TO STRANGER, WHEN PROPER. The absence of any
kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them.
Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the
father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de
facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the
child, "the court may either designate the paternal or maternal grandparents of the child, or his oldest brother or sister, or
some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or
benevolent society."
6.ID.; ID.; ID.; PROVISIONS OF LAW INVOLVED EXPLAINED. Sections 6 and 7 of Rule 99 of the Rules of Court belie the
petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that "In all questions on the care,
custody, education and property of children, the latter's welfare shall be paramount . . . " applies only when the litigation
involving a child is between the father and the mother. That the policy enunciated in the abovequoted legal provision is of
general application, is evident from the use of adjective all meaning, the whole extent or quantity of, the entire number of,
every one of (Webster's New World Dictionary of the American Language, College Edition, 1959, ed., p. 38).
7.ID.; ID.; ID.; SUIT BETWEEN PARENTS AND STRANGER OVER CUSTODY OF CHILD CONTEMPLATED UNDER RULES INVOLVED.
It is error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must necessarily award
such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among other, a suit between a parent
and a stranger who, in the words of the provision, is "some reputable resident of the province." And under the authority of the
said rule, the court if it is for the best interest of the child - may take the child away from its parents and commit it to, inter
alia, a benevolent person.
8.REMEDIAL LAW; WRIT OF HABEAS CORPUS; COVERAGE. Sec. 1, Rule 102 of the Rules of Court provides that "Except as
otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled
thereto."
9.ID.; ID.; PETITION THEREFOR WAS CORRECTLY DISMISSED IN INSTANT CASE. The petitioner has not proven that she is
entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and completely
shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and
moral claim to her custody. The lower court acted correctly in dismissing her petition.
DECISION
CASTRO, J p:
This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of First Instance of Rizal dismissing Pacita
Chua's petition for habeas corpus directed against Bartolome Cabangbang and his wife Flora Cabangbang.
Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as a hostess. And sexual liaison she
had with man after man without benefit of marriage. She first lived with a certain Chua Ben in 1950 by whom she had a child
who died in infancy. She afterwards cohabited with Sy Sia Lay by whom she had two children named Robert and Betty Chua Sy.
The latter child was born on December 15, 1957. Shortly after the birth of Betty, Pacita Chua and Sy Sia Lay separated. Finding
no one to fall back on after their separation, Pacita Chua lingered in and around nightclubs and gambling joints, until she met
Victor Tan Villareal. In due time she became the latter's mistress. In 1960 another child, a girl, was born to her. In 1961 when
this last child was still an infant, she and Villareal separated. Without means to support the said child, Pacita Chua gave her
away to a comadre in Cebu.
Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple, acquired the custody of the child Betty who
was then barely four months old. They have since brought her up as their own. They had her christened as Grace Cabangbang
on September 12, 1958. 1
There is some testimonial conflict on how the Cabangbang spouses acquired custody of the girl Betty (or Grace). Pacita Chua
avers that in 'October 1958, while she and Villareal were still living together, the latter surreptitiously took the child away and
gave her to the Cabangbangs, allegedly in recompense for favors received. She supposedly came to know of the whereabouts
of her daughter only in 1960 when the girl, who was then about three years old, was brought to her by Villareal, who shortly
thereafter returned the child to the Cabangbangs allegedly thru threats, intimidation, fraud and deceit. The Cabangbang
spouses assert in rebuttal that Mrs. Cabangbang found the child, wrapped in a bundle, at the gate of their residence; that she
reared her as her own and grew very fond of her; and that nobody ever molested them until the child was 5-1/2 years of age.
At all events, it is the lower court's finding that the child was given to the Cabangbang spouses by Villareal with the knowledge
and consent of Pacita Chua.
By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy furnished to Villareal, Pacita Chua thru counsel
demanded the surrender to her of the custody of the child. Failing to secure such custody, Pacita Chua (hereinafter referred to
as the petitioner) filed on June 14, 1963 a petition for habeas corpus with the Court of First Instance of Rizal, praying that the
court grant her custody of and recognize her parental authority over the girl. Named respondents in the petition were Villareal
and the spouses Cabangbang.
On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any of his deputies to produce the body of
Betty Chua Sy or Grace Cabangbang before the court a quo on June 17, 1963, at 8:30 a.m. However, for reasons not stated in
the record, the child was not produced before the lower court as ordered.
On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed their answer the next day.
After due trial, the lower court on May 21, 1964 promulgated its decision, the dispositive portion of which reads as follows:
"IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be for the welfare of
the child Betty Chua Sy also known as Grace Cabangbang to be under the custody of respondents
Mr. and Mrs. Bartolome Cabangbang. Petition dismissed. No pronouncement as to costs."
In this appeal now before us, the petitioner tenders for resolution two issues of law which, by her
own formulation, read as follows: "The lower court erred when it [1] awarded the custody of
petitioner's daughter Betty Chua Sy or Grace Cabangbang, who is less than seven (7) years old, in
favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2] illegally deprived petitioner of
parental authority over her daughter."
We resolve both issues against the petitioner.
I.
Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in Article 363 of the Civil Code she cannot
be separated from her child who was less than seven years of age, and that she cannot be deprived of her parental authority
over the child because not one of the grounds for the termination, loss, suspension or deprivation of parental authority
provided in Article 332 of the same Code obtains in this case.
Whether the petitioner can be legally separated from her child, Betty Chua Sy or Grace Cabangbang, is an issue that is now
moot and academic. Having been born on December 15, 1957, the child is now 11 years of age. Consequently, the second
paragraph of Art. 363 of the Civil Code, which prohibits the separation of a child under seven years of age from her mother,
"unless the court finds compelling reasons for such measure," has no immediate relevance.
The petitioner correctly argues, however, that the reasons relied upon by the lower court i.e., "petitioner is not exactly an
upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper grounds in law to deprive a
mother of her inherent right to parental authority over her child. It must be conceded that minor children be they
legitimate, recognized natural, adopted, natural by legal fiction or illegitimate, other than natural as specified in Art. 269 of the
Civil Code are by law under the parental authority of both the father and the mother, or either the father or the mother, as
the case may be. But we take the view that on the basis of the aforecited seemingly unpersuasive factual premises, the
petitioner can be deprived of her parental authority. For while in one breath Art. 313 of the Civil Code lays down the rule that
"Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts,
or emancipation by concession," it indicates in the next that "The courts may, in cases specified by law, deprive parents of their
[parental] authority." And there are indeed valid reasons, as will presently be expounded, for depriving the petitioner of
parental authority over the minor Betty Chua Sy or Grace Cabangbang.
It is the lower court's finding that the child was given to the Cabangbangs by Villareal with the knowledge and consent of the
petitioner. In support of this finding, it cited the facts that the petitioner did not at all not ever report to the authorities
the alleged disappearance of her daughter, and had not been taken any step to see the child when she allegedly discovered
that she was in the custody of the Cabangbangs. It discounted the petitioner's claim that she did not make any move to recover
the child because the Cabangbangs are powerful and influential. The petitioner is bound by the foregoing findings of fact.
Having taken her appeal directly to this Court, she is deemed to have waived the right to dispute any finding of fact made by
the trial court. 2
Art. 332 of the Civil Code provides, inter alia:
"The courts may deprive the parents of their authority or suspend the exercise of the
same if they should treat their children with excessive harshness or should give them
corrupting orders, counsels, or examples, or should make them beg or abandon them."
(emphasis supplied)
Abandonment is therefore one of the grounds for depriving parents of parental authority over their children.
Was the petitioner's acquiescence to the giving by Villareal of her child to the Cabangbangs tantamount to abandonment of
the child? To our mind, mere acquiescence without more is not sufficient to constitute abandonment. But the record
yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to
completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child.
She surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the lapse of a period of
five long years, before she brought action to recover custody. Her claim that she did not take any step to recover her child
because the Cabangbangs were powerful and influential, does not deserve any modicum of credence. A mother who really
loves her child would go to any extent to be reunited with her. The natural and normal reaction of the petitioner once
informed, as she alleged, that her child was in the custody of the Cabangbangs should have been to move heaven and earth,
to use a worn-out but still respectable cliche, in order to recover her. Yet she lifted not a finger.
It is a matter of record being the gist of her own unadulterated testimony under oath that she wants the child back so
that Sy Sia Lay, the alleged father, would resume providing the petitioner the support which he peremptorily withheld and
ceased to give when she gave the child away. A woman scorned, she desires to recover the child as a means of embarrassing
Villareal who retrieved the jeep he gave her and altogether stopped living with and supporting her. But the record likewise
reveals that at the pre-trial conducted by the court a quo, she expressed her willingness that the child remain with the
Cabangbangs provided the latter would in exchange give her a jeep and some money.
The petitioners's inconsistent demands in the course of the proceedings below, reveal that her motives do not flow from the
wellsprings of a loving mother's heart. Upon the contrary, they are unmistakably selfish nay, mercenary. She needs the child
as a leverage to obtain concessions financial and otherwise either from the alleged father or the Cabangbangs. If she gets
the child back, support for her would be forthcoming or so she thinks from the alleged father, Sy Sia Lay. On the other
hand, if the Cabangbangs would keep the child, she would agree provided they gave her a jeep and some money.
Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to abandon the child from the very
outset when she allowed Villareal to give her away to the Cabangbangs. It must be noted that the abandonment took place
when the child, barely four months old, was at the most fragile stage of life and needed the utmost care and solicitude of her
mother. And for five long years thereafter she did not once move to recover the child. She continuously shunned the natural
and legal obligations which she owed to the child; completely withheld her presence, her love, her care, and the opportunity to
display maternal affection; and totally denied her support and maintenance. Her silence and inaction have been prolonged to
such a point that her abandonment of the child and her total relinquishment of parental claim over her, can and should be
inferred as a matter of law. 3
Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up her youngest
child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it.
Of incalculable significance is the fact that nowhere in the course of the petitioner's lengthy testimony did she ever express a
genuine desire to recover her child Betty Chua Sy or Grace Cabangbang or, for that matter, her other child Betty Tan
Villareal because she loves her, cares for her, and wants to smother her with motherly affection. Far from it. She wants
Betty Chua Sy or Grace Cabangbang back so that the alleged father would resume giving her (the petitioner) support. She
wants her back to humiliate and embarrass the respondent Villareal who, with her knowledge and consent, gave the child to
the Cabangbangs. But "most unkindest cut of all!" she nevertheless signified her readiness to give up the child, in
exchange for a jeep and some money.
We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a ground which the court overlooked
i.e.,abandonment by the petitioner of her child. 4
Contrast the petitioner's attitude with that of the respondents Cabangbang especially the respondent Flora Cabangbang
who, from the moment the child was given to them, took care of her as if she were her own flesh and blood, had her baptized,
and when she reached school age enrolled her in a reputable exclusive school for girls.
Ironically enough, the real heart-rending tragedy in this case would consist not in taking the child away from the Cabangbangs
but in returning her to the custody of the petitioner.
For, by her own admission, the petitioner has no regular source of income, and it is doubtful, to say the very least, that she can
provide the child with the barest necessities of life, let alone send her to school. There is no assurance at all that the alleged
father, Sy Sia Lay an unknown quantity, as far as the record goes would resume giving the petitioner support once she
and the child are reunited. What would then prevent the petitioner from again doing that which she did before, i.e., give her
away? These are of course conjectures, but when the welfare of a helpless child is at stake, it is the bounden duty of courts
which they cannot shirk to respect, enforce, and give meaning and substance to a child's natural and legal right to live and
grow in the proper physical, moral and intellectual environment. 5
This is not to say that with the Cabangbang spouses, a bright and secure future is guaranteed for her. For life is beset at every
turn with snares and pitfalls. But the record indubitably pictures the Cabangbang spouses as a childless couple of consequence
in the community, who have given her their name and are rearing her as their very own child, and with whom there is every
reason to hope she will have a fair chance of normal growth and development into respectable womanhood.
Verily, to surrender the girl to the petitioner would be to assume quite incorrectly that only mothers are capable of
parental love and affection. Upon the contrary, this case precisely underscores the homiletic admonition that parental love is
not universal and immutable like a law of natural science.
II.
The petitioner assails as illegal and without basis the award of the custody of Grace Cabangbang or Betty Chua Sy to the
Cabangbang spouses upon the grounds, first, that the couple are not related by consanguinity, or affinity to the child, and
second, because the answer of the spouses contains no prayer for the custody of the child.
The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding
her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as
 against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated
either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody
and control of the child, "the court may either designate the paternal or maternal grandparent of the child, or his oldest
brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum,
children's home, or benevolent society." 6
Parenthetically, Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art.
363 of the Civil Code, which states that.
"In all questions on the care, custody, education and property of
children, the latter's welfare shall be paramount . . ."
applies only when the litigation involving a child is between the father and the mother. That the policy
enunciated in the abovequoted legal provision is of general application, is evident from the use of the
adjective all meaning, the whole extent or quantity of, the entire number of, every of. 7 It is, therefore,
error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must
necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates,
among others, a suit between a parent and a stranger who, in the words of the provision, is "some
reputable resident of the province." And under the authority of the said rule, the court if it is for the best
interest of the child may take the child away from its parents and commit it to, inter alia, a benevolent
person.
The petitioner's contention that the answer of the spouses Cabangbang contains no prayer for the retention by them of the
custody of the child, is equally devoid of merit. The several moves taken by them are clear and definitive enough. First, they
asked for her custodypendente lite. Second, they sought the dismissal of the petition below for lack of merit. Finally, they
added a general prayer for other reliefs just and equitable in the premises. Surely the above reliefs prayed for are clearly
indicative of the Cabangbangs' genuine desire to retain the custody of Betty Chua Sy or Grace Cabangbang.
III.
Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas
corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which
the rightful custody of any person is withheld from the person entitled thereto." The petitioner has not proven that she is
entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and completely
shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and
moral claim to her custody. The lower court acted correctly in dismissing her petition.
ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs.
Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano, Teehankee and Barredo, JJ ., concur.

 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[.] . . . [O]n
April 3, 2002, . . . [the] Judge awarded custody pendente lite of the child to [Crisanto.] [T]he Order
partly read . . .:
'. . . Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor
child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was
THIRD DIVISION enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he has failed to
[G.R. No. 154994. June 28, 2005.] see his child. [Joycelyn] and the child are at present staying with the former's' step-
JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO father at the latter's [residence] at Caminawit, San Jose, Occidental Mindoro. AaCEDS
GUALBERTO V, respondent. 'Renato Santos, President of United Security Logistic testified that he was commissioned
[G.R. No. 156254. June 28, 2005.] by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the conclusion that
CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF [she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu City.
APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial 'The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of
Court Paraaque City, Branch 260; and JOYCELYN D. PABLO- the spouses who stated that [the mother] does not care for the child as she very often
GUALBERTO,respondents. goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.
DECISION 'Art. 211 of the Family Code provides as follows:
PANGANIBAN, J p: 'The father and the mother shall jointly exercise parental authority over the
When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often over the persons of their children. In the case of disagreement, the father's decision
custody of their children. The Court is now tasked to settle the opposing claims of the parents for custody pendente lite of their shall prevail, unless there is a judicial order to the contrary.'
child who is less than seven years of age. There being no sufficient proof of any compelling reason to separate the minor from 'The authority of the father and mother over their children is exercised jointly. This
his mother, custody should remain with her. recognition, however, does not place her in exactly the same place as the father; her
The Case authority is subordinated to that of the father.
Before us are two consolidated petitions. The first is a Petition for Review 1 filed by Joycelyn Pablo-Gualberto under Rule 45 of 'In all controversies regarding the custody of minors, the sole and foremost
the Rules of Court, assailing the August 30, 2002, Decision 2 of the Court of Appeals (CA) in CA-GR SP No. 70878. The assailed consideration is the physical, educational, social and moral welfare of the child, taking
Decision disposed as follows: into account the respective resources and social and moral situations of the contending
"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The assailed parties.
Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the child is hereby 'The Court believes that [Joycelyn] had no reason to take the child with her. Moreover,
ordered returned to [Crisanto Rafaelito G. Gualberto V]. per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro.
"The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioner's] 'WHEREFORE, pendente lite, the Court hereby awards custody, of the minor, Crisanto
motion to lift the award of custodypendente lite of the child to [respondent]." 3 Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto, V.'
The second is a Petition for Certiorari 4 filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of Court, charging the ". . . [O]n April 16, 2002, the hearing of [Joycelyn's] motion to lift the award of custody pendente
appellate court with grave abuse of discretion for denying his Motion for Partial Reconsideration of the August 30, 2002 lite of the child to [Crisanto] was set but the former did not allegedly present any evidence to
Decision. The denial was contained in the CA's November 27 2002 Resolution, which we quote: support her motion. However, on May 17, 2002, [the] Judge allegedly issued the assailed Order
"We could not find any cogent reason why the [last part of the reversing her Order of April 3, 2002 and this time awarding custody of the child to [Joycelyn]. [T]he
dispositive portion of our Decision of August 30, 2002] should be entire text of the Order [is] herein reproduced, to wit:
deleted, hence, subject motion is hereby DENIED." 5 'Submitted is [Crisanto's] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyn's]
The Facts Motion to Dismiss and the respective Oppositions thereto.
The CA narrated the antecedents as follows: '[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to in the
. . . [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo Gualberto.
Paraaque City] a petition for declaration of nullity of his marriage to . . . Joycelyn D. Pablo [Joycelyn] knows she is the person referred to in the Complaint. As a matter of fact, the body of the
Gualberto, with an ancillary prayer for custody pendente lite of their almost 4-year-old son, minor Complaint states her name correct[ly]. The law is intended to facilitate and promote the
Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with her from the conjugal administration of justice, not to hinder or delay it. Litigation should be practicable and convenient.
home and his school (Infant Toddler's Discovery Center in Paraaque City) when [she] decided to The error in the name of Joycelyn does not involve public policy and has not prejudiced [her].
abandon [Crisanto] sometime in early February 2002[:] . . . [O]n April 2, 2002, [RTC Judge Helen B. 'This case was filed on March 12, 2002. Several attempts were made to serve summons on
Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente lite. . . . [B]ecause [Joycelyn] [Joycelyn] as shown by the Sheriff's returns. It appears that on the 4th attempt on March 21, 2002,
both Ma. Daisy and . . . Ronnie Nolasco, [Joycelyn's mother and stepfather, respectively,] read the
contents of the documents presented after which they returned the same. DHSEcI
'The Court believes that on that day, summons was duly served and this Court acquired jurisdiction
over [Joycelyn].
'The filing of [Joycelyn's annulment] case on March 26, 2002 was an after thought, perforce the
Motion to [D]ismiss should be denied.
'The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under
Article 213 of the Family Code, he shall not be separated from his mother unless the Court finds
compelling reasons to order otherwise. The Court finds the reason stated by [Crisanto] not [to] be
compelling reasons. The father should however be entitled to spend time with the minor. These do
not appear compelling reasons to deprive him of the company of his child.
'When [Joycelyn] appeared before this Court, she stated that she has no objection to the father
visiting the child even everyday provided it is in Mindoro.
'The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P. Gualberto, with
[the] right of [Crisanto] to have the child with him every other weekend.
'WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with the
right of the father, . . . [Crisanto], to have him every other week-end.
3. Parties are admonished not to use any other agencies of the government like the CIDG
to interfere in this case and to harass the parties.' " 6
In a Petition for Certiorari 7 before the CA, Crisanto charged the Regional Trial Court (Branch 260) of Paraaque City with grave
abuse of discretion for issuing its aforequoted May 17, 2002 Order. He alleged that this Order superseded, without any factual
or legal basis, the still valid and subsisting April 3, 2002 Order awarding him custody pendente lite of his minor son; and that it
violated Section 14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisanto's favor the CA ruled that grave abuse of discretion had been committed by the trial court in reversing the
latter court's previous Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The appellate court explained
that the only incident to resolve was Joycelyn's Motion to Dismiss, not the issuance of the earlier Order. According to the CA,
the prior Order awarding provisional custody to the father, should prevail, not only because it was issued after a hearing, but
also because the trial court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from considering and resolving Joycelyn's Motion to
lift the award of custody pendente lite to Crisanto, as that Motion had yet to be properly considered and ruled upon. However,
it directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions. 8
Issues
In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:
"1. Whether or not the Respondent Court of Appeals, when it awarded the
custody of the child to the father, violated Art. 213 of the Family Code, which
mandates that 'no child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order otherwise.'
"2. Is it Article 213 or Article 211 which applies in this case involving four-year old
Rafaello?" 9
On the other hand, Crisanto raises the following issues:
"A. Did Respondent Court commit grave abuse of discretion amounting to or in
excess of jurisdiction when, in its August 30, 2002 Decision, it ordered
respondent court/Judge 'to consider, hear and resolve the motion to lift award
of custody pendente lite of the child to petitioner and . . . denied the motion for
reconsideration thereof in its November 27, 2002 Resolution, considering that:
(1) there is no such motion ever, then or now pending, with the court a quo; (2)
the November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002
Order of respondent Judge, the validity of which has been upheld in the August
30, 2002 Decision of the respondent Court, has become final and executory;
and HEDCAS
"B. Ought not the ancillary remedies [o]f habeas corpus, because the
whereabouts, physical and mental condition of the illegally detained Minor
Rafaello is now unknown to petitioner and preliminary mandatory injunction
with urgent prayer for immediate issuance of preliminary [injunction], petitioner
having a clear and settled right to custody of Minor Rafaello which has been
violated and still is being continuously violated by [petitioner Joycelyn], be
granted by this Honorable Court?" 10
Being interrelated, the procedural challenges and the substantive issues in the two Petitions will be addressed jointly.
The Court's Ruling
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue. In GR No. 154994,
therein Respondent Crisanto contends that the Petition for Review was filed beyond the deadline (October 24, 2002) allowed
by the Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition was sent by speed mail, only
on November 4, 2002. Furthermore, he, assails the Petition for its prematurity, since his Motion for Partial Reconsideration of
the August 30, 2002 CA Decision was still pending before the appellate court. Thus, he argues that the Supreme Court has no
jurisdiction over Joycelyn's Petition.
Timeliness of the Petition
The manner of filing and service Joycelyn's Petition by mail is governed by Sections 3 and 7 of Rule 13 of the Rules of Court,
which we quote:
"SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices,
orders, judgments and all other papers shall be made by presenting the original copies
thereof, plainly indicated as such personally to the clerk of court or by sending them by
registered mail. . . . In the second case, the date of mailing of motions, pleadings and
other papers or payments or deposits, as shown by the post office stamp on the envelope
or the registry receipt, shall be considered as the date of their filing, payment, or deposit
in court. The envelope shall be attached to the records of the case.
xxx xxx xxx
"SEC. 7. Service by mail. Service by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at
his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and
with instructions to the postmaster to return the mail to the sender after ten (10) days if
 undelivered. If no registry service is available in the locality of either the sender of the
addressee, service may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CA's August 30, 2002 Decision on September 9, 2002. On September 17, she
filed before this Court a Motion for a 30-day extension of time to file a petition for review on certiorari. This Motion was
granted, 11 and the deadline was thus extended until October 24, 2002. EcICDT
A further perusal of the records reveals that copies of the Petition were sent to this Court and to the parties by registered
mail 12 at the Bian, Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face of the
envelope 13 and attested to in the Affidavit of Service 14 accompanying the Petition. Petitioner Joycelyn explained that the
filing and the service had been made by registered mail due to the "volume of delivery assignments and the lack of a regular
messenger. " 15
The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as shown by the post office
stamp on the envelope. The last sentence of Section 3 of Rule 13 of the Rules provides that the date of filing may be
shown either by the post office stamp on the envelope or by the registry receipt. Proof of its filing, on the other hand, is shown
by the existence of the petition in the record, pursuant to Section 12 of Rule 13. 16
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002, merely discloses when
the mail matters received by the Bian Post Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange
for distribution to their final destinations. 17 The Registry Bill does not reflect the actual mailing date. Instead, it is the postal
Registration Book 18 that shows the list of mail matters that have been registered for mailing on a particular day, along with
the names of the senders and the addressees. That book shows that Registry Receipt Nos. 2832-A and 2832-B, pertaining to
the mailed matters for the Supreme Court, were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity, of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for Partial
Reconsideration 19 was still awaiting resolution by the CA when she filed her Petition before this Court on October 24, 2002.
The CA ruled on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002. Thus on September 17, 2002,
when Joycelyn filed her Motion for Extension of Time to file her Petition for Review, she might have still been unaware that he
had moved for a partial reconsideration of the August 20, 2002 CA Decision. Nevertheless, upon being notified of the filing of
his Motion, she should have manifested that fact to this Court.
With the CA's final denial of Crisanto's Motion for Reconsideration, Joycelyn's lapse may be excused in the interest of resolving
the substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered the trial court judge to "consider,
hear and resolve the motion to lift the award of custody pendente lite" without any proper motion by Joycelyn and after the
April 3, 2002 Order of the trial court had become final and executory. The CA is also charged with grave abuse of discretion for
denying his Motion for Partial Reconsideration without stating the reasons for the denial, allegedly in contravention of Section
1 of Rule 36 of the Rules of Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper
To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law or
jurisprudence; 20 or 2) executed "whimsically or arbitrarily" in a manner "so patent and so gross as to amount to an evasion of
a positive duty, or to a virtual refusal to perform the duty enjoined." 21 What constitutes grave abuse of discretion is such
capricious and arbitrary exercise of judgment as that which is equivalent, in the eyes of the law, to lack of jurisdiction. 22
On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion. SaCDTA
First, there can be no question that a court of competent jurisdiction is vested with the authority to resolve even unassigned
issues. It can do so when such a step is indispensable or necessary to a just resolution of issues raised in a particular pleading or
when the unassigned issues are inextricably linked or germane to those that have been pleaded. 23 This truism applies with
more force when the relief granted has been specifically prayed for, as in this case.
Explicit in the Motion to Dismiss 24 filed by Joycelyn before the RTC is her ancillary prayer for the court to lift and set aside its
April 3, 2002 Order awarding to Crisanto custody pendente lite of their minor son. Indeed, the necessary consequence of
granting her Motion to Dismiss would have been the setting aside of the Order awarding Crisanto provisional custody of the
child. Besides, even if the Motion to Dismiss was denied as indeed it was the trial court, in its discretion and if warranted,
could still have granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyn's Motion need not have been verified because of the provisional nature of the April 3, 2002
Order. Under Rule 38 25 of the Rules of Court, verification is required only when relief is sought from a final and executory
Order. Accordingly, the court may set aside its own orders even without a proper motion, whenever such action is warranted
by the Rules and to prevent a miscarriage of justice. 26
Denial of the Motion for
Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and distinctly the reasons for their dispositions)
refers only to decisions and final orders on the merits, not to those resolving incidental matters. 27 The provision reads:
"SECTION 1. Rendition of judgments and final orders. A judgment or final order
determining the merits of the case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law on which it is based, signed
by him, and filed with the clerk of court." (Italics supplied).
Here, the declaration of the nullity of marriage is the subject of the main case, in which the issue of custody pendente lite is an
incident. That custody and support of common children may be ruled upon by the court while the action is pending is provided
in Article 49 of the Family Code, which we quote:
"Art. 49. During the pendency of the action 28 and in the absence of
adequate provisions in a written agreement between the spouses,
the Court shall provide for the support of the spouses and the
custody and support of their common children. . . ."
Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its questioned Resolution, the CA clearly stated
that it "could not find any cogent reason" to reconsider and set aside the assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory
Third, the award of temporary custody, as the term implies, is provisional and subject to change as circumstances may warrant.
In this connection, there is no need for a lengthy discussion of the alleged finality of the April, 3, 2002 RTC Order granting
Crisanto temporary custody of his son. For that matter, even the award of child custody after a judgment on a marriage
annulment is not permanent; it may be reexamined and adjusted if and when the parent who was given custody becomes
unfit. 29
Second Issue:
Custody of a Minor Child
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. 30 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. CAIHaE
Article 213 of the Family Code 31 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.32 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
latter's 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." (Italics
supplied)
The general rule that children under seven years of age shall not be separated from their mother finds its raison d'etre in the
basic need of minor children for their mother's loving care. 33 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 mother's 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). 34 Article 17 of
the same Code is even more explicit in providing for the child's 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 father's 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 parent's 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." (Italics supplied)
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 35 was derived from the first sentence of the aforequoted Article 17; Article 212, 36 from the
second sentence; and Article 213, 37 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. 38
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson, 39 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. 40 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." 41
In like manner, the word "shall" in Article 213 of the Family Code and Section 6 42 of Rule 99 of the Rules of Court has been
held to connote a mandatory character. 43 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. 44 In the present case, the parents are living separately as a matter of fact.
The Best Interest of the Child
a Primary Consideration
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." 45
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. 46 Courts are
mandated to take into account all relevant circumstances that would have a bearing on the children's 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. 47 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 children's emotional and educational needs.
Tender Age
Presumption
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 otherwise. 48
The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only by compelling evidence of
the mother's 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. 49
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 mother's immoral conduct may constitute a compelling reason to
deprive her of custody.50
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. 51 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. 52 HSDaTC
To this effect did the Court rule in Unson III v. Navarro, 53 wherein the mother was openly living with her brother-in-law, the
child's uncle. Under that circumstance, the Court deemed it in the nine-year-old child's best interest to free her "from the
obviously unwholesome, not to say immoral influence, that the situation in which the mother ha[d] placed herself might create
in [the child's] moral and social outlook." 54
In Espiritu v. CA, 55 the Court took into account psychological and case study reports on the child, whose feelings of insecurity
and anxiety had been traced to strong conflicts with the mother. To the psychologist the child revealed, among other things,
that the latter was disturbed upon seeing "her mother hugging and kissing a 'bad' man who lived in their house and worked for
her father." The Court held that the "illicit or immoral activities of the mother had already caused the child emotional
disturbances, personality conflicts, and exposure to conflicting moral values . . ."
Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that Joycelyn was a lesbian. He must
also demonstrate that she carried on her purported relationship with a person of the same sex in the presence of their son or
under circumstances not conducive to the child's proper moral development. Such a fact has not been shown here. There is no
evidence that the son was exposed to the mother's alleged sexual proclivities or that his proper moral and psychological
development suffered as a result.
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" 56 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 child's 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 mother's custody.
No Grant of Habeas Corpus
and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas corpus and the
preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A writ of habeas corpus may be issued only
when the "rightful custody of any person is withheld from the person entitled thereto," 57 a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because Crisanto's right to
custody has not been proven to be "clear and unmistakable." 58 Unlike an ordinary preliminary injunction, the writ of
preliminary mandatory injunction is more cautiously regarded, since the latter requires the performance of a particular act that
tends to go beyond the maintenance of the status quo. 59 Besides, such an injunction would serve no purpose, now that the
case has been decided on its merits. 60
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and
the May 17, 2002 Regional Trial Court Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against Petitioner
Crisanto Rafaelito Gualberto V. DHECac
SO ORDERED. SECOND DIVISION
Sandoval-Gutierrez, Corona, Carpio Morales and Garcia, JJ., concur. [G.R. No. 124518. December 27, 2007.]
WILSON SY, petitioner, vs. COURT OF APPEALS, Regional Trial Court
of Manila, Branch 48, and MERCEDES TAN UY-SY, respondents.
DECISION
TINGA, J p:
In this Petition for Review on Certiorari 1 under Rule 45 of the 1997 Rules of Civil Procedure, petitioner Wilson Sy assails the
Decision 2dated 29 February 1996 of the Court of Appeals in C.A. G.R. SP No. 38936 and its Resolution 3 dated 15 April 1996
denying his motion for reconsideration.
The following are the antecedents:
On 19 January 1994, respondent Mercedes Tan Uy-Sy filed a petition for habeas corpus against petitioner Wilson Sy before the
Regional Trial Court of Manila, Branch 48, docketed as Special Proceeding No. 94-69002. Respondent prayed that said writ be
issued ordering petitioner to produce their minor children Vanessa and Jeremiah before the court and that after hearing, their
care and custody be awarded to her as their mother. 4
In his answer, petitioner prayed that the custody of the minors be awarded to him instead. Petitioner maintained that
respondent was unfit to take custody of the minors. He adduced the following reasons: firstly, respondent abandoned her
family in 1992; secondly, she is mentally unstable; and thirdly, she cannot provide proper care to the children. 5
After trial, the trial court caused the issuance of a writ of habeas corpus and awarded custody of the children to respondent, to
wit:
WHEREFORE, judgment is hereby rendered maintaining to the petitioner the custody of the minors
Vanessa and Jeremiah, all surnamed Uy-Sy, without, however, prejudice to the visitorial rights of
the father, herein respondent, and the temporary arrangement of the custody made by the parties
during pendency of this proceeding is hereby revoked, and without any further effect. The Court
further orders the respondent to pay by way of monthly support for the minors, the amount of
P50,000.00 payable to petitioner from [the] date of judgment for failure on the part of respondent
to show by preponderance of evidence that the petitioner is unfit to the custody of the minor
children who are only 6 and 4 years old. 6
Petitioner appealed the order of the trial court to the Court of Appeals. Before the appellate court, he alleged that the trial
court erred: (1) in awarding the custody of the minor children solely to respondent; and (2) in ordering him to provide
respondent support in the amount of P50,000.00 per month. 7
The Court of Appeals found no merit in the appeal and affirmed the decision of the trial court. The Court of Appeals did not
find any reason to disturb the conclusions of the trial court, particularly petitioner's failure to prove by preponderance of
evidence that respondent was unfit to take custody over the minor children. ISCDEA
The Court of Appeals held that petitioner was not able to substantiate his contention that respondent was unfit to have
custody of the children. On respondent's supposed abandonment of the family, the appellate court found instead that
respondent had been driven away by petitioner's family because of religious differences. Respondent's stay in Taiwan likewise
could hardly be called abandonment as she had gone there to earn enough money to reclaim her children. Neither could
respondent's act of praying outdoors in the rain be considered as evidence of insanity as it may simply be an expression of
one's faith. Regarding the allegation that respondent was unable to provide for a decent dwelling for the minors, to the
contrary, the appellate court was satisfied with respondent's proof of her financial ability to provide her children with the
necessities of life. 8
As to the second assignment of error, the Court of Appeals held that questions as to care and custody of children may be
properly raised in a petition for writ of habeas corpus. Moreover, petitioner was properly heard on the matter relative to the
issue of support. He was questioned about his sources of income for the purpose of determining his ability to give support. As
to the propriety of the amount awarded, the appellate court was unwilling to alter the trial court's conclusion for petitioner did
not forthrightly testify on his actual income. Neither did he produce income tax returns or other competent evidence, although
within his power to do so, to provide a fair indication of his resources. At any rate, the appellate court declared that a
judgment of support is never final and petitioner is not precluded at any time from seeking a modification of the same and
produce evidence of his claim. 9
Petitioner filed a motion for reconsideration of the Court of Appeals' decision but the same was denied. 10 Hence, this appeal
bycertiorari wherein petitioner asserts that: (1) the Court of Appeals erred in awarding the custody of the minor children solely
to respondent; (2) the Court of Appeals had no jurisdiction to award support in a habeas corpus case as: (a) support was
neither alleged nor prayed for in the petition; (b) there was no express or implied consent on the part of the parties to litigate
the issue; and (c) Section 6, Rule 99 of the Rules of Court does not apply because the trial court failed to consider the Civil Code
provisions on support; and (3) the award of P50,000.00 as support is arbitrary, unjust, unreasonable and tantamount to a clear
deprivation of property without due process of law. 11
For her part, respondent claims that petitioner had lost his privilege to raise the first issue, having failed to raise it before the
appellate court. Anent the second issue, respondent takes refuge in the appellate court's statement that the questions
regarding the care and custody of children may properly be adjudicated in a habeas corpus case. Regarding the third issue,
respondent maintains that the amount of support awarded is correct and proper. 12
There is no merit in the petition regarding the question of care and custody of the children.
The applicable provision is Section 213 of the Family Code which states that:
Section 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 is unfit.
No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.
In case of legal separation of the parents, the custody of the minor children shall be awarded to the innocent spouse, unless
otherwise directed by the court in the interest of the minor children. 13 But when the husband and wife are living separately
and apart from each other, without decree of the court, the court shall award the care, custody, and control of each child as
will be for his best interest, permitting the child to choose which parent he prefers to live with if he is over seven (7) years of
age unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness or
poverty. 14 IHaECA
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. 15
However, the law favors the mother if she is a fit and proper person to have custody of her children so that they may not only
receive her attention, care, supervision but also have the advantage and benefit of a mother's love and devotion for which
there is no substitute. 16Generally, the love, solicitude and devotion of a mother cannot be replaced by another and are worth
more to a child of tender years than all other things combined. 17 The Civil Code Commission, in recommending the preference
for the mother, explained, thus:
The general rule is recommended in order to avoid many 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 mother's 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. 18
This preference favoring the mother over the father is even reiterated in Section 6, Rule 99 of the Rules of Court (the Rule on
Adoption and Custody of Minors) underscoring its significance, to wit: ISCHET
SEC. 6. Proceedings as to child whose parents are separated. Appeal. When husband
and wife are divorced or living separately and apart from each other, and the question as
to the care, custody and control of a child or children of their marriage is brought before
a Regional Trial Court by petition or as an incident to any other proceeding, the court,
upon hearing the testimony as may be pertinent, shall award the care, custody and
control of each such child as will be for its best interest, permitting the child to choose
which parent it prefers to live with if it be over ten years of age, unless the parent so
chosen be unfit to take charge of the child by reason of moral depravity, habitual
drunkenness, incapacity, or poverty. If upon such hearing, it appears that both parents
are improper persons to have the care, custody, and control of the child, the court may
either designate the paternal or maternal grandparent of the child, or his oldest brother
or sister, or some reputable and discreet person to take charge of such child, or commit
it to any suitable asylum, children's home, or benevolent society. The court may in
conformity with the provisions of the Civil Code order either or both parents to support
or help support said child, irrespective of who may be its custodian, and may make any
 order that is just and reasonable permitting the parent who is deprived of its care and MERCEDES TAN UY-SY
custody to visit the child or have temporary custody thereof. Either parent may appeal Q: With the kind permission of this Honorable Court.
from an order made in accordance with the provisions of this section. No child under Q: Ms. Sy, the custody of the two minors[,] of course[,] require some expenses on your part
seven years of age shall be separated from its mother, unless the court finds there are notwithstanding that you said you have savings intended for them, is it not?
compelling reasons therefor. (Emphasis supplied) A: Yes, sir.
Q: And what is the nature of these expenses that you expect to disburse for the children?
The above-quoted provision expressly acknowledges and authorizes that the matter of care and custody of the children may be A: For the medicine or health care.
raised and adjudicated as an incident to any proceeding, such as a case for habeas corpus. Q: What else?
Evidently, absent any compelling reason to the contrary, the trial court was correct in restoring the custody of the children to A: For education, for emergency expenses, for basically for food.
the mother, herein respondent, the children being less than seven years of age, at least at the time the case was decided. Q: In your estimate, how much would these expenses be per month?
Moreover, petitioner's contention that respondent is unfit to have custody over the minor children has not been substantiated A: Well, I think, perhaps P50,000.00, sir.
as found by both courts below. Thus, it is already too late for petitioner to reiterate the assertion for only questions of law may Q: Which the respondent should furnish?
be raised before this Court. Furthermore, the determination of whether the mother is fit or unfit to have custody over the A: Yes, sir.
children is a matter well within the sound discretion of the trial court, and unless it is shown that said discretion has been ATTY. CORTEZ
abused the selection will not be interfered with. 19 That is all for the witness, Your Honor. 28
Consequently, the Court affirms the award of custody in respondent's favor. Moreover, based on the transcript of stenographic notes, petitioner was clearly made aware that the issue of support was
Now, the issue of support. being deliberated upon, to wit:
Article 203 of the Family Code states that the obligation to give support is demandable from the time the person who has a WITNESS:
right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial WILSON SY: will be testifying under the same oath. 29
demand. The case ofJocson v. The Empire Ins. Co. and Jocson Lagniton 20 explains the rationale for this rule: xxx xxx xxx
. . . Support does include what is necessary for the education and clothing of the person ATTY. ALBON:
entitled thereto (Art. 290, New Civil Code). But support must be demanded and the right Q: In the hearing of July 23, 1994 as appearing on page 3, Mercedes Sy testified that she would be
to it established before it becomes payable (Art. 298, New Civil Code; Marcelo v. Estacio, needing P50,000.00 a month expenses for her children, what can you say about that?
70 Phil. 215). For the right to support does not arise from the mere fact of relationship, A: That is a dillusion [sic] on her part. 30
even from the relationship of parents and children, but "from imperative necessity The trial court judge even propounded questions to petitioner regarding his sources of income for the purpose of determining
without which it cannot be demanded, and the law presumes that such necessity does the amount of support to be given to the children:
not exist unless support is demanded (Civil Code of the Philippines, Annotated, COURT:
Tolentino, Vol. 1, p. 181, citing 8 Manresa 685). In the present case, it does not appear I want to find out how much his income now for the purposes of giving support to the
that support for the minors, be it only for their education and clothing, was ever children. Please answer the question.
demanded from their father and the need for it duly established. The need for support, WITNESS:
as already stated, cannot be presumed, and especially must this be true in the present A: Shares of stocks.
case where it appears that the minors had means of their own. 21 cCTAIE ATTY. CORTEZ:
As intimated earlier, the Court agrees with the courts below that Section 6, Rule 99 22 of the Rules of Court permits the Q: A shares [sic] of stock is the evidence of your investment in the corporation. My
ventilation of the question regarding the care and custody of the children as an incident to any proceeding, even a habeas question is: What investment did you put in to enable you to get a share, was
corpus proceeding. Petitioner would have us believe, however, that since respondent's petition did not include a prayer 23 for it money or property? EICSDT
support of the children in accordance with the above-quoted Family Code provision, the trial court was not justified in A: There is no money but it was given by my father.
awarding support in respondent's favor. In addition, petitioner claims that he did not give consent to the trial and the threshing COURT:
out of the issue as it was not raised in the pleadings. 24 He claims that in fact, he testified on his financial status only to prove Q: Upon the death of your father you just inherited it?
that he is financially able to provide for his children and not for the purpose of determining the amount of support. 25 Besides, A: Before.
he contends that the trial court did not order the amendment of the pleadings to conform to the evidence presented pursuant Q: After the death, did you not acquire some of the shares of your father?
to Section 5 26 Rule 10 of the 1997 Rules of Civil Procedure, an aspect that supports his contention that the parties never A: No, your Honor.
consented, expressly or impliedly, to try the issue of support. 27 Q: What happened to the shares of your father?
The Court is not convinced. Contrary to petitioner's assertions, respondent testified during trial, without any objection on A: It is with my mother.
petitioner's part, regarding the need for support for the children's education and other necessities, viz: xxx xxx xxx
ADD'L DIRECT EXAMINATION OF THE WITNESS COURT:
 Never mind the share of the mother. What is material is his share. only clerical error or non substantial matters are involved, as we held in Bank of the Philippine
ATTY. CORTEZ: Islands vs. Laguna (48 Phil. 5). In Co Tiamco v. Diaz (75 Phil. 672), we stressed that the rule on
Q: How many shares do you have in the corporation? amendment need not be applied rigidly, particularly where no surprise or prejudice is caused the
A: Right now I have only ten (10) shares. objecting party. And in the recent case of National Power Corporation v. Court of Appeals (113 SCRA
Q: What is the value of that [sic] shares? 556), we held that where there is a variance in the defendant's pleadings and the evidence adduced
A: I [do not] give any importance. by it at the trial, the Court may treat the pleading as amended to conform with the evidence. 35
COURT The Court likewise affirms the award of P50,000.00 as support for the minor children. As found by both courts, petitioner's
Q: For purposes of this case, the Court is asking you how much is your share? representations regarding his family's wealth and his capability to provide for his family more than provided a fair indication of
A: I [do not ] how to appraise. his financial standing even though he proved to be less than forthright on the matter. 36 In any event, this award of support is
Q: More or less, how much? Use the word more or less, is that one million more or less, merely provisional as the amount may be modified or altered in accordance with the increased or decreased needs of the
2 million, more or less, 10 million, more or less? Anyway, this is not a BIR needy party and with the means of the giver. 37
proceeding, this is a Court proceeding? WHEREFORE, the Decision dated 29 February 1996 of the Eleventh Division of the Court of Appeals in C.A. G.R. SP No. 38936
A: I want to speak the truth but I [do not] know. I did not even see the and its Resolution 38 dated 15 April 1996 are AFFIRMED. Costs against petitioner.
account.
COURT: SO ORDERED.
Proceed. Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.
ATTY. CORTEZ
xxx xxx xxx
Q: At that time of your father's death[,] you were [sic]already holding ten (10) shares or was it less?
A: More. AEaSTC
Q: More than ten (10) shares?
A: Yes, sir.
COURT
Q: What is the par value of that one (1) share?
A: I [do not] know, your Honor.
xxx xxx xxx
COURT:
Let it remain that he owns ten (10) shares.
ATTY. CORTEZ:
xxx xxx xxx
A: Yes, 10 shares. The other shares I already sold it.
Q: How many shares did you sell?
A: I only have 10 shares now. I don't know how many shares that I have left. I only know the 20
shares. 31
Applying Section 5, 32 Rule 10 of the 1997 Rules of Civil Procedure, since the issue of support was tried with the implied
consent of the parties, it should be treated in all respects as if it had been raised in the pleadings. And since there was implied
consent, even if no motion had been filed and no amendment had been ordered, the Court holds that the trial court validly
rendered a judgment on the issue. 33 Significantly, in the case of Bank of America v. American Realty Corporation, 34 the Court
stated: aSIETH
There have been instances where the Court has held that even without the necessary amendment,
the amount proved at the trial may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106), where
we said that if the facts shown entitled plaintiff to relief other than that asked for, no amendment
to the complaint was necessary, especially where defendant had himself raised the point on which
recovery was based. The appellate court could treat the pleading as amended to conform to the
evidence although the pleadings were actually not amended. Amendment is also unnecessary when

SECOND DIVISION
[G.R. No. L-52242. November 17, 1980.]
MIGUEL R. UNSON III, petitioner, vs. HON. PEDRO C. NAVARRO AND
EDITA N. ARANETA, respondents.
DECISION
BARREDO, J p:
Petition for certiorari to have the order of respondent judge of December 26, 1979 ordering petitioner to produce the child,
Maria Teresa Unson, his daughter barely eight years of age, with private respondent Edita N. Araneta and return her to the
custody of the later, further obliging petitioner to "continue his support of said daughter by providing for her education and
medical needs," allegedly issued without a "hearing" and the reception of testimony in violation of Section 6 of Rule 99.
Petitioner and private respondent were married on April 19, 1971 1 and out of that marriage the child in question, Teresa, was
born on December 1, 1971. However, as stated in a decision rendered on August 23, 1974 in Civil Case No. 7716 of respondent
judge himself, on July 13, 1974 they executed an agreement for the separation of their properties and to live separately, as
they have in fact been living separately since June 1972. The agreement was approved by the Court.
The parties are agreed that no specific provision was contained in said agreement about the custody of the child because the
husband and wife would have their own private arrangement in that respect. Thus, according to the affidavit of petitioner
attached to his supplement to petition, submitted in compliance with the directive of this Court during the hearing of this case,
he affirms that:
"xxx xxx xxx
"(8) That when Maria Teresa started pre-school in 1976 at the Early Learning Center in San Lorenzo,
very near petitioner's residence, and later, when she started school at Assumption College, Maria
Teresa would stay with petitioner during school days and spend weekends with her mother, but
there were times when her mother wouldn't even bother to pick her up during non-school days;
(9) That during the early part of 1978 petitioner personally acquired knowledge that his wife Edita
Araneta has been living with her brother-in-law Agustin F. Reyes, in an apartment at C. Palma St.,
Makati, Metro Manila, and so petitioner tightened his custody over his daughter, especially after:
a. he found out that Agustin F. Reyes was confined at the Makati Medical
Center from October 13 up to December 3, 1977 for "Manic Depressive" disorder, under
the care of Dr. Baltazar Reyes;
b. he found out that his wife Edita Araneta delivered a child fathered by
Agustin F. Reyes on September 24, 1978. (Please see Birth Certificate attached hereto as
Annex "A-1");
c. he found out that Agustin F. Reyes had been confined again for the same
ailment at the Makati Medical Center from June 27 up to August 29, 1978 under the care
of the same doctor;
(10) That on May 21, 1980 Edita Araneta delivered another child fathered by Agustin F. Reyes.
(Please see Birth Certificate attached hereto as Annex "A-2");(11) That aside from the foregoing
circumstances, the following militate against custody of Maria Teresa in favor of Edita Araneta:
a. Agustin F. Reyes is the child's godfather/baptismal sponsor;
b. Agustin F. Reyes and Edita Araneta have left the Roman Catholic Church
and have embraced a protestant sect (Please see Annex "A-2" hereof, which lists the
occupation of Agustin F. Reyes as a seminarian);
(12) That Maria Teresa is almost nine (9) years old, born and reared under the Roman Catholic faith,
impressionable, and should not be exposed to an environment alien to the Catholic way of life,
which is the upbringing and training petitioner, as her father is committed to;
(13) That petitioner is executing this affidavit for all legal purposes." (Pp. 81-82 of Record)
Upon the other hand, private respondent affirms in her affidavit Annex "A" aforementioned that:
"xxx xxx xxx
"6. Since the birth of Maria Teresa, she has always lived with affiant, her mother, who has reared
and brought up the child to the best of her ability. Affiant has not in any way spoken ill of nor
turned the child against her father, herein petitioner;
7. In fact, it was affiant who was always insistent that petitioner have custody of Maria Teresa every
week end and half of summer and Christmas vacation so that the child could establish a healthy and
viable relationship with her father, herein petitioner;
8. This was specially so when affiant noticed that petitioner's parents showed more interest in the
child than petitioner; since it was petitioner's parents who would more often pick up Maria Teresa
and bring her back to and from affiant's home;
9. This fact was even noticed by the child; thus affiant immediately requested petitioner to spend
more time with Maria Teresa;
10. From 1972 to 1978, affiant had always exercised full custody of Maria Teresa. It was affiant who
voluntarily gave custody of the child to petitioner on weekends and half of the summer and
Christmas vacations. In view of this amicable arrangement, no specific terms were agreed and
stipulated upon by affiant and petitioner regarding custody of the child in their petition for
separation of property before the lower court;
11. From 1972 to September, 1979, affiant and petitioner have always had a cordial and amicable
relationship. Even from 1973 when affiant started living with her brother-in-law, Agustin F. Reyes at
San Lorenzo, Makati, affiant and petitioner retained a cordial relationship. Petitioner, since 1973
always knew about affiant's relationship with Agustin F. Reyes. In fact, petitioner would visit Maria
Teresa at affiant's home. Petitioner was always welcome to pick up Maria Teresa at any time.
12. When petitioner left for Australia in 1974 for a period of one year, petitioner left Maria Teresa
to stay with affiant at San Lorenzo. During this time Maria Teresa was always allowed to visit with
and to be picked up at any time by petitioner's parents;
13. Petitioner, his family, affiants family (Mr. and Mrs. Teodoro Araneta), affiant's relatives and
friends, since 1973 have long known of and accepted the circumstances involving private
respondent and Agustin F. Reyes;
14. Affiant admits that her present circumstances at first impression might seem socially if not
morally unacceptable; but in reality this is not so. Maria Teresa has been reared and brought up in
an atmosphere of Christian love, affection and honesty to the import of the situation. Further, the
quality and capacity of affiant of being a good mother has always remained;" (Pars. 6 to 14 of Annex
"A" of Record)
It is axiomatic in Our jurisprudence 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. Never has this Court diverted from that criterion.
With this premise in view, the Court finds no difficulty in this case in seeing that it is in the best interest of the child Teresa to
be freed from the obviously unwholesome, not to say immoral influence, that the situation in which private respondent has
placed herself, as admitted by her, might create in the moral and social outlook of Teresa who is now in her formative and
most impressionable stage in her life. The fact, that petitioner might have been tolerant about her stay with her mother in the
past when she was still too young to distinguish between right and wrong and have her own correct impressions or notions
about the unusual and peculiar relationship of her mother with her own uncle-in-law, the husband of her sister's mother, is
hardly of any consequence now that she has reached a perilous stage in her life. No respectable father, properly concerned
with the moral well-being of his child, specially a girl, can be expected to have a different attitude than petitioner's in this case.
Under the circumstances thus shown in the record, the Court finds no alternative than to grant private respondent no more
than visitorial rights over the child in question. Anyway, decisions even of this 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
We have mentioned above. We deem it a grave abuse of discretion on the part of respondent judge to have acted precipitably
in issuing his order of December 28, 1979 here in question. LLphil
As to the issue of jurisdiction, that is, whether or not, after the decision on separation of properties had become final, the
matter of the custody of the child should be the subject of a separate proceeding under Rule 99. We are inclined to agree with
respondents that, considering that in the decision on the separation of properties mention is made of support for the child, to
avoid multiplicity of proceedings, and since under Section 6 of Rule 99, the matter of the custody of children of separated
spouses may be brought before the Court of First Instance by petition or as an incident to any other proceeding, the
respondent court had jurisdiction to decide the question of custody here. And as regards the petitioner's claim of denial of
hearing and due process before the issuance by respondent judge of his order of December 28, 1979, We find that petitioner
was given sufficient time and opportunity to be heard, as, in fact, he filed his written opposition. With the facts in this case
practically uncontroverted, We do not see the need for the calling of witnesses and the hearing of testimony in open court.
WHEREFORE, the order of respondent judge is hereby set aside, the restraining order heretofore issued is made permanent
and the parties are ordered to submit to this Court within fifteen (15) days from notice hereof their own agreement as to the
visitorial rights of private respondent, otherwise, the Court will take it upon itself to fix the terms and conditions thereof No
costs.
Aquino, Concepcion Jr., Abad Santos and De Castro, JJ., concur.
SECOND DIVISION
[G.R. No. L-68374. June 18, 1985.]
HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners, vs. INTERMEDIATE
APPELLATE COURT, HON. ROQUE A. TAMAYO, as Presiding Judge of Regional
Trial Court, NCJR, Branch CXXXII, Makati, Metro Manila, MARIA LOURDES
SANTOS, and SIXTO SALUMBIDES, respondents.
DECISION
CONCEPCION, JR., J p:
Review on certiorari of the decision of the respondent appellate court in case CA-G.R. No. SP-01869, entitled: "Horacio Luna, et
al., petitioners, versus Hon. Roque A. Tamayo, etc., et al., respondents," which affirmed an order denying a motion to restrain
the execution of a final judgment rendered in a habeas corpus case. LLjur
The records of the case show that the herein private respondent Maria Lourdes Santos is an illegitimate child of the petitioner
Horacio Luna who is married to his co-petitioner Liberty Hizon-Luna. Maria Lourdes Santos is married to her corespondent
Sixto Salumbides, and are the parents of Shirley Santos Salumbides, also known as Shirley Luna Salumbides, who is the subject
of this child custody case.
It appears that two or four months after the birth of the said Shirley Salumbides on April 7, 1975, her parents gave her to the
petitioners, a childless couple with considerable means, who thereafter showered her with love and affection and brought her
up as their very own. The couple doted upon Shirley who called them "Mama" and "Papa". She calls her natural parents
"Mommy" and "Daddy." When Shirley reached the age of four (4) years in 1979, she was enrolled at the Maryknoll College in
Quezon City. where she is now in Grade III.
A few months before September, 1980, her "Mama" and "Papa" decided to take Shirley abroad and show her Disneyland and
other places of interest in America. Shirley looked forward to this trip and was excited about it. However, when the petitioners
asked for the respondents' written consent to the child's application for a U.S. visa, the respondents refused to give it, to the
petitioners' surprise and chagrin. Shirley was utterly disappointed. As a result, the petitioners had to leave without Shirley
whom they left with the private respondents, upon the latter's request. The petitioners, however, left instructions with their
chauffeur to take and fetch Shirley from Maryknoll College every school day.
When the petitioners returned on October 29, 1980, they learned that the respondents had transferred Shirley to the St.
Scholastica College. The private respondents also refused to return Shirley to them. Neither did the said respondents allow
Shirley to visit the petitioners. In view thereof, the petitioners filed a petition for habeas corpus with the Court of First Instance
of Rizal, Branch XV, against the private respondents to produce the person of Shirley and deliver her to their care and custody.
The case was docketed in court as Spec. Proc. No. 9417, and after the filing of an answer and due hearing, a decision was
rendered on March 9, 1981, declaring the petitioners entitled to the child's custody and forthwith granted the writ prayed
for. llcd
The private respondents appealed to the then Court of Appeals where the case was docketed as CA-G.R. No. SP-12212, and in a
decision dated April 7, 1982, the appealed decision was reversed and set aside and another entered, ordering the petitioners,
among other things, to turn over Shirley to the private respondents. The herein petitioners filed a motion for the
reconsideration of the decision but their motion was denied.
Consequently, the petitioners filed a petition for review of the decision of the appellate court. The case was docketed herein as
G.R. No. 60860 and on November 10, 1982, this Court, in a minute resolution, denied the petition for lack of merit.
Upon finality of the judgment, the case was remanded to the court of origin and assigned to Regional Trial Court, NCJR, Branch
CXXXII, Makati, Metro Manila, presided over by respondent Judge Roque A. Tamayo who, thereafter, issued an order directing
the issuance of a writ of execution to satisfy and enforce the resolution of the Supreme Court which affirmed the decision of
the Court of Appeals.
The execution of the judgment was vigorously opposed by the petitioners who filed a motion for the reconsideration of the
order and to set aside the writ of execution on the ground of supervening events and circumstances, more particularly, the
subsequent emotional, psychological and physiological condition of the child Shirley which make the enforcement of the
judgment sought to be executed unduly prejudicial, unjust and unfair, and cause irreparable damage to the welfare and
interests of the child. By reason thereof, the respondent judge called a conference among the parties and their counsels, and
conducted hearings on the petitioners' motion for reconsideration and to set aside the writ of execution. Shirley made
manifest during the hearing that she would kill herself or run away from home if she should ever be separated from her Mama
and Papa, the petitioners herein, and forced to stay with the respondents. A portion of her testimony is quoted
hereunder: prcd
"ATTY. CASTRO:
xxx xxx xxx
Q Would you want to live with your daddy and mommy, referring to Sixto Salumbides and
Maria Lourdes Salumbides?
A No, sir.
Q Why not?
A Because they are cruel to me. They always spank me and they do not love me. Whenever
I am eating, they are not attending to me. It is up to me whether I like the food
or not.
xxx xxx xxx
Q Now, if you will be taken from your papa and mama (Luna spouses) and given to your
daddy and mommy (Salumbides spouses), what would you do if you will do
anything?
A I will either kill myself or I will escape. Even now they said they love me. I don't believe
them. I know they are not sincere. They are only saying that to me. And I know
those words were not coming from their hearts. If they will get me from my
papa and mama, they will be hurt because they know that my papa and mama
love me very much." 1
Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that
". . . She (Shirley) has only grown more embittered, cautious, distrusting of her biological parents.
She threatens to kill herself or run away if given to her biological parents. She claims she would be
very unhappy with her biological parents since they do not understand her needs, are selfish to her,
and don't know how to care for her. Presently, she is very difficult to encourage in seeing her
biological parents in a different light." 2
and that
. . . I reviewed with them (Salumbides spouse) that at the present time, to get Shirley back in this
emotionally charged transaction, would hinder Shirley seeing them as truly loving and concerned
parents. She would more deeply distrust them if they uproot her from the home of the choice of
Mr. and Mrs. Luna. The biological parents wish to do what is also helpful to Shirley. I discussed with
both parties the recommendations of placement and follow up." 3
But, the respondent judge denied the petitioners' motion to set aside the writ of execution. The petitioners filed a motion for
the reconsideration of the order and when it was denied, they filed a petition for certiorari and prohibition with preliminary
injunction and restraining order with the respondent Intermediate Appellate Court, which was docketed therein as CA-G.R. No.
SP-01869, to stop altogether the execution of the decision of the Court of Appeals rendered in CA-G.R. No. SP-12212. The
petition was duly heard, after which a decision was rendered on May 25, 1984, dismissing the petition. Hence, the present
recourse. LibLex
The issue is whether or not procedural rules, more particularly the duty of lower courts to enforce a final decision of appellate
courts in child custody cases, should prevail over and above the desire and preference of the child, to stay with her
grandparents instead of her biological parents and who had signified her intention to kill herself or run away from home if she
should be separated from her grandparents and forced to live with her biological parents.
It is a well-known doctrine that when a judgment of a higher court is returned to the lower court, the only function of the latter
court is the ministerial one of issuing the order of execution. The lower court cannot vary the mandate of the superior court, or
examine it, for any other purpose than execution; nor review it upon any matter decided on appeal or error apparent; nor
intermeddle with it further than to settle so much as has been demanded. However, it is also equally well-known that a stay of
execution of a final judgment may be authorized whenever it is necessary to accomplish the ends of justice as when there had
been a change in the situation of the parties which makes such execution inequitable, or when it appears that the controversy
had never been submitted to the judgment of the court; or when it appears that the writ of execution has been improvidently
issued; or that it is defective in substance; or is issued against the wrong party; or that the judgment debt has been paid or
otherwise satisfied; or when the writ has been issued without authority.
In the instant case, the petitioners claim that the child's manifestation to the trial court that she would kill herself or run away
from home if she should be forced to live with the private respondents is a supervening event that would justify the
cancellation of the execution of the final decision rendered by the Court of Appeals in CA-G.R. No. SP-12212. The respondents,
upon the other hand, maintain that there are no supervening developments and circumstances since these events are not new
as the Court of Appeals had taken into account the physiological and emotional consideration of the transfer of custody of
Shirley when it reversed the decision of the trial court and gave to the private respondents the custody of the child Shirley; and
besides, the wishes and desires of the child is no hindrance to the parents' right to her custody since the right of the parents to
the custody of their children is paramount. LLpr
We find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or run away from home if she
should be taken away from the herein petitioners and forced to live with the private respondents, made during the hearings on
the petitioners' motion to set aside the writ of execution and reiterated in her letters to the members of the Court dated
September 19, 1984 4 and January 2, 1985, 5 and during the hearing of the case before this Court, is a circumstance that would
make the execution of the judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal inequitable, unfair
and unjust, if not illegal. Article 363 of the Civil Code provides that in all questions relating to the care, custody, education and
property of the children, the latter's welfare is paramount. This means that the best interest of the minor can override
procedural rules and even the rights of parents to the custody of their children. Since, in this case, the very life and existence of
the minor is at stake and the child is in an age when she can exercise an intelligent choice, the courts can do no less than
respect, enforce and give meaning and substance to that choice and uphold her right to live in an atmosphere conducive to her
physical, moral and intellectual development. 6 The threat may be proven empty, but Shirley has a right to a wholesome family
life that will provide her with love, care and understanding, guidance and counselling, and moral and material security. 7 But,
what if the threat is for real?
Besides, in her letters to the members of the Court, Shirley depicted her biological parents as selfish and cruel and who beat
her often; and that they do not love her. And, as pointed out by the child psychologist, Shirley has grown more embittered,
cautious and distrusting of her biological parents. To return her to the custody of the private respondents to face the same
emotional environment which she is now complaining of would be indeed traumatic and cause irreparable damage to the
child. As requested by her, let us not destroy her future.
WHEREFORE, the petition should be, as it is hereby GRANTED and the writ prayed for issued, setting aside the judgment of the
respondent Intermediate Appellate Court in CA-G.R. No. SP-01869, and restraining the respondent judge and/or his successors
from enforcing the judgment rendered by the Court of Appeals in CA-G.R. No. SP-12212, entitled: "Horacio Luna and Liberty
Hizon-Luna, petitioners-appellees, versus Maria Lourdes Santos and Sixto Salumbides, respondents-appellants." The decision
rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal granting the herein petitioners custody of the child
Shirley Salumbides should be maintained. Without costs. Cdpr
SO ORDERED.
Abad Santos, Escolin and Cuevas, JJ., concur.
Separate Opinions
Aquino, J., concurring:
I concur. A judgment for the custody of the child, like a judgment for support is not final and irrevocable. The welfare of the
child is the paramount consideration. It would be for Shirley's welfare to remain in the custody of the petitioners.
MAKASIAR, J., dissenting:
The resolution of the issue on who should have custody over the nine-year old girl has been viewed from a limited approach.
The majority opinion has been focused more on the personal assessment of the child rather than on the general and specific
laws and jurisprudence that should govern this case. A nine-year old child, brainwashed by the material luxury as well as
constant attention showered on her by doting grandparents, cannot possibly appreciate the incomparable love and solicitude
her natural parents have for her always, in good or bad times.
The determination, therefore, as to whose custody the child belongs must necessarily and initially involve the question of
parental authority. It appears that the law on parental authority has been conveniently sidetracked by petitioners.
Parental authority, known in Roman law as patria potestas, is 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 or emancipation, and even after this
under certain circumstances" (2 Manresa 8, cited in p. 657, Comments & Jurisprudence on the Civil Code, Tolentino, Vol. I,
1983 ed.).
The following Civil Code provisions thus provide:
"Art. 311. The father and mother jointly exercise parental authority over their legitimate
children who are not emancipated. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.
xxx xxx xxx
"Art. 313. Parental authority cannot be renounced or transferred, except in cases of
guardianship or adoption approved by the courts, or emancipation by concession" (par.
1). LexLib
Significantly, the stern pronouncements of this Court in the case of Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil. 554) are very
much in point. This Court thus declared:
"The word 'entrusted' cannot convey the idea of definite and permanent renunciation of
the mother's custody of her child.
xxx xxx xxx
"This Court should avert the tragedy in the years to come of having deprived mother and
son of the beautiful associations and tender, imperishable memories engendered by the
relationship of parent and child. We should not take away from a mother the
opportunity of bringing up her own child even at the cost of extreme sacrifice due to
poverty and lack of means; so that afterwards, she may be able to look back with pride
and a sense of satisfaction and her efforts, however humble, to make her dreams of her
little boy come true. We should not forget that the relationship between a foster mother
and a child is not natural but artificial. If the child turns out to be a failure or forgetful of
what its foster parents had done for him, said parents might yet count and appraise all
that they have done and spent for him and with regret consider all of it as a dead loss,
and even rue the day they committed the blunder of taking the child into their hearts
and their home. Not so with a real natural mother who never counts the cost and her
sacrifices, ever treasuring memories of her associations with her child, however
unpleasant and disappointing. Flesh and blood count.
xxx xxx xxx
"Whether a child should stay permanently with a kindly stranger or with his own mother,
is not to be determined alone by considerations of affluence or poverty. Poor youths
who had to work their way thru school and college, have, not infrequently, scaled the
heights of success, as easily and swiftly as their more favored companions, and done so
with more, inner satisfaction, and credit to themselves and their humble parents."
The guardianship or custody which parents exercise over their children is well-entrenched in this jurisdiction. Thus, in the case
of Reyes vs. Alvarez (8 Phil. 725), this Court declared: cdrep
"The guardianship which parents exercise over their children by virtue of the paternal
authority granted them by law has for its purpose their physical development, the
cultivation of their intelligence, and the development of their intellectual and sensitive
faculties. For such purposes they are entitled to control their children and to keep them
in their company in order to properly comply with their paternal obligations, but it is also
their duty to furnish them with a dwelling or a place where they may live together."
This Court has long recognized that "the right attached to parental authority is a purely personal one, and it is extinguished
upon the death of the parent exercising it" (Abiera vs. Orin, 8 Phil. 193).
Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the right to
the child's services and earnings, and the right to direct his activities and make decisions regarding his care and control,
education, health, and religion (p. 107, 59 Am. Jur. 2d.).
The right of the 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 by the decisions of
the courts, but derives from the nature of parental relationship. Since the rights of parents to the custody of their minor
children is both a natural and a legal right, the law should not disturb the parent-child relationship except for the strongest
reasons, and only upon a clear showing of a parent's gross misconduct or unfitness, or of other extraordinary circumstances
affecting the welfare of the child (pp. 107 & 108, 59 Am. Jur. 2d.).
"Article 363 orders that `No mother shall be separated from her child under seven years
of age, unless the court finds compelling reasons for such measure.' One of the cruelest
acts in the world is to separate a mother from her baby. This was often done in case of
adultery by the mother, and the court ordered that the custody of the child should be
given to the father, but the new article provides other wise because the mother's
 maternal love than which there is nothing greater in this life should be respected.
Besides, she could not exert a bad influence on a baby. And lastly, perhaps the presence
of her child will often redeem her" (p. 199, The Father of the First Brown Race Civil Code,
Rivera, 1978 Ed.).
As long as the parents are living and they have not lost their parental authority, patria potestas is limited to them. Other
ascendants have no authority over the children, even if the parents of the latter are minors (2 Manresa 13, cited in p. 661,
Comments and Jurisprudence on the Civil Code, Tolentino, Vol. I, 1983 Ed.). cdphil
Parental authority is inalienable and every abdication of this authority by the parents is void (Planiol and Ripert 324, p. 664,
Ibid.).
Whatever agreement or arrangement there was between petitioners and respondents when the child Shirley was given to the
former, the same has not been validated nor legalized by the mere fact that the said girl had stayed with the petitioners for a
number of years, in view of the explicit provision of Article 313 mandating that parental authority cannot be renounced or
transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession.
Thus, the mother in case of separation, cannot by agreement vest the custody of a child in the maternal grandmother as
against the father (Mason vs. Williams, 165 Ky. 331, 176 S.W. 1171, cited in p. 662, Comments and Jurisprudence on the Civil
Code, Tolentino, Vol. 1, 1983 Ed.).
Some United States courts have consistently ruled that since children cannot be bought and sold, and since the parent is
subject to obligations which he cannot throw off by any act of his own, agreements by which the parents, or one of them,
transfer custody of a child to a third person, with the provision or informal understanding that custody will not be reclaimed,
are not generally considered legally binding contracts, unless they amount to statutory indentures of apprenticeship, or are
supported by other express statutory provisions. This is especially true in the case of a parent who, having been compelled by
poverty or unfavorable circumstances to surrender the custody of his child, wishes to reclaim it when circumstances are
improved (p. 117, 59 Am. Jur. 2d.).
For this Court to award custody over Shirley to petitioners primarily on the basis of her reaction and choice would run counter
to existing law and jurisprudence as already aforestated. LibLex
A nine-year old girl, although already at the age of discernment, is not capable of knowing or defining varied feelings like love,
anger or cruelty when such a girl has been exposed to two contrasting conditions, the first for more than eight years and the
second, for barely four months. The child grew up amidst affluent surroundings the grandparents being well-off.
The lolo and lola as most lolos and lolasare, doted over Shirley. In fact, she attended Maryknoll College, a school for the elite,
and rode in a chauffeur-driven car. She grew up amidst a luxurious atmosphere. Perhaps, in their own way of loving their
granddaughter, they showered her with all material needs and pampered her. Thus, the child had not been made to
experience disappointments, much less hardships. Life with her lolo and lola meant having what she wanted. In the process,
Shirley moved about in a limited world, created by her Mama (Lola) and Papa (Lolo) a world felt and seen through rose-
colored lenses, The child addresses her natural parents as "Daddy" and "Mommy". LLphil
Then all of a sudden, the scenario is changed and the girl finds herself in a very contrasting situation. Having been used to the
life style offered by her grandparents and having thus absorbed a set of values different from the average and ordinary, she
now finds life with her natural parents harsh and unbearable. With the luxurious life she had with petitioners at the back of her
mind, she would naturally look at things in the respondents' home differently and partially.
Four months is too insufficient a time for a nine-year old girl to comprehend and accept a home atmosphere strikingly distinct
from one where she had lived for more than eight years. Four months is a very short time for the child to be able to
understand, to absorb and to appreciate two vastly different home conditions. Whatever set of values the second home has to
offer, the same cannot settle in a child for only four months' exposure. To Shirley, therefore, any attempted discipline imposed
by her natural parents means cruelty and lack of affection for her. Where before she could choose the food she wanted, now
she has to take whatever food is available within the limited means of her parents. She cannot realize that in a middle-class
family, the choice of food is restricted by the amount appropriated therefor. The gauge is what and how much food could
benefit all the members of the household and not just one member. Choice for particular needs becomes secondary to what
the family budget can afford for the entire family. This explains why Shirley had a dislike for the conditions existing in
respondents' house which did not cater to her tastes.
In her answers to the questions which are quite leading, one can clearly sense that Shirley, who was used to having all the
lavish care and attention from petitioners, reacted negatively to her natural parents whose ways are so different from the
former. It would take some more time and exposure for Shirley to be able to really say that respondents do not love and care
for her. She would have been given more time in respondents' home to allow whatever values such place can offer to settle in
her mind. It was unfair for petitioners to push Shirley into a choice a decision which a nine-year old girl could not have made
intelligently without undue pressure and played-up emotionalism.
It must be noted with concern that Article 312 of the Civil Code clearly defines the specific and limited role of grandparents
when it states that "grandparents shall be consulted by all members of the family on all important family questions." This has
been interpreted to mean that as long as the parents are living, grandparents and other ascendants have no authority over the
children, even when the parents are minors. Grandparents, therefore, cannot question the form of instruction or education
chosen by the parents for the children. The grandparents can only advise and counsel the children. But if the parents are dead
or are absent, then the grandparents shall exercise parental authority over the children (Article 354, p. 663, Comments and
Jurisprudence on the Civil Code, Tolentino, 1983 Ed.). Cdpr
Evidently, the present petition for custody of petitioners runs counter to the parental preference rule. Under the so-called
parental preference rule, a natural parent, father or mother, as the case may be, who is of good character and a proper person
to have the custody of the child and is reasonably able to provide for such child, ordinarily is entitled to the custody as against
all persons. Accordingly, such parents are entitled to the custody of their children as against foster or prospective adoptive
parents; and such entitlement applies also as against other relatives of the child, including grandparents, or as against an
agency or institution (pp. 207 & 208, Vol. 67A C.J.S.).
It has been an established rule that the preference of a child is only one factor to be considered, and it is not controlling,
decisive, or determinative. Thus, notwithstanding the preference, the court has a discretion to determine the question of
custody, and it is not error for the court to refuse to discuss the custody issue with the child. The rights of a parent will not be
disregarded in order to gratify the mere wishes of a child where a parent is found to be a proper person to be entrusted with
the custody of a child (pp. 231-232, Vol. 67A C.J.S.). LLjur
In view of the foregoing, and considering that herein respondents have not been shown to be unfit or unsuitable or financially
incapable of keeping and caring for Shirley, the latter's custody should be awarded to said respondents.
THIRD DIVISION
[G.R. No. 113054. March 16, 1995.]
LEOUEL SANTOS, SR., petitioner-appellant, vs. COURT OF APPEALS,
and SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees.
Saleto J . Erames for petitioner.
Manuel S. Gemarino for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; CONSTRUED. 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 latter's needs. It is a mass of rights and obligations
which the law grants to parents for the purpose of the children's 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.
2. ID.; ID.; ID.; INALIENABLE AND MAY NOT BE TRANSFERRED OR RENOUNCED EXCEPT IN CASES AUTHORIZED BY LAW.
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by
law. 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 children's home or an orphan institution. When a parent entrusts the custody of
a minor to another, such as a friend 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.
3. ID.; ID.; ID.; GENERALLY EXERCISED JOINTLY BY THE FATHER AND MOTHER OF THE
UNEMANCIPATED CHILD. 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 child's welfare is always the
paramount consideration in all questions concerning his care and custody. The law vests on the father and
mother joint parental authority over the persons of their common children. In case of absences 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.
4. ID.; ID.; ID.; ID.; IN THE ABSENCE OF THE LEGITIMATE MOTHER, THE LEGITIMATE FATHER IS
STILL PREFERRED OVER THE GRANDPARENTS; FACT OF FATHER BEING A SOLDIER, NOT BAR TO ALLOWING
HIM CUSTODY. Private respondents' demonstrated love and affection for the boy, notwithstanding, the
legitimate father is still preferred over the grandparents. The latter's wealth is not a deciding factor,
particularly because there is no proof that at the present time, petitioner is in no position to support the
boy. The fact that he was unable to provide financial support for his minor son from birth up to over three
years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him
of his permanent right to the child's custody. While petitioner's previous inattention is inexcusable and
merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable
decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts
to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son.
It would also give the father a chance to prove his love for his son and for the son to experience the warmth
and support which a father can give. His being a soldier is likewise no bar to allowing him custody over the
boy. So many men in uniform who are assigned to different parts of the country in the service of the nation,
are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and
custody over their children merely because of the normal consequences of their duties and assignments,
such as temporary separation from their families. Petitioner's employment of trickery in spiriting away his
boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him. Private
respondents' attachment to the young boy whom they have reared for the past three years is
understandable. Still and all, the law considers the natural love of a parent to outweigh that of the
grandparents, such that only when the parent present is shown to be unfit or unsuitable may the
grandparents exercise substitute parental authority, a fact which has not been proven here.
DECISION
ROMERO, J p:
In this petition for review, we are asked to overturn the decision of the Court of
Appeals 1 granting custody of six-year old Leouel Santos, Jr. to his maternal grandparents and not to his
father, Santos, Sr. What is sought is a decision which should definitively settle the matter of the care,
custody and control of the boy. cdrep
Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for
there is man's law to guide us and that is, the Family Code.
The antecedent facts giving rise to the case at bench are as follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were
married in Iloilo City in 1986. Their union begot only one child, Leouel Santos, Jr. who was born July 18,
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 herein, Leopoldo and Ofelia
Bedia. LLjur
Petitioner and wife Julia agreed to place Leouel, Jr., in the temporary custody of the latter's
parents, the respondent spouses Bedia. The latter 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.
The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner
alleged that he is not aware of her whereabouts and his efforts to locate her in the United States proved
futile. Private respondents claim that although abroad, their daughter Julia had been sending financial
support to them for her son. prLL
On September 2, 1990, petitioner along with his two brothers, visited the Bedia household,
where three-year old Leouel, Jr., was staying. Private respondents contend that through deceit and false
pretensions, petitioner abducted the boy and clandestinely spirited him away to his hometown in Bacong,
Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel
Santos, Jr.," before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent. 2
After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day
awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia. 3
Petitioner appealed this Order to the Court of Appeals. 4 In its decision dated April 30, 1992,
respondent appellate court affirmed the trial court's order. 5 His motion for reconsideration having been
denied, 6 petitioner now brings the instant petition for review for a reversal of the appellate court's
decision. prcd
The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his
grandparents and not to himself. He contends that since private respondents have failed to show that
petitioner is an unfit and unsuitable father, substitute parental authority granted to the boy's grandparents
under Art. 214 of the Family Code is inappropriate.
Petitioner adds that the reasons relied upon by the private respondents in having custody over
the boy, are flimsy and insufficient to deprive him of his natural and legal right to have custody.
 On the other hand, private respondents aver that they can provide an air-conditioned room for
the boy and that petitioner would not be in a position to take care of his son since he has to be assigned to
different places. They also allege that the petitioner did not give a single centavo for the boy's support and
maintenance. When the boy was about to be released from the hospital, they were the ones who paid the
fees because their daughter and petitioner had no money. Besides, Julia Bedia-Santos, their daughter, had
entrusted the boy to them before she left for the United States. Furthermore, petitioner's use of trickery
and deceit in abducting the child in 1990, after being hospitably treated by private respondents, does not
speak well of his fitness and suitability as a parent.
The Bedias argue that although the law recognizes the right of a parent to his
child's custody, ultimately the primary consideration is what is best for the happiness and
welfare of the latter. As maternal grandparents who have amply demonstrated their love
and affection for the boy since his infancy, they claim to be in the best position to
promote the child's welfare.
The issue to be resolved here boils down to who should properly be awarded
custody of the minor Leouel Santos, Jr. LLphil
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 latter's needs. 7 It is a mass of rights and
obligations which the law grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of their intellect and the
education of their heart and senses. 8 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." 9
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. 10 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 children's home or an orphan
institution. 11 When a parent entrusts the custody of a minor to another, such as a friend
or godfather, even in a document, what is given is merely temporary custody and it does
not constitute a renunciation of parental authority. 12 Even if a definite renunciation is
manifest, the law still disallows the same. 13
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company. 14 The child's welfare is always the paramount consideration in all questions
concerning his care and custody. 15
The law vests on the father and mother joint parental authority over the
persons of their common children. 16 In case of absence or death of either parent, the
parent present shall continue exercising parental authority. 17 Only in case of the
parents' death, absence or unsuitability may substitute parental authority be exercised
by the surviving grandparent. 18 The situation obtaining in the case at bench is one
where the mother of the minor Santos, Jr., is working in the United States while the
father, petitioner Santos, Sr., is present. Not only are they physically apart but are also
emotionally separated. There has been no decree of legal separation and petitioner's
attempt to obtain an annulment of the marriage on the ground of psychological
incapacity of his wife has failed. 19
Petitioner assails the decisions of both the trial court and the appellate court
to award custody of his minor son to his parents-in-law, the Bedia spouses on the ground
that under Art. 214 of the Family Code, substitute parental authority of the grandparents
is proper only when both parents are dead, absent or unsuitable. Petitioner's unfitness,
according to him, has not been successfully shown by private respondents. LLpr
The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.)
is "depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered,
to be unsuitable to be allowed to have custody of minor Leouel Santos, Jr." 20
The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted
as its own the latter's observations, to wit:
"From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest
of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of
his maternal grandparents the petitioners herein. The petitioners have amply
demonstrated their love and devotion to their grandson while the natural father,
respondent herein, has shown little interest in his welfare as reflected by his conduct in
the past. Moreover, the fact that petitioners are well-off financially, should be carefully
considered in awarding to them the custody of the minor herein, lest the breaking of
such ties with his maternal grandparents might deprive the boy of an eventual college
education and other material advantages. (Consaul vs. Consaul, 63 N.Y.S. 688)
Respondent had never given any previous financial support to his son, while, upon the
other hand, the latter receives so much bounty from his maternal grandparents and his
mother as well, who is now gainfully employed in the United States. Moreover, the fact
that respondent, as a military personnel who has to shuttle from one assignment to
another, and, in these troubled times, may have pressing and compelling military duties
which may prevent him from attending to his son at times when the latter needs him
most, militates strongly against said respondent. Additionally, the child is sickly and
asthmatic and needs the loving and tender care of those who can provide for it." 21
We find the aforementioned considerations insufficient to defeat petitioner's parental authority
and the concomitant right to have custody over the minor Leouel Santos, Jr., particularly since he has not
been shown to be an unsuitable and unfit parent. Private respondents' demonstrated love and affection for
the boy, notwithstanding, the legitimate father is still preferred over the grandparents. 22 The latter's
wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner is
in no position to support the boy. The fact that he was unable to provide financial support for his minor son
from birth up to over three years when he took the boy from his in-laws without permission, should not be
sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous
inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment.
His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may
be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the
bond between parent and son. It would also give the father a chance to prove his love for his son and for
the son to experience the warmth and support which a father can give. llcd
His being a soldier is likewise no bar to allowing him custody over the boy. So many men in
uniform who are assigned to different parts of the country in the service of the nation, are still the natural
guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their
children merely because of the normal consequences of their duties and assignments, such as temporary
separation from their families.
Petitioner's employment of trickery in spiriting away his boy from his in-laws, though
unjustifiable, is likewise not a ground to wrest custody from him.
Private respondents' attachment to the young boy whom they have reared for the past three
years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the
grandparents, such that only when the parent present is shown to be unfit or unsuitable may the
grandparents exercise substitute parental authority, a fact which has not been proven here. llcd
The strong bonds of love and affection possessed by private respondents as grandparents should
not be seen as incompatible with petitioner's right to custody over the child as a father. Moreover, who is to
say whether the petitioner's financial standing may improve in the future?
WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated
April 30, 1992 as well as its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE.
Custody over the minor Leouel Santos, Jr. is awarded to his legitimate father, herein petitioner Leouel
Santos, Sr.
SO ORDERED.
Feliciano, Melo, Vitug and Francisco, JJ., concur.
THIRD DIVISION
[G.R. No. 115640. March 15, 1995.]
REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, vs. COURT
OF APPEALS and TERESITA MASAUDING,respondents.
Ponce Enrile Cayetano Reyes & Manalastas for petitioners.
Abesamis Medialdea & Abesamis Law Offices for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY RELATIONS; PARENTAL AUTHORITY; IN CASE OF SEPARATION; CHOICE OF PARENTS, PARAMOUNT
CRITERION IS THE CHILD'S INTEREST AND WELFARE. The task of choosing the parent to whom custody shall be awarded is
not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or
over seven years of age, the paramount criterion must always be the child's 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 Unson III
vs. Navarro (101 SCRA 183 [1980]), we 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"; and in Medina vs. Makabali (27 SCRA 502
[1969]), where custody of the minor was given to a non-relative as against the mother, then the country's leading civilist,
Justice J.B.L. Reyes, explained its basis in this manner: . . . While our law recognizes the right of a parent to the custody of her
child. Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and property of
children, the latter's welfare shall be paramount" (Civil Code of the Philippines, Art. 363), and that for compelling reasons, even
a child under seven may be ordered separated from the mother (do.). This is as it should be, for in the continual evolution of
legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman
law, under which the offspring was virtually a chattel of his parents into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no power,
but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the
minor." As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of
parental duties to provide the children with adequate support, education, moral, intellectual and civic training and
development (Civil Code, Art. 356). In ascertaining the welfare and best interests of the child, courts are mandated by the
Family Code to take into account all relevant considerations. If a child is under seven years of age, the law presumes that the
mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons." If
a child is over seven, his choice is paramount but, again, 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.
2. ID.; ID.; ID.; ID.; CHOICE OF CHILDREN OVER SEVEN (7) YEARS OF AGE; ELUCIDATED. Considerations involving the choice
made by a child 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 (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the
best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the
custodian. At the present time, both children are over 7 years of age and are thus perfectly capable of making a fairly
intelligent choice.
3. REMEDIAL LAW; EVIDENCE; EXPERT WITNESS; PURPOSE IS TO ASSIST THE COURT IN DETERMINATION OF ISSUES BEFORE IT.
The professional integrity and competence of the expert witnesses and the objectivity of the interviews were unshaken and
unimpeached. Their testimony remain uncontroverted. The examinations made by the experts were conducted in late 1991,
well over a year before the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at
that time not intended to support petitioners' position in litigation, because there was then not even an impending possibility
of one. That they were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they
were first obtained. Furthermore, such examinations, when presented to the court must be construed to have been presented
not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The
persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their
respective knowledge and expertise.
4. ID.; ID.; ID.; TESTIMONIES; WEIGHT AND SUFFICIENCY. In regard to testimony of expert witnesses it was held
in Salomon,et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]): . . . Although courts are not ordinarily bound by
expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the
case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide,
considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the
reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is
a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other
matters which reserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the
expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness
and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the
absence of an abuse of that discretion.
DECISION
MELO, J p:
This case concerns a seemingly void marriage and a relationship which went
sour. The innocent victims are two children born out of the same union. Upon this Court
now falls the not too welcome task of deciding the issue of who, between the father and
mother, is more suitable and better qualified in helping the children to grow into
responsible, well-adjusted, and happy young adulthood. cdll
Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met
sometime in 1976 in Iligan City where Reynaldo was employed by the National Steel
Corporation and Teresita was employed as a nurse in a local hospital. In 1977, Teresita
left for Los Angeles, California to work as a nurse. She was able to acquire immigrant
status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel
Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita
then began to maintain a common law relationship of husband and wife. On August 16,
1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were
on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their
return to the United States, their second child, a son, this time, and given the name
Reginald Vince, was born on January 12, 1988. cdll
The relationship of the couple deteriorated until they decided to separate
sometime in 1990. Teresita blamed Reynaldo for the break-up, stating he was always
nagging her about money matters. Reynaldo, on the other hand, contended that Teresita
was a spendthrift, buying expensive jewelry and antique furniture instead of attending to
household expenses.
Instead of giving their marriage a second chance as allegedly pleaded by
Reynaldo, Teresita left Reynaldo and the children and went back to California. She claims,
however, that she spent a lot of money on long distance telephone calls to keep in
constant touch with her children.
 Reynaldo brought his children home to the Philippines, but because his
assignment in Pittsburgh was not yet completed, he was sent back by his company to
Pittsburgh. He had to leave his children with his sister, co-petitioner Guillerma Layug and
her family.
Teresita claims that she did not immediately follow her children because
Reynaldo filed a criminal case for bigamy against her and she was afraid of being
arrested. The judgment of conviction in the bigamy case was actually rendered only on
September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-
222, Rollo). Teresita, meanwhile, decided to return to the Philippines and on December
8, 1992 and filed the petition for a writ of habeas corpus against herein two petitioners
to gain custody over the children, thus starting the whole proceedings now reaching this
Court.
On June 30, 1993, the trial court dismissed the petition for habeas corpus. It
suspended Teresita's parental authority over Rosalind and Reginald and declared
Reynaldo to have sole parental authority over them but with rights of visitation to be
agreed upon by the parties and to be approved by the Court. llcd
On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de
Pano and Ivay-Somera concurring, reversed the trial court's decision. It gave custody to
Teresita and visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the main
contending that the Court of Appeals disregarded the factual findings of the trial court;
that the Court of Appeals further engaged in speculations and conjectures, resulting in its
erroneous conclusion that custody of the children should be given to respondent
Teresita. prcd
We believe that respondent court resolved the question of custody over the children through an
automatic and blind application of the age proviso of Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody, education and property of the children,
the latter's 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.
and of Article 213 of the Family Code which in turn 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.
The decision under review is based on the report of the Code Commission which drafted Article
213 that a child below seven years still needs the loving, tender care that only a mother can give and which,
presumably, a father cannot give in equal measure. The commentaries of a member of the Code
Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also
taken into account. Justice Diy believes that a child below seven years should still be awarded to her mother
even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction
has no effect on a baby unable to understand such action. (Handbook on the Family Code of the Philippines,
1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of law rather than an
appreciation of relevant facts and the law which should apply to those facts. The task of choosing the parent
to whom custody shall be awarded is not a ministerial function to be determined by a simple determination
of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion
must always be the child's 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 Unson III vs. Navarro (101
SCRA 183 [1980]), we 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"; and
in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as
against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner:
. . . While our law recognizes the right of a parent to the custody of her child, Courts
must not lose sight of the basic principle that "in all questions on the care, custody,
education and property of children, the latter's welfare shall be paramount" (Civil Code
of the Philippines, Art. 363), and that for compelling reasons, even a child under seven
may be ordered separated from the mother (do.). This is as it should be, for in the
continual evolution of legal institutions, the patria potestas has been transformed from
the jus vitae ac necis (right of life and death) of the Roman law, under which the
offspring was virtually a chattel of his parents, into a radically different institution, due
to the influence of Christian faith and doctrines. The obligational aspect is now supreme.
As pointed out by Puig Pena, now "there is no power, but a task; no complex of rights (of
parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the
minor."
As a result, the right of parents to the company and custody of their children is but
ancillary to the proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training and development
(Civil Code, Art. 356). prcd
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are mandated by the Family
Code to take into account allrelevant considerations. If a child is under seven years of age, the law presumes
that the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome
by "compelling reasons." If a child is over seven, his choice is paramount but, again, 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.
In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind
celebrated her seventh birthday on August 16, 1993 while Reginald reached the same age on January 12,
1985. Both are studying in reputable schools and appear to be fairly intelligent children, quite capable of
thoughtfully determining the parent with whom they would want to live. Once the choice has been made,
the burden to the court to investigate if the parent thus chosen is unfit to assume parental authority and
custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing the
records to discover the choice of the children and rather than verifying whether that
parent is fit or unfit, respondent court simply followed statutory presumptions and
general propositions applicable to ordinary or common situations. The seven-year age
limit was mechanically treated as an arbitrary cut off period and not a guide based on a
strong presumption.
 A scrutiny of the pleadings in this case indicates that Teresita, or at least, her
counsel are more intent on emphasizing the "torture and agony" of a mother separated
from her children and the humiliation she suffered as a result of her character being
made a key issue in court rather than the feelings and future, the best interest and
welfare of her children. While the bonds between a mother and her small child are
special in nature, either parent, whether father or 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. prLL
We are inclined to sustain the findings and conclusions of the regional trial
court because it gave greater attention to the choice of Rosalind and considered in detail
all the relevant factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a child
psychologist, Rita Flores Macabulos, to determine the effects of uprooting her from the
Assumption College where she was studying. Four different tests were administered. The
results of the tests are quite revealing. The responses of Rosalind about her mother were
very negative, causing the psychologist to delve deeper into the child's anxiety. Among
the things revealed by Rosalind was an incident where she saw her mother hugging and
kissing a "bad" man who lived in their house and worked for her father. Rosalind refused
to talk to her mother even on the telephone. She tended to be emotionally emblazed
because of constant fears that she may have to leave school and her aunt's family to go
back to the United States to live with her mother. The 5-1/2 page report deals at length
with feelings of insecurity and anxiety arising from strong conflict with the mother. The
child tried to compensate by having fantasy activities. All of the 8 recommendations of
the child psychologist show that Rosalind chooses petitioners over the private
respondent and that her welfare will be best served by staying with them (pp. 199-
205, Rollo).
At about the same time, a social welfare case study was conducted for the purpose of securing
the travel clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez,
stated that the child Rosalind refused to go back to the United States and be reunited with her mother. She
felt unloved and uncared for. Rosalind was more attached to her Yaya who did everything for her and
Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The
application for travel clearance was recommended for denial (pp. 206-209, Rollo). LLphil
Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the
date when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This
argument is flawed. Considerations involving the choice made by a child 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 udjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the
welfare, the best interests, the benefit, and the good of the child must be determined as of the time that
either parent is chosen to be the custodian. At the present time, both children are over 7 years of age and
are thus perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had tearful reunion in the trial court, with
the children crying, grabbing, and embracing her to prevent the father from taking them away from her. We
are more inclined to believe the father's contention that the children ignored Teresita in court because such
an emotional display as described by Teresita in her pleadings could not have been missed by the trial court.
Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally observed the
children and their mother in the courtroom. What the Judge found is diametrically opposed to the
contentions of respondent Teresita. The Judge had this to say on the matter:
And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more
understanding, especially as her conduct and demeanor in the courtroom (during most
of the proceedings) or elsewhere (but in the presence of the undersigned presiding
judge) demonstrated her ebullient temper that tended to corroborate the alleged
violence of her physical punishment of the children (even if only for ordinary disciplinary
purposes) and emotional instability, typified by her failure (or refusal?) to show
deference and respect to the Court and the other parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence and impartiality of the expert witnesses.
Respondent court, in turn, states that the trial court should have considered the fact that Reynaldo and his
sister, herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was taken into
account by the trial court which stated that the allegations of bias and unfairness made by Teresita against
the psychologist and social worker were not substantiated.
The trial court stated that the professional integrity and competence of the expert witnesses and
the objectivity of the interviews were unshaken and unimpeached. We might add that their testimony
remain uncontroverted. We also note that the examinations made by the experts were conducted in the
late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December, 1992.
Thus, the examinations were at the time not intended to support petitioners' position in litigation, because
there was then not even an impending possibility of one. That they were subsequently utilized in the case a
quo when it did materialize does not change the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the court must be construed to have been
presented not to sway the court in favor of any of the parties, but to assist the court in the determination of
the issue before it. The persons who effected such examinations were presented in the capacity of expert
witnesses testifying on matters within their respective knowledge and expertise. On this matter, this Court
had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]). LexLib
The fact that, in a particular litigation, an NBI expert examines certain contested
documents, at the request, not of a public officer or agency of the Government, but of a
private litigant, does not necessarily nullify the examination thus made. Its purpose,
presumably, to assist the court having jurisdiction over said litigation, in the
performance of its duty to settle correctly the issues relative to said documents. Even a
non-expert private individual may examine the same, if there are facts within his
knowledge which may help the court in the determination of said issue. Such
examination, which may properly be undertaken by a non-expert private individual, does
not, certainly become null and void when the examiner is an expert and/or an officer of
the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate
Appellate Court, et al. (185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert testimonies, they may place
whatever weight they choose upon such testimonies in accordance with the facts of the
case. The relative weight and sufficiency of expert testimony is peculiarly within the
 province of the trial court to decide, considering the ability and character of the witness,
his actions upon the witness stand, the weight and process of the reasoning by which he
has supported his opinion, his possible bias in favor of the side for whom he testifies, the
fact that he is a paid witness, the relative opportunities for study and observation of the
matters about which he testifies, and any other matters which reserve to illuminate his
statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effects (20
Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose ruling
thereupon is not reviewable in the absence of an abuse of that discretion.
(p. 359.)
It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses'
character and to observe their respective demeanor that the trial court opted to rely on their testimony,
and we believe that the trial court was correct in its action.
Under direct examination on February 4, 1993, Social Worker Lopez stated that Rosalind and her
aunt were about to board a plane when they were off-loaded because there was no required clearance.
They were referred to her office, at which time Reginald was also brought along and interviewed. One of the
regular duties of Social Worker Lopez in her job appears to be the interview of minors who leave for abroad
with their parents or other persons. The interview was for purposes of foreign travel by a 5-year old child
and had nothing to do with any pending litigation. On cross-examination, Social Worker Lopez stated that
her assessment of the minor's hatred for her mother was based on the disclosures of the minor. It is
inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics, and the public
trust reposed on a person of her position in the course of doing her job by falsely testifying just to support
the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A.
degree holder also in Psychology with her thesis graded "Excellent." She was a candidate for a doctoral
degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of the interview but
Ms. Macabulos services were secured because Assumption College wanted an examination of the child for
school purposes and not because of any litigation. She may have been paid to examine the child and to
render a finding based on her examination, but she was not paid to fabricate such findings in favor of the
party who retained her services. In this instance it was not even petitioner Reynaldo but the school
authorities who initiated the same. It cannot be presumed that a professional of her potential and stature
would compromise her professional standing. llcd
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a
subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's
fellow NSC employees.
3. She is incapable of providing the children with necessities and conveniences
commensurate to their social standing because she does not even own any
home in the Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling reasons under the law
which would justify depriving her of custody over the children; worse, she claims, these findings are non-
existent and have not been proved by clear and convincing evidence.
Public and private respondents give undue weight to the matter of a child under 7 years of age
not to be separated from the mother, without considering what the law itself denominates as compelling
reasons or relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court
stated that it found no difficulty in not awarding custody to the mother, it being in the best interest of the
child "to be freed from the obviously unwholesome, not to say immoral influence, that the situation where
[the mother] had placed herself . . . might create in the moral and social outlook of [the child] who was in
her formative and most impressionable stage. . . ."
Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They
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 an "unfit" person
under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of
attention and care which the mother is not in a position to extend.
The argument that the charges against the mother are false is not supported by the records. The
findings of the trial court are based on evidence.
Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in
California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later,
she had already driven across the continental United States to commence living with another man,
petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute this
disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo,
Teresita tried to picture Reynaldo as a rapist, alleging further that she told Reynaldo about her marriage to
Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig
RTC lent no weight to such tale. And even if this story were given credence, it adds to and not subtracts
from the conviction of this Court about Teresita's values. Rape is an insidious crime against privacy.
Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the
potential victim is averse to the act. The implication created is that the act would be acceptable if not for
the prior marriage. cdrep
More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the
rape incident itself is unlikely against a woman who had driven three days and three nights from California,
who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who
immediately thereafter started to live with him in a relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various witnesses that while
married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there in the
house of petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the National Steel
Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee, in the
latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by the
traumatic effect of seeing her mother hugging and kissing a boarder in their house. The record also shows
that it was Teresita who left the conjugal home and the children, bound for California. When Perdencio
Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his company in a Cebu
hotel, staying in one room and taking breakfast together. More significant is that letters and written
messages from Teresita to Perdencio were submitted in evidence (p. 12, RTC Decision).
 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 old and their clear choice is the father, but the illicit or immoral activities of the mother had
already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at
least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo).
Respondent court's finding that the father could not very well perform the role of a sole parent
and substitute mother because his job is in the United States while the children will be left behind with their
aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He
was sent there to oversee the purchase of a steel mill component and various equipment needed by the
National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to keep
him there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the
completion of his assignment abroad and of his permanent return to the Philippines (ff. p. 263, Rollo).
The law is more than satisfied by the judgment of the trial court. The children are now both over
seven years old. Their choice of the parent with whom they prefer to stay is clear from the record. From all
indications, Reynaldo is a fit person, thus meeting the two requirements found in the first paragraph of
Article 213 of the Family Code. The presumption under the second paragraph of said article no longer
applies as the children are over seven years. Assuming that the presumption should have persuasive value
for children only one or two years beyond the age of seven years mentioned in the statute, there are
compelling reasons and relevant considerations not to grant custody to the mother. The children
understand the unfortunate shortcomings of their mother and have been affected in their emotional
growth by her behavior.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed
and set aside, and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial
Region stationed in Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No.
Q-92-14206 awarding custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo
Espiritu, is reinstated. No special pronouncement is made as to costs.
SO ORDERED.
Feliciano, Romero, Vitug and Francisco, JJ., concur.
SECOND DIVISION
[G.R. No. 116773. January 16, 1997.]
TERESITA SAGALA-ESLAO, petitioner, vs. COURT OF APPEALS and
MARIA PAZ CORDERO-OUYE, respondents.
Paulino P. Santiago Jr. for petitioner.
Restituto R. Villanueva for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; CONSTRUED. In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, this
Court stated, viz: ". . . [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of
the children's 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.' "Parental authority and responsibility are inalienable and may not
be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal,
the allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an
orphan institution. When a parent entrusts the custody of a minor to another, such as a friend 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 of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. The
father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their
custody and company. (Family Code). LexLib
2. ID.; ID.; ID.; WHEN WAIVER THEREOF MAY BE ALLOWED BY LAW. Thus, instant petition, when private respondent
entrusted the custody of her minor child the petitioner, what she gave to the latter was merely temporary custody and it did
not constitute abandonment or renunciation of parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution which do not
appear in the case at bar.
3. ID.; ID.; ID.; AS A RULE, PARENTS HAVE THE NATURAL RIGHT TO THE CUSTODY OF THEIR MINOR CHILDREN. 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.
(Skedas vs. Skalaroff, 84 RI 206, 122 A2d 444.) cdll
DECISION
TORRES, JR., J p:
Children begin by loving their parents. After a time they judge them. Rarely, if ever, do they forgive them. 1 Indeed,
parenthood is a riddle of no mean proportions except for its mission. Thus, a mother's concern for her child's custody is
undying is a mother's love.
The right of the mother to the custody of her daughter is the issue in the case at bar.
In this petition for review, Teresita Sagala-Eclao seeks the reversal of the Court of Appeals decision 2 dated March 25, 1994,
which affirmed the trial court's judgment granting the petition of Maria Paz Cordero-Ouye to recover the custody of her minor
daughter from her mother-in-law, Teresita Sagala-Eslao.
As found by the Court of Appeals, the facts of the case are as follows:
"From the evidence, it appears that on June 22, 1984, petitioner Maria Paz Cordero-Ouye and
Reynaldo Eslao were married; 3 after their marriage, the couple stayed with respondent Teresita
Eslao, mother of the husband, at 1825, Road 14, Fabie Estate, Paco, Manila; that out of their
marriage, two children were begotten, namely, Leslie Eslao who was born on February 23, 1986 and
Angelica Eslao who was born on April 20, 1987; 4 in the meantime, Leslie was entrusted to the care
and custody of petitioner's mother in Sta. Ana, Pampanga, while Angelica stayed with her parents at
respondent' s house; on August 6, 1990, petitioner's husband Reynaldo Eslao died; 5 petitioner
intended to bring Angelica with her to Pampanga but the respondent prevailed upon her to entrust
the custody of Angelica to her, respondent reasoning out that her son just died and to assuage her
grief therefor, she needed the company of the child to at least compensate for the loss of her late
son. In the meantime, the petitioner returned to her mother's house in Pampanga where she
stayed with Leslie.
"Subsequently, petitioner was introduced by her auntie to Dr. James Manabu-Ouye, a Japanese-
American, who is an orthodentist practicing in the United States; their acquaintance blossomed into
a meaningful relationship where on March 18, 1992, the petitioner and Dr. James Ouye decided to
get married; less than ten months thereafter, or on January 15, 1993, the petitioner migrated to San
Francisco, California, USA, to join her new husband. At present, the petitioner is a trainee at the
Union Bank in San Francisco, while her husband is a progressive practitioner of his profession who
owns three cars, a dental clinic and earns US$5,000 a month. On June 24, 1993, the petitioner
returned to the Philippines to be reunited with her children and bring them to the United States;
the petitioner then informed the respondent about her desire to take custody of Angelica and
explained that her present husband, Dr. James Ouye, expressed his willingness to adopt Leslie and
Angelica and to provide for their support and education; however, respondent resisted the idea by
way of explaining that the child was entrusted to her when she was ten days old and accused the
petitioner of having abandoned Angelica. Because of the adamant attitude of the respondent, the
petitioner then sought the assistance of a lawyer, Atty. Mariano de Joya, Jr., who wrote a letter to
the respondent demanding for the return of the custody of Angelica to her natural mother 6 and
when the demand remain[ed] unheeded, the petitioner instituted the present action." 7
After the trial on the merits, the lower court rendered its decision, the dispositive portion of which reads:
"WHEREFORE, finding the petition to be meritorious, the Court grants the same and let the
corresponding writ issue. As a corollary, respondent Teresita Sagala-Eslao or anyone acting under
her behalf is hereby directed to cause the immediate transfer of the custody of the minor Angelica
Cordero Eslao, to her natural mother, petitioner Maria Paz Corder-Ouye.
"No pronouncement as to costs.
"SO ORDERED."
On appeal, the respondent court affirmed in full the decision of the trial court.
Hence, the instant petition by the minor's paternal grandmother, contending that the Court of Appeals erred:
I
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID NOT ABANDON MINOR,
ANGELICA ESLAO, TO THE CASE AND CUSTODY OF THE PETITIONER TERESITA SAGALA-ESLAO.
II
IN RULING THAT THERE WAS NO COMPELLING REASON TO SEPARATE MINOR, ANGELICA ESLAO,
FROM PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR OF PETITIONER TERESITA
SAGALA-ESLAO.
III
IN NOT FINDING THAT PETITIONER TERESITA SAGALA-ESLAO, IS FIT TO BE GIVEN THE CUSTODY OF
MINOR, ANGELICA ESLAO.
The petition is without merit.
Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take care of Angelica; that she had managed to raise 12 children of her own
herself; that she has the financial means to carry out her plans for Angelica; that she maintains a store which earns a net
income of about P500 a day, she gets 900 a month as pension for the death of her husband, she rents out rooms in her house
which she owns, for which she earns a total of P6,000 a month, and that from her gross income of roughly P21,000, she spends
about P10,000 for the maintenance of her house.
Despite the foregoing, however, and petitioner's "genuine desire to remain with said child, that would qualify her to have
custody of Angelica," the trial court's disquisition, in consonance with the provision that the child's welfare is always the
paramount consideration in all questions concerning his care and custody 8 convinced this Court to decide in favor of private
respondent, thus:
"On the other hand, the side of the petitioner must also be presented here. In this case, we see a
picture of a real and natural mother who is
'. . . legitimately, anxiously, and desperately trying to get back her child in
order to fill the void in her heart and existence. She wants to make up for what she has
failed to do for her boy during the period when she was financially unable to help him
and when she could not have him in her house because of the objection of the father.
Now that she has her own home and is in a better financial condition, she wants her
child back, and we repeat that she has not and has never given him up definitely or with
any idea or permanence.' 9
"The petitioner herein is married to an Orthodontist who has a lucrative practice or his
profession in San Francisco, California, USA. The petitioner and her present husband
have a home of their own and they have three cars. The petitioner's husband is willing to
adopt the petitioner's children. If the probability is that they will be afforded a bright
future. Contrast this situation with the one prevailing in the respondent's
[grandmother's] house. As admitted by the respondent, four of the rooms in her house
are being rented to other persons with each room occupied by 4 to 5 persons. Added to
these persons are the respondent's 2 sons, Samuel and Alfredo, and their respective
families (ibid., p. 54) and one can just visualize the kind of atmosphere pervading
thereat. And to aggravate the situation, the house has only 2 toilets and 3 faucets.
Finally, considering that in all controversies involving the custody of minors, the
foremost criterion is the physical and moral well being of the child taking into account
the respective resources and social and moral well being of the child taking into account
the respective resources and social and moral situations of the contending parties
(Union III vs. Mariano, 101 SCRA 183), the Court is left with no other recourse but to
grant the writ prayed for." 10
Petitioner further contends that the respondent court erred in finding that there was no abandonment committed by the
private respondent; that while judicial declaration of abandonment of the child in a case filed for the purpose is not here
obtaining as mandated in Art. 229 of the Family Code because petitioner failed to resort to such judicial action, it does not ipso
facto follow that there was in fact no abandonment committed by the private respondent. cdt
Petitioner also argues that it has been amply demonstrated during the trial that private respondent had indeed abandoned
Angelica to the care and custody of the petitioner; that during all the time that Angelica stayed with petitioner, there were only
three instances or occasions wherein the private respondent Angelica on important occasions, such as her birthday, and
neither did the former giver her cards or gifts, "not even a single candy;" 11 that while private respondent claims otherwise
and that she visited Angelica "many times" and insists that she visited Angelica as often as four times a month and gave her
remembrances such as candies and clothes, she would not even remember when the fourth birthday of Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, 12 we stated, viz.:
". . . [Parental authority] is a mass of rights and obligations which the
law grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses. 13 As regards
parental authority, 'there is no power, but a task; no complex of
rights, but a sum of duties; no sovereignty but a sum of duties; no
sovereignty but a sacred trust for the welfare of the minor.' 14
"Parental authority and responsibility are inalienable and may not be transferred or renounced
except in cases authorized by law. 15The 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 children's home or an orphan institution. 16 When a parent entrusts the custody of a
minor to another, such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental authority. 17 Even if a
definite renunciation is manifest, the law still disallows the same. 18
"The father and mother, being the natural guardians of unemancipated children, are duty-bound
and entitled to keep them in their custody and company." 19
Thus, in the instant petition, when private respondent entrusted the custody of her minor child to the petitioner, what she
gave to the latter was merely temporary custody and it 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 only in cases
of adoption, guardianship and surrender to a children's home or an orphan institution which do not appear in the case at bar.
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 estate of decisions of the courts, but derives from the nature of the parent
relationship. 20
IN VIEW WHEREOF, the decision appealed from dated March 25, 1994 being in accordance with law and the evidence, the
same is hereby AFFIRMED and the petition DISMISSED for lack of merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.
SECOND DIVISION
[G.R. No. 111180. November 16, 1995.]
DAISIE T. DAVID, petitioner, vs. COURT OF APPEALS, RAMON R.
VILLAR, respondents.
Orlando R. Pangilinan for petitioner.
Danilo G. Pineda for private respondent.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; HABEAS CORPUS; PROPER IN CASE AT BAR. In the
case at bar, Christopher J. is an illegitimate child since at the time of his conception, his father, private
respondent Ramon R. Villar, was married to another woman other than the child's mother. As such,
pursuant to Art. 176 of the Family Code, Christopher J. is under the parental authority of his mother, the
herein petitioner, who, as a consequence of such authority, is entitled to have custody of him. Since,
admittedly, petitioner has been deprived of her rightful custody of her child by private respondent, she is
entitled to issuance of the writ of habeas corpus. Indeed, Rule 102, 1 makes no distinction between the
case of a mother who is separated from her husband and is entitled to the custody of her child and that of a
mother of an illegitimate child who, by law, is vested with sole parental authority, but is deprived of her
rightful custody of her child. cdasia
2. ID.; ID.; ID.; GRANT OF SUPPORT; JUSTIFIED. The Regional Trial Court ordered private
respondent to give temporary support to petitioner in the amount of P3,000.00 a month, pending the filing
of an action for support, after finding that private respondent did not give any support to his three children
by Daisie, except the meager amount of P500.00 a week which he stopped giving them on June 23, 1992. He
is a rich man who professes love for his children. In fact he filed a motion for the execution of the decision
of the Court of Appeals, alleging that he had observed his son "to be physically weak and pale because of
malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody
of the respondent." He prayed that he be given the custody of the child so that he can provide him with the
"proper care and education." Although the question of support is proper in a proceeding for that purpose,
the grant of support in this case is justified by the fact that private respondent has expressed willingness to
support the minor child. The order for payment of allowance need not be conditioned on the grant to him
of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his
obligation either by paying the allowance fixed by the court or by receiving and maintaining in the family
dwelling the person who is entitled to support unless, in the latter case, there is "a moral or legal obstacle
thereto."
3. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; CHOICE OF MINOR CHILD OVER SEVEN
YEARS OF AGE MUST BE RESPECTED BY THE COURT. In the case at bar, as has already been pointed out,
Christopher J., being less than seven years of age at least at the time the case was decided by the RTC,
cannot be taken from the mother's custody. Even now that the child is over seven years of age, the mother's
custody over him will have to be upheld because the child categorically expressed preference to live with his
mother. Under Art. 213 of the Family Code, courts must respect the "choice of the child over seven years of
age, unless the parent chosen is unfit" and here it has not been shown that the mother is in any way unfit to
have custody of her child. Indeed, if private respondent loves his child, he should not condition the grant of
support for him on the award of his custody to him (private respondent). LLpr
DECISION
MENDOZA, J p:
Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar, a
businessman in Angeles City. Private respondent is a married man and the father of four children, all grown-
up. After a while, the relationship between petitioner and private respondent developed into an intimate
one, as a result of which a son, Christopher J., was born on March 9, 1985 to them. Christopher J. was
followed by two more children, both girls, namely Christine, born on June 9, 1986, and Cathy Mae on April
24, 1988.
The relationship became known to private respondent's wife when Daisie took Christopher J. to
Villar's house at Villa Teresa in Angeles City sometime in 1986 and introduced him to Villar's legal wife.
After this, the children of Daisie were freely brought by Villar to his house as they were
eventually accepted by his legal family.
In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age, to go
with his family to Boracay. Daisie agreed, but after the trip, Villar refused to give back the child. Villar said
he had enrolled Christopher J. at the Holy Family Academy for the next school year.
On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J.
After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of
the petitioner and against the respondent:
1. the rightful custody of the minor Christopher J. T. David is hereby given to the natural
mother, the herein petitioner Daisie T. David;
2. respondent is hereby ordered to give a temporary support of P3,000.00 a month to
the subject minor Christopher J. T. David, Christine David and Cathy Mae David to take effect upon
the finality of this decision; and
3. to pay the costs of this suit.
SO ORDERED.
On appeal, the Court of Appeals reversed, holding:
We agree with the respondent-appellant's view that this is not proper in a habeas corpus case.
Law and jurisprudence wherein the question of custody of a minor child may be decided in a habeas
corpus case contemplate a situation where the parents are married to each other but are separated.
This is so because under the Family Code, the father and mother have joint parental authority over
their legitimate children and in case of separation of the parents there is need to determine rightful
custody of their children. The same does not hold true in an adulterous relationship, as in the case at
bar, the child born out of such a relationship is under the parental authority of the mother by
express provision of the law. Hence, the question of custody and support should be brought in a
case singularly filed for the purpose. In point of fact, this is more advisable in the case at bar because
the trial court did not acquire jurisdiction over the other minor children of the petitioner-appellee
and respondent-appellant and, therefore, cannot properly provide for their support.
Admittedly, respondent-appellant is financially well-off, he being a very rich businessman; whereas,
petitioner-appellee depends upon her sisters and parents for support. In fact, he financially
supported petitioner-appellee and her three minor children. It is, therefore, for the best interest of
Christopher J. that he should temporarily remain under the custody of respondent-appellant until
the issue on custody and support shall have been determined in a proper case.
WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW ONE ENTERED dismissing
the petition for habeas corpus on Special Proceeding No. 4489.
Daisie in turn filed this petition for review of the appellate court's decision.
 Rule 102, 1 of the Rules of Court provides that "the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto."
It is indeed true, as the Court of Appeals observed, that the determination of the right to the
custody of minor children is relevant in cases where the parents, who are married to each other, are for
some reason separated from each other. It does not follow, however, that it cannot arise in any other
situation. For example, in the case of Salvaa v. Gaela, 1 it was held that the writ ofhabeas corpus is the
proper remedy to enable parents to regain the custody of a minor daughter even though the latter be in the
custody of a third person of her free will because the parents were compelling her to marry a man against
her will.
In the case at bar, Christopher J. is an illegitimate child since at the time of his conception, his
father, private respondent Ramon R. Villar, was married to another woman other than the child's mother.
As such, pursuant to Art. 176 of the Family Code, Christopher J. is under the parental authority of his
mother, the herein petitioner, who, as a consequence of such authority, is entitled to have custody of
him. 2 Since, admittedly, petitioner has been deprived of her rightful custody of her child by private
respondent, she is entitled to issuance of the writ of habeas corpus. cdtai
Indeed, Rule 102, 1 makes no distinction between the case of a mother who
is separated from her husband and is entitled to the custody of her child and that of a
mother of an illegitimate child who, by law, is vested with sole parental authority, but is
deprived of her rightful custody of her child.
The fact that private respondent has recognized the minor child may be a
ground for ordering him to give support to the latter, but not for giving him custody of
the child. Under Art. 213 of the Family Code, "no child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise." 3
Nor is the fact that private respondent is well-off a reason for depriving
petitioner of the custody of her children, especially considering that she has been able to
rear and support them on her own since they were born. Petitioner is a market vendor
earning from P2,000 to P3,000 per month in 1993 when the RTC decision was rendered.
She augments her income by working as secretary at the Computer System Specialist,
Inc. earning a monthly income of P4,500.00. She has an arrangement with her employer
so that she can personally attend to her children. She works up to 8:00 o'clock in the
evening to make up for the time lost during the day. That she receives help from her
parents and sister for the support of the three children is not a point against her.
Cooperation, compassion, love and concern for every member of the family are
characteristics of the close family ties that bind the Filipino family and have made it what
it is.
them on June 23, 1992. He is a rich man who professes love for his children. In fact he
filed a motion for the execution of the decision of the Court of Appeals, alleging that he
had observed his son "to be physically weak and pale because of malnutrition and
deprivation of the luxury and amenities he was accustomed to when in the former
custody of the respondent." He prayed that he be given the custody of the child so that
he can provide him with the "proper care and education."
Although the question of support is proper in a proceeding for that purpose, the grant of support
in this case is justified by the fact that private respondent has expressed willingness to support the minor
child. The order for payment of allowance need not be conditioned on the grant to him of custody of the
child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his obligation either by
paying the allowance fixed by the court or by receiving and maintaining in the family dwelling the person
who is entitled to support unless, in the latter case, there is "a moral or legal obstacle thereto."
In the case at bar, as has already been pointed out, Christopher J., being less than seven years of
age at least at the time the case was decided by the RTC, cannot be taken from the mother's custody. Even
now that the child is over seven years of age the mother's custody over him will have to be upheld because
the child categorically expressed preference to live with his mother. Under Art. 213 of the Family Code,
courts must respect the "choice of the child over seven years of age, unless the parent chosen is unfit" and
here it has not been shown that the mother is in any way unfit to have custody of her child. Indeed, if
private respondent loves his child, he should not condition the grant of support for him on the award of his
custody to him (private respondent).
WHEREFORE, the decision of the Court of Appeals is REVERSED and private respondent is
ORDERED to deliver the minor Christopher J. T. David to the custody of his mother, the hereinafter
petitioner, and to give him temporary support in the amount of P3,000.00 pending the fixing of the amount
of support in an appropriate action.
SO ORDERED.

Daisie and her children may not be enjoying a life of affluence that private
respondent promises if the child lives with him. It is enough, however, that petitioner is
earning a decent living and is able to support her children according to her means.
The Regional Trial Court ordered private respondent to give temporary
support to petitioner in the amount of P3,000.00 a month, pending the filing of an action
for support, after finding that private respondent did not give any support to his three
children by Dasie, except the meager amount of P500.00 a week which he stopped giving
SECOND DIVISION
[G.R. No. 168785. February 5, 2010.]
HERALD BLACK DACASIN, petitioner, vs. SHARON DEL MUNDO
DACASIN, respondent.
DECISION
CARPIO, J p:
The Case
For review 1 is a dismissal 2 of a suit to enforce a post-foreign divorce child custody agreement
for lack of jurisdiction.
The 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, 19th Judicial Circuit,
Lake County, Illinois (Illinois court) a divorce decree against petitioner. 3 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 (Agreement4 ) 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. HTDCAS
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 court's retention of jurisdiction to enforce the divorce decree.
The Ruling of the Trial Court
In its Order dated 1 March 2005, the trial court sustained respondent's motion and dismissed the
case for lack of jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit
considering the Illinois court's retention of jurisdiction to enforce its divorce decree, including its order
awarding sole custody of Stephanie to respondent; (2) the divorce decree is binding on petitioner following
the "nationality rule" prevailing in this jurisdiction; 5 and (3) the Agreement is void for contravening Article
2035, paragraph 5 of the Civil Code 6 prohibiting compromise agreements on jurisdiction. 7
Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by
respondent is void. Thus, the divorce decree is no bar to the trial court's exercise of jurisdiction over the
case.
In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the
case of respondent, the divorce decree is binding on petitioner under the laws of his nationality.
Hence, this petition.
Petitioner submits the following alternative theories for the validity of the Agreement to justify
its enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms
of child custody from sole (maternal) to joint; 8 or (2) the Agreement is independent of the divorce decree
obtained by respondent.
The Issue
The question is whether the trial court has jurisdiction to take cognizance of petitioner's suit and
enforce the Agreement on the joint custody of the parties' child. IaAScD
The Ruling of the Court
The trial court has jurisdiction to entertain petitioner's suit but not to enforce the Agreement
which is void. However, factual and equity considerations militate against the dismissal of petitioner's suit
and call for the remand of the case to settle the question of Stephanie's custody.
Regional Trial Courts Vested with Jurisdiction
to Enforce Contracts
Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial
court, statutory law vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable
of pecuniary estimation. 9 An action for specific performance, such as petitioner's suit to enforce the
Agreement on joint child custody, belongs to this species of actions. 10 Thus, jurisdiction-wise, petitioner
went to the right court.
Indeed, the trial court's refusal to entertain petitioner's suit was grounded not on its lack of
power to do so but on its thinking that the Illinois court's divorce decree stripped it of jurisdiction. This
conclusion is unfounded. What the Illinois court retained was "jurisdiction . . . for the purpose
of enforcing all and sundry the various provisions of [its] Judgment for Dissolution." 11Petitioner's suit
seeks the enforcement not of the "various provisions" of the divorce decree but of the post-divorce
Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois court's so-called
"retained jurisdiction."
Petitioner's Suit Lacks Cause of Action
The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary
to law. cSATEH
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. 12 Otherwise, the contract is denied legal
existence, deemed "inexistent and void from the beginning." 13 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 Agreement's joint child custody
stipulations. 14
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 15(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 . . . ." 16 (This statutory awarding of sole parental
custody 17 to the mother is mandatory, 18 grounded on sound policy
consideration, 19 subject only to a narrow exception not alleged to obtain here.20 )
Clearly then, the Agreement's 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. 21 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. 22 ITADaE
It will not do to argue that the second paragraph of Article 213 of the Family
Code applies only to judicial custodial agreements based on its text that "No child under
seven years of age shall be separated from the mother, unless the court finds compelling
reasons to order otherwise." To limit this provision's enforceability to court sanctioned
agreements while placing private agreements beyond its reach is to sanction a double
standard in custody regulation of children under seven years old of separated parents.
This effectively empowers separated parents, by the simple expedient of avoiding the
courts, to subvert a legislative policy vesting to the separated mother sole custody of her
children under seven years of age "to avoid a tragedy where a mother has seen her baby
torn away from her." 23 This ignores the legislative basis that "[n]o man can sound the
deep sorrows of a mother who is deprived of her child of tender age." 24
It could very well be that Article 213's bias favoring one separated parent
(mother) over the other (father) encourages paternal neglect, presumes incapacity for
joint parental custody, robs the parents of custodial options, or hijacks decision-making
between the separated parents. 25 However, these are objections which question the
law's wisdom not its validity or uniform enforceability. The forum to air and remedy
these grievances is the legislature, not this Court. At any rate, the rule's seeming
harshness or undesirability is tempered by ancillary agreements the separated parents
may wish to enter such as granting the father visitation and other privileges. These
arrangements are not inconsistent with the regime of sole maternal custody under the
second paragraph of Article 213 which merely grants to the mother final authority on the
care and custody of the minor under seven years of age, in case of disagreements.
Further, the imposed custodial regime under the second paragraph of Article
213 is limited in duration, lasting only until the child's seventh year. From the eighth year
until the child's emancipation, the law gives the separated parents freedom, subject to
the usual contractual limitations, to agree on custody regimes they see fit to adopt.
Lastly, even supposing that petitioner and respondent are not barred from entering into
the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement
by asserting sole custody over Stephanie. Respondent's act effectively brought the
parties back to ambit of the default custodial regime in the second paragraph of Article
213 of the Family Code vesting on respondent sole custody of Stephanie.
Nor can petitioner rely on the divorce decree's alleged invalidity not
because the Illinois court lacked jurisdiction or that the divorce decree violated Illinois
law, but because the divorce was obtained by his Filipino spouse 26 to support the
Agreement's enforceability. The argument that foreigners in this jurisdiction are not
bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo 27 settled the
matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained
abroad. 28 There, we dismissed the alien divorcee's Philippine suit for accounting of
alleged post-divorce conjugal property and rejected his submission that the foreign
divorce (obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:
There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is
contending in this case is that the divorce is not valid and binding in this jurisdiction, the same
being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national
law. In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage.
xxx xxx xxx
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his right over the alleged conjugal property.
(Emphasis supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera 29 to dismiss criminal complaints for adultery
filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse
because he no longer qualified as "offended spouse" entitled to file the complaints under Philippine
procedural rules. Thus, it should be clear by now that a foreign divorce decree carries as much validity
against the alien divorcee in this jurisdiction as it does in the jurisdiction of the alien's nationality,
irrespective of who obtained the divorce. TcSAaH
The Facts of the Case and Nature of Proceeding Justify Remand
Instead of ordering the dismissal of petitioner's suit, the logical end to its lack of cause of action,
we remand the case for the trial court to settle the question of Stephanie's 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. 30 As the question of custody is already before the trial court and the child's 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 court's jurisdiction, submit
evidence on the custodial arrangement best serving Stephanie's 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 child's best interest. 31
WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005
of the Regional Trial Court of Makati City, Branch 60. The case is REMANDED for further
proceedings consistent with this ruling.
SO ORDERED.
 Brion, Del Castillo and Perez, JJ., concur.
Abad, J., see separate opinion.
Separate Opinions
ABAD, J.:
I agree with the reasons that the majority of the Court gave in support of the decision, except
one. I am uncomfortable with the proposition that an agreement between the mother and the father on a
joint custody over a child below seven years of age is void for being contrary to law and public policy. True,
the law provides in Article 363 of the Civil Code that "No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure." The State can think up
ways of protecting the child. But the 1987 Constitution acknowledges in Article II, Section 12, the natural
and primary right and duty of parents to nurture their children and that the State must support them in this
respect. 1
I submit that, in the matter of child custody, the mutual will of the child's parents takes
precedence in the absence of circumstances that justify recourse to the law. The law becomes relevant, only
as a default, if a separated couple cannot agree on the custody of their child. The law should not supplant
parental discretion or unnecessarily infringe on parental authority.
Parents have a natural and fundamental right to autonomy in the care, custody, and upbringing of their children.
The Family Code recognizes this in Article 209:
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) CSIDTc
The State ought not to interfere with the right of parents to bring up their child unless its
exercise causes potential harm to him. The State steps in, through the law, only if there are compelling
reasons to do so. State intrusion is uncalled for where the welfare of a child is not jeopardized.
Regardless of marital circumstances, the mother and the father are presumed to be fit and competent to act in the
best interest of their child. They can agree to share parental authority or, if you will, parental custody even as they decide to
live under separate roofs. In a voluntary joint custody the mother might want to keep the child in her home during schooldays
but allow the father to have him on weekends. And they could agree on some device for arriving at a consensus on where the
child will study and how his spiritual needs are to be attended to.
The law does not take away from a separating couple the authority and competence to determine what is best for
their child. If they resolve on their own that shared parental custody is in their child's best interest, then the law and the courts
have no business vetoing their decision. The parents enjoy a primary right to make such decision. I cannot concede that, where
the child is below seven years of age, any agreement that diminishes the mother's absolute custody over him is void.
The second paragraph of Article 213 of the Family Code should not be read as prohibiting separated couples from
agreeing to a custody arrangement, other than sole maternal custody, for their child of tender age. The statutory preference
for the mother's custody comes into play only when courts are compelled to resolve custody fights between separated
parents. Where the parents settle the matter out of court by mutual agreement, the statutory preference reserved to the
mother should not apply. ATEHDc
A reading of the entire text of Article 213 shows that the second paragraph applies only to custody disputes that
have reached the courtroom. Thus:
Article 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.
It is unmistakable that the legislative policy is to vest the separated mother with physical custody of the child under
seven years old, in cases where the courts are called upon to designate a parent for the exercise of parental authority. The
second sentence of the first paragraph and the second paragraph itself merely qualify the general rule expressed in the first
sentence that "parental authority shall be exercised by the parent designated by the Court," in case of parental separation.
In choosing the parent who will exercise parental authority, the court must take into account all relevant
considerations. One of these is the child's age, as the court is directed to give due regard to the child's choice, if the child is
more than seven years of age. If the child, however, is below seven years of age, the court cannot separate the child from the
mother, except for compelling reasons. This is the import of the entire provision. TAHcCI
Thus, no legislative policy is violated if separated parents are allowed to voluntarily agree to a child custody
arrangement other than sole maternal custody. It is not the policy of the state to prohibit separated parents from
compromising on child custody even if the child is of tender age. On the contrary, voluntary custody agreements are generally
favored as it can only work for the best interest of the child.
It is not logical to say that the Court would be subverting the legislative policy of avoiding "a tragedy where a
mother has seen her baby torn away from her" if separated parents are allowed to enter into a joint custody agreement. It can
hardly be said that a child is being "torn away" from the mother, if the mother sees the wisdom and benefit of sharing custody
of the child with the father. The voluntary nature of the agreement negates any "deep sorrow" or sense of deprivation that the
mother may experience on account of her separation from the child.
Consequently, if separated parents mutually stipulate to uphold some form of joint authority
over their children of tender age, it cannot in any way be regarded as illegal or contrary to public policy.
Joint parental authority and custody is the norm and should be viewed as the more desirable custody
arrangement. It encourages continuing contact with and involvement of both parents in the lives of their
children. It can only redound to the minor's greater well-being and should thus be favored.
To declare that a joint custody agreement over minors of tender age contravenes Philippine laws
will only discourage separating couples from sharing parental duties and responsibilities. It will render
shared parenthood illegal and unduly promote paternal alienation. It also presumes that separated parents
cannot cooperate and compromise for the welfare of their children. It constitutes undue interference in the
parents' intrinsic right to direct their relations with their child. STHAaD
A joint custody agreement can of course never be regarded as permanent and unbending. The
situations of the mother or the father and even of the child can change and render performance of such
agreement no longer in the latter's best interest. If the parents disagree on what they think is best for the
child, recourse to the Court may be inevitable. But I suggest that the parent who wants the joint custody
agreement changed or set aside bears the burden of showing to the court the new situations of the parties
and how such arrangement have become unfavorable or detrimental to the child under the circumstances.
This is a consequence of the presumption that contracts that are valid remain valid unless shown otherwise.
Here, the agreement between petitioner Herald and his estranged wife providing for joint
custody of their then six-year-old child is a valid exercise of parental discretion and authority. It is
independent of the foreign divorce decree and may be enforced or repudiated in this jurisdiction, since its
object is the custody of a Filipino-American minor residing in the Philippines. Although Herald's complaint
before the trial court appears to be one for specific performance, it is, at heart, an action for custody and
enforcement of parental rights. Being so, the Regional Trial Courts have exclusive original jurisdiction over
the action.
I concur in the decision subject to my above reservations.
EN BANC
[G.R. No. 70890. September 18, 1992.]
CRESENCIO LIBI * and AMELIA YAP LIBI, petitioners, vs. HON.
INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY
GOTIONG, respondents.
Alex Y. Tan for petitioners.
Mario D. Ortiz and Danilo V. Ortiz for private respondents.
SYLLABUS
1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES COMMITTED BY
THEIR MINOR CHILDREN; RULE. The parents are and should be held primarily liable for the civil liability arising from criminal
offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is
proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is
premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their
children 9 years of age or under, or over 9 but under 15 years of age who acted without discernment; and, with regard to their
children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of age, such
primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said Article 2180, the enforcement of such
liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the Child
and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity,
upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by
a relative or family friend of the youthful offender. However, under the Family Code, this civil liability is now, without such
alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender.
For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180
and 2182 of the Civil Code, as so modified.
DECISION
REGALADO, J p:
One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is
provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those whose
lives they have touched. While we cannot expect to award complete assuagement to their families through seemingly prosaic
legal verbiage, this disposition should at least terminate the acrimony and rancor of an extended judicial contest resulting from
the unfortunate occurrence.
In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are
now before us seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.
69060 with the following decretal portion:
"WHEREFORE, the decision of the lower court dismissing plaintiff's
complaint is hereby reversed; and instead, judgment is hereby
rendered sentencing defendants, jointly and solidarily, to pay to
plaintiffs the following amounts: prcd
1. Moral damages, P30,000.000;
2. Exemplary damages, P10,000.00;
3. Attorney's fees, P20,000.00, and costs.
However, denial of defendants-appellees' counterclaims is
affirmed." 1
Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie Ann
Gotiong who, at the time of the deplorable incident which took place and from which she died on January 14, 1979, was an 18-
year old first year commerce student of the University of San Carlos, Cebu City; while petitioners are the parents of Wendell
Libi, then a minor between 18 and 19 years of age living with his aforesaid parents, and who also died in the same event on the
same date.
For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978
when Julie Ann broke up her relationship with Wendell after she supposedly found him to be sadistic and irresponsible. During
the first and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation but the latter
persisted in her refusal, prompting the former to resort to threats against her. In order to avoid him, Julie Ann stayed in the
house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmea Streets, Cebu City, from January 7
to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a Smith
and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the crime inside
the residence of private respondents at the corner of General Maxilom and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents, who
are the contending parties herein, posited their respective theories drawn from their interpretation of circumstantial evidence,
available reports, documents and evidence of physical facts.
Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her
with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, petitioners,
puzzled and likewise distressed over the death of their son, rejected the imputation and contended that an unknown third
party, whom Wendell may have displeased or antagonized by reason of his work as a narcotics informer of the Constabulary
Anti-Narcotics Unit (CANU), must have caused Wendell's death and then shot Julie Ann to eliminate any witness and thereby
avoid identification. LibLex
As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First Instance of Cebu
against the parents of Wendell to recover damages arising from the latter's vicarious liability under Article 2180 of the Civil
Code. After trial, the court below rendered judgment on October 20, 1980 as follows:
"WHEREFORE, premises duly considered, judgment is hereby
rendered dismissing plaintiffs' complaint for insufficiency of the
evidence. Defendants' counterclaim is likewise denied for lack of
sufficient merit." 2
On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants was
set aside and another judgment was rendered against defendants-appellees who, as petitioners in the present appeal by
certiorari, now submit for resolution the following issues in this case:
1. Whether or not respondent court correctly reversed the trial court in accordance with
established decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent
court to make petitioners liable for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings and
opinions on some postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his own
suicidal act. However, undue emphasis was placed by the lower court on the absence of gunpowder or tattooing around the
wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only circumstance to be taken
into account in the determination of whether it was suicide or not.
It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the
entrance wound. However, as pointed out by private respondents, the body of deceased Wendell Libi must have been washed
at the funeral parlor, considering the hasty interment thereof a little after eight (8) hours from the occurrence wherein he died.
Dr. Cerna himself could not categorically state that the body of Wendell Libi was left untouched at the funeral parlor before he
was able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin test on Wendell
Libi, hence possible evidence of gunpowder residue on Wendell's hands was forever lost when Wendell was hastily
buried. LexLib
More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after the
incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy table and in the stage of rigor mortis; and
that said body was not washed, but it was dried. 4 However, on redirect examination, he admitted that during the 8-hour
interval, he never saw the body nor did he see whether said body was wiped or washed in the area of the wound on the head
which he examined because the deceased was inside the morgue. 5 In fact, on cross-examination, he had earlier admitted that
as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are concerned, it is possible that
Wendell Libi shot himself. 6
He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no burning or
singeing of the hair or extensive laceration on the gunshot wound of entrance which are general characteristics of contact or
near-contact fire. On direct examination, Dr. Cerna nonetheless made these clarification:
"Q Is it not a fact that there are certain guns which are so made that there would be no
black residue or tattooing that could result from these guns because they are
what we call clean?
A Yes, sir. I know that there are what we call smokeless powder.
ATTY. ORTIZ:
Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you
said may not rule out the possibility that the gun was closer than 24 inches, is that
correct?
A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the
singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in your
own sketch, is it not a fact that the gun could have been fired by the person himself, the
victim himself, Wendell Libi, because it shows a point of entry a little above the right ear
and point of exit a little above that, to be very fair and on your oath?
A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned
and as far as the angle or the manner of fire is concerned, it could have been fired by the
victim." 7
As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which were the bullets
that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the
National Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance located at the right temple of
Wendell Libi. The necropsy report prepared by Dr. Cerna states:
xxx xxx xxx
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2
cm., edges inverted, oriented upward, located at the head, temporal region, right, 2.8 cms. behind
and 5.5 cms. above right external auditory meatus, directed slightly forward, upward and to the
left, involving skin and soft tissues, making a punch-in fracture on the temporal bone, right,
penetrating cranial cavity, lacerating extensively along its course the brain tissues, fracturing
parietal bone, left, and finally making anEXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted,
parietal region, left, 2.0 cms. behind and 12.9 cms. above left external auditory meatus. LLjur
xxx xxx xxx
"Evidence of contact or close-contact fire, such as burning around the gunshot wound of
entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or
bursting of the gunshot wound of entrance, or separation of the skin from the
underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus:
"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the
wound, the trajectory of the bullet and the exit of the wound, and measuring
yourself 24 inches, will you please indicate to the Honorable Court how would
it have been possible for Wendell Libi to kill himself? Will you please indicate
the 24 inches?
WITNESS:
A Actually, sir, the 24 inches is approximately one arm's length.
ATTY. SENINING:
I would like to make of record that the witness has demonstrated by
extending his right arm almost straight towards his head."11
Private respondents assail the fact that the trial court gave credence to the testimonies of defendants' witnesses Lydia Ang and
James Enrique Tan, the first being a resident of an apartment across the street from the Gotiongs and the second, a resident of
the house adjacent to the Gotiong residence, who declared having seen a "shadow" of a person at the gate of the Gotiong
house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the second
apartment; that from her window she can see directly the gate of the Gotiongs and, that there is a firewall between her
apartment and the gas station. 12 After seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans, she called
the police station but the telephone lines were busy. Later on, she talked with James Enrique Tan and told him that she saw a
man leap from the gate towards his rooftop. 13
However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied having talked
with anyone regarding what he saw. He explained that he lives in a duplex house with a garden in front of it; that his house is
next to Felipe Gotiong's house; and he further gave the following answers to these questions: prcd
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiong's in relation to your house?
WITNESS:
A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From Your living room window, is that correct?
WITNESS:
A Yes, but not very clear because the wall is high." 14
Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the reliability
and accuracy of the witnesses' observations, since the visual perceptions of both were obstructed by high walls in their
respective houses in relation to the house of herein private respondents. On the other hand, witness Manolo Alfonso,
testifying on rebuttal, attested without contradiction that he and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong
when they heard her scream; that when Manolo climbed the fence to see what was going on inside the Gotiong house, he
heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he went down from the
fence and drove to the police station to report the incident. 15 Manolo's direct and candid testimony establishes and explains
the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong house.
We have perforce to reject petitioners' effete and unsubstantiated pretension that it was another man who shot Wendell and
Julie Ann. It is significant that the Libi family did not even point to or present any suspect in the crime nor did they file any case
against any alleged "John Doe." Nor can we sustain the trial court's dubious theory that Wendell Libi did not die by his own
hand because of the overwhelming evidence testimonial, documentary and pictorial the confluence of which point to
Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of his persistent pleas for a
reconciliation. LibLex
Petitioners' defense that they had exercised the due diligence of a good father of a family, hence they should not be civilly
liable for the crime committed by their minor son, is not borne out by the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a safety
deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and Amelita's key
is always in her bag, all of which facts were known to Wendell. They have never seen their son Wendell taking or using the gun.
She admitted, however, that on that fateful night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot
but entertain serious doubts that petitioner spouses had really been exercising the diligence of a good father of a family by
safely locking the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to the safety deposit box
was negligently left lying around or he had free access to the bag of his mother where the other key was.
The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the
instruction and supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently supervising
the activities of their son, despite his minority and immaturity, so much so that it was only at the time of Wendell's death that
they allegedly discovered that he was a CANU agent and that Cresencio's gun was missing from the safety deposit box. Both
parents were sadly wanting in their duty and responsibility in monitoring and knowing the activities of their children who, for
all they know, may be engaged in dangerous work such as being drug informers, 17 or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back thereof, 18 holding
upright what clearly appears as a revolver and on how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this opinion,
respondent court waved aside the protestations of diligence on the part of petitioners and had this to say:
". . . It is still the duty of parents to know the activity of their children who may be engaged in
this dangerous activity involving the menace of drugs. Had the defendants-appellees been
diligent in supervising the activities of their son, Wendell, and in keeping said gun from his reach,
they could have prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are
liable under Article 2180 of the Civil Code which provides:
'The father, and in case of his death or incapacity, the mother, are responsible for the
damages caused by their minor children who live in their company.'
"Having been grossly negligent in preventing Wendell Libi from having access to said gun
which was allegedly kept in a safety deposit box, defendants-appellees
are subsidiarily liable for the natural consequence of the criminal act of said minor who
was living in their company. This vicarious liability of herein defendants-appellees has
been reiterated by the Supreme Court in many cases, prominent of which is the case of
Fuellas vs. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:
'The subsidiary liability of parents for damages caused by their minor children imposed
by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal
offenses.'
'The subsidiary liability of parent's arising from the criminal acts of their minor children
who acted with discernment is determined under the provisions of Article 2180, N.C.C. and under
Article 101 of the Revised Penal Code, because to hold that the former only covers obligations
which arise from quasi-delicts and not obligations which arise from criminal offenses, would result
in the absurdity that while for an act where mere negligence intervenes the father or mother may
standsubsidiarily liable for the damages caused by his or her son, no liability would attach if the
damage is caused with criminal intent.' (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold
of the key to the drawer where said gun was kept under lock without defendant-spouses ever
knowing that said gun had been missing from that safety box since 1978 when Wendell Libi had a
picture taken wherein he proudly displayed said gun and dedicated this picture to his sweetheart,
Julie Ann Gotiong; also since then, Wendell Libi was said to have kept said gun in his car, in keeping
up with his supposed role of a CANU agent . . ." llcd
xxx xxx xxx
"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court
was not correct in dismissing herein plaintiffs-appellants' complaint because as preponderantly
shown by evidence, defendants-appellees utterly failed to exercise all the diligence of a good father
of the family in preventing their minor son from committing this crime by means of the gun of
defendants-appellees which was freely accessible to Wendell Libi for they have not regularly
checked whether said gun was still under lock, but learned that it was missing from the safety
deposit box only after the crime had been committed." (Emphases ours.) 19
We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability based on what
appears from all indications was a crime committed by their minor son. We take this opportunity, however, to digress and
discuss its ratiocination therefor on jurisprudential dicta which we feel require clarification.
In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas vs. Cadano, et
al. 20 which supposedly holds that "(t)he subsidiary liability of parents for damages caused by their minor children imposed by
Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses," followed by an
extended quotation ostensibly from the same case explaining why under Article 2180 of the Civil Code and Article 101 of the
Revised Penal Code parents should assume subsidiary liability for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion hereunder. LLphil
Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability as
being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on the
matter which warrant comparative analyses. Our concern stems from our readings that if the liability of the parents for crimes
or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil liability on the
defense that they acted with the diligence of a good father of a family to prevent damages. On the other hand, if such liability
imputed to the parents is considered direct and primary, that diligence would constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the Civil
Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in case of his death of
incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that "(t) he responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to prevent damages."
We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not
subsidiary.Article 101 of the Revised Penal Code provides:
"ARTICLE 101. Rules regarding civil liability in certain cases.
xxx xxx xxx
 First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed by . . . a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those
having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part." (Emphases supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents for
crimes committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of a good father of a family.
That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding
provisions in both codes that the minor transgressor shall be answerable or shall respond with his own property only in the
absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil Code
states that "(i)f the minor causing damage has no parents or guardian, the minor . . . shall be answerable with his own property
in an action against him where a guardianad litem shall be appointed." For civil liability ex delicto of minors, an equivalent
provision is found in the third paragraph of Article 101 of the Revised Penal Code, to wit:
"Should there be no person having such . . . minor under his authority, legal guardianship
or control, or if such person be insolvent, said . . . minor shall respond with (his) own
property, excepting property exempt from execution, in accordance with civil law."
The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101 of
the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been the
subject of a number of cases adjudicated by this Court, viz.: Exconde vs. Capuno, et al., 22 Araneta vs. Arreglado, 23 Salen, et
al. vs. Balce, 24 Paleyan, etc., et al. vs. Bangkili, et al., 25 and Elcano, et al, vs. Hill, et al. 26 Parenthetically, the aforesaid cases
were basically on the issue of the civil liability of parents for crimes committed by their minor children over 9 but under 15
years of age, who acted with discernment, and also of minors 15 years of age or over, since these situations are not covered by
Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental civil liability should be resolved in
accordance with the provisions of Article 2180 of the Civil Code for the reasons well expressed in Salen and adopted in the
cases hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply only to quasi-delicts and not
to criminal offenses would result in the absurdity that in an act involving mere negligence the parents would be liable but not
where the damage is caused with criminal intent. In said cases, however, there are unfortunate variances resulting in a
regrettable inconsistency in the Court's determination of whether the liability of the parents, in cases involving either crimes or
quasi-delicts of their minor children, is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil
action arising from the crime the minor and his father were held jointly and severally liable for failure of the latter to prove the
diligence of a good father of a family. The same liability in solidum and, therefore, primary liability was imposed in a separate
civil action in Araneta on the parents and their 14-year old son who was found guilty of frustrated homicide, but on the
authority of Article 2194 of the Civil Code providing for solidary responsibility of two or more persons who are liable for a
quasi-delict.
However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was over
15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the
present case, as already explained, the petitioners herein were also held liable but supposedly in line with Fuellas which
purportedly declared the parents subsidiarily liable for the civil liability for serious physical injuries committed by their 13-year
old son. On the other hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for damages arising
from his conviction for homicide by the application of Article 2180 of the Civil Code since this is likewise not covered by Article
101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to "lack of intent,
coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary liability for
damages, since the son, "although married, was living with his father and getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity" the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons causing damages
under the compulsion of irresistible force or under the impulse of an uncontrollable fear; 27 innkeepers, tavern-keepers and
proprietors of establishments; 28 employers, teachers, persons and corporations engaged in industry; 29 and principals,
accomplices and accessories for the unpaid civil liability of their co-accused in the other classes. 30
Also, coming back to respondent court's reliance on Fuellas in its decision in the present case, it is not exactly accurate to say
thatFuellas provided for subsidiary liability of the parents therein. A careful scrutiny shows that what respondent court quoted
verbatim in its decision now on appeal in the present case, and which it attributed to Fuellas, was the syllabus on the law
report of said case which spoke of "subsidiary" liability. However, such categorization does not specifically appear in the text of
the decision in Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and the discussions in said cases
of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this Court concluded its decision in this
wise:
"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence
submitted therein by both parties, independent of the criminal case. And responsibility
for fault or negligence under Article 2176 upon which the present action was instituted,
is entirely separate and distinct from the civil liability arising from fault or negligence
under the Penal Code (Art. 2177), and having in mind the reasons behind the law as
heretofore stated, any discussion as to the minor's criminal responsibility is of no
moment."
Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for the
civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or who live
in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to
damages ex delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or
over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. 31
Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve
upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the
guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. 3 2 However,
under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of the parents and
those who exercise parental authority over the minor offender.33 For civil liability arising from quasi-delicts committed by
minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by
Wendell Libi, respondent court did not err in holding petitioners liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on the bases of the legal imperatives herein explained, we conjoin
in its findings that said petitioners failed to duly exercise the requisite diligentissimi patris familias to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby AFFIRMED,
with costs against petitioners.
SO ORDERED.
Narvasa, C .J ., Gutierrez, Jr., Cruz, Padilla, Bidin, Grio-Aquino, Medialdea, Romero, Nocon and Bellosillo, Jr., JJ ., concur.
Feliciano, J ., is on leave
THIRD DIVISION
[G.R. No. 85044. June 3, 1992.]
MACARIO TAMARGO, CELSO TAMARGO and AURELIA
TAMARGO, petitioners, vs. THE HON. COURT OF APPEALS; THE HON.
ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR
BUNDOC; and CLARA BUNDOC, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL ACTIONS; MOTION FOR RECONSIDERATION; CONSIDERED PRO FORMA WHERE NOTICE OF TIME AND
PLACE OF HEARING NOT CONTAINED THEREIN. It will be recalled that petitioners' motion (and supplemental motion) for
reconsideration filed before the trial court, not having complied with the requirements of Section 13, Rule 41, and Section 4,
Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not interrupt and suspend the reglementary
period to appeal: the trial court held that the motions, not having contained a notice of time and place of hearing, had become
useless pieces of paper which did not interrupt the reglementary period. As in fact repeatedly held by this Court, what is
mandatory is the service of the motion on the opposing counsel indicating the time and place of hearing.
2. ID.; SUPREME COURT; SUSPENSION OF APPLICATION OF TECHNICAL RULES EXERCISED IN CASE AT BAR. In view, however,
of the nature of the issue raised in the instant Petition, and in order that substantial justice may be served, the Court, invoking
its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having
been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner
in the trial court as having interrupted the reglementary period for appeal. (Gregorio v. Court of Appeals, 72 SCRA 120 [1978])
3. CIVIL LAW; TORTS; DOCTRINE OF "IMPUTED NEGLIGENCE" OR VICARIOUS LIABILITY, CONSTRUED. It is not disputed that
Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-delict
against him. (Article 2176 of the Civil Code) Upon the other hand, the law imposes civil liability upon the father and, in case of
his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them. (Article 2180 of
the Civil Code) This principle of parental liability is a species of what is frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by
himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus,
parental liability is made a natural or logical consequence of the duties and responsibilities of parents their parental
authority which includes the instructing, controlling and disciplining of the child.
4. ID.; ID.; ID.; BASIS. The civil liability imposed upon parents for the torts of their minor children living with them, may be
seen to be based upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an
unemancipated child living with its parents commits a tortious act, the parents were negligent in the performance of their legal
and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored
upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such
authority. (Cangco v. Manila Railroad Co., 36 Phil. 768 [1918])
5. ID.; ID.; ID.; ID.; PARENTAL DERELICTION, ONLY A PRESUMPTION. The parental dereliction is, of course, only presumed
and the presumption can be overturned under Article 2180 of the Civil Code by proof that the parents had exercised all the
diligence of a good father of a family to prevent the damage.
6. REMEDIAL LAW; CIVIL ACTIONS; PARTIES; PARENTS WHO HAD ACTUAL CUSTODY OF MINOR, INDISPENSABLE PARTIES TO
ACTION FOR DAMAGES BASED ON TORT. In the instant case, the shooting of Jennifer by Adelberto with an air rifle occurred
when parental authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would
thus follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensable parties to the
suit for damages.
7. CIVIL LAW; TORTS; DOCTRINE OF "IMPUTED NEGLIGENCE" OR VICARIOUS LIABILITY; EFFECT OF ADOPTION THEREON; CASE
AT BAR. We do not believe that parental authority is properly regarded as having been retroactively transferred to and
vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that
retroactive effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a
time when the adopting parents had no actual or physical custody over the adopted child. Retroactive effect may perhaps be
given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in
favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the
Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could
not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto)
would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis
underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the
adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time
the tort was committed.
8. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; DISMISSAL OF COMPLAINT WHERE INDISPENSABLE PARTIES ARE
ALREADY BEFORE THE COURT CONSTITUTES GRAVE ABUSE OF DISCRETION. Under Article 35 of the Child and Youth Welfare
Code, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the
issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial
period. In the instant case, the trial custody period either had not yet begun or had already been completed at the time of the
air rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the adopting parents.
Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit
for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable parties
being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction.
DECISION
FELICIANO, J p:
On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing injuries
which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Branch 20,
Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by Petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner
spouses Celso and Aurelia Tamargo, Jennifer's natural parents, against respondent spouses Victor and Clara Bundoc,
Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to this case for damages, a
criminal information for Homicide through Reckless Imprudence was filed [Criminal Case No. 1722-V] against Adelberto
Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that he had acted without
discernment.
Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the minor
Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This petition for
adoption was granted on 18 November 1982, that is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for
adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the
successful petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents, parental
authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto
indeed were not indispensable parties to the action.
Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on 14
December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration on 15
January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of
Court that notice of the motion shall be given to all parties concerned at least three (3) days before the hearing of said
motion; and that said notice shall state the time and place of hearing both motions were denied by the trial court in an
Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order dated 6 June 1988, the trial court
dismissed the notice of appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period ending
22 December 1987.
Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision dated
3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988. The Court of Appeals dismissed the petition, ruling that
petitioners had lost their right to appeal.
In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable
parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges
on the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal, may still file the instant
Petition; conversely, whether the Court may still take cognizance of the case even though petitioners' appeal had been filed
out of time; and (2) whether or not the effects of adoption, insofar as parental authority is concerned, may be given retroactive
effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child, for acts
committed by the latter when actual custody was yet lodged with the biological parents.
1. It will be recalled that petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not
having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were
considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court held that the
motions, not having contained a notice of time and place of hearing, had become useless pieces of paper which did not
interrupt the reglementary period. 1As in fact repeatedly held by this Court, what is mandatory is the service of the motion on
the opposing counsel indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the instant Petition, and in order that substantial justice may be served,
the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice
of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration
filed by petitioner in the trial court as having interrupted the reglementary period for appeal. As the Court held in Gregorio v.
Court of Appeals: 3
"Dismissal of appeal purely on technical grounds is frowned upon where the policy of
the courts is to encourage hearings of appeal on their merits. The rules of procedure
ought not be applied in a very rigid technical sense, rules of procedure are used only to
help secure not override, substantial justice. If a technical and rigid enforcement of the
rules is made, their aim would be defeated." 4
2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of
action on quasi-delict against him. As Article 2176 of the Civil Code provides:
"Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict . . . ."
Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any
damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:
"The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company. cdll
xxx xxx xxx
The responsibility treated of in this Article shall cease when the person herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage." (Emphasis supplied)
This principle of parental liability is a species of what is frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts
committed by himself, but also for torts committed by others with whom he has a certain relationship and
for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties
and responsibilities of parents their parental authority which includes the instructing, controlling and
disciplining of the child. 5 The basis for the doctrine of vicarious liability was explained by the Court
inCangco v. Manila Railroad Co. 6 in the following terms:
"With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect and our Legislature has so elected
to limit such liability to cases in which the person upon whom such an obligation is
imposed is morally culpable or, on the contrary, for reasons of public policy, to extend
that liability, without regard to the lack of moral culpability, so as to
include responsibility for the negligence of those persons whose acts or omissions are
imputable, by a legal fiction, to others who are in a position to exercise an absolute or
limited control over them. The legislature which adopted our Civil Code has elected
to limit extra-contractual liability with certain well-defined exceptions to cases in
which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in one's own acts, or
in having failed to exercise due care in the selection and control of one's agents or
servants, or in the control of persons who, by reasons of their status, occupy a position of
dependency with respect to the person made liable for their conduct." 7(Emphasis
supplied)
The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to
be based upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that
when an unemancipated child living with its parents commits a tortious act, the parents were negligent in
the performance of their legal and natural duty closely to supervise the child who is in their custody and
control. Parental liability is, in other words, anchored upon parental authority coupled with presumed
parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is,
of course, only presumed and the presumption can be overturned under Article 2180 of the Civil Code by
proof that the parents had exercised all the diligence of a good father of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occurred when parental authority was still lodged in
respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents who had
then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages.
The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption
court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the
filing the petition for adoption that is, before Adelberto had shot Jennifer with an air rifle. The Bundoc spouses contend that
they were therefore free of any parental responsibility for Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows: LLjur
"Article 36. Decree of Adoption. If, after considering the report of the Department of
Social Welfare or duly licensed child placement agency and the evidence submitted
before it, the court is satisfied that the petitioner is qualified to maintain, care for, and
educate the child, that the trial custody period has been completed, and that the best
interests of the child will be promoted by the adoption, a decree of adoption shall be
entered, which shall be effective as of the date the original petition was filed. The decree
 shall state the name by which the child is thenceforth to be known." (Emphasis parents are given actual custody of the child during such trial period. In the instant case, the trial custody
supplied). period either had not yet begun or had already been completed at the time of the air rifle shooting; in any
The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the case, actual custody of Adelberto was then with his natural parents, not the adopting parents. llcd
same Code: Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit
"Art. 39. Effect of Adoption. The adoption shall: for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable parties
xxx xxx xxx being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction.
(2) Dissolve the authority vested in the natural parents, except where the adopter is the WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the Court of
spouse of the surviving natural parent;" Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed
xxx xxx xxx before the trial court is hereby REINSTATED and this case is REMANDED to that court for further proceedings consistent with
(Emphasis supplied) this Decision. Costs against respondent Bundoc spouses. This Decision is immediately executory.
and urge that their parental authority must be deemed to have been dissolved as of the time the petition SO ORDERED.
for adoption was filed. Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur.
The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is
the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the
parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this rule:
"Article 58. Torts Parents and guardians are responsible for the damage caused by the
child under their parental authority in accordance with the Civil Code." (Emphasis
supplied).
Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child,
doer of the tortious act, shall have been in the actual custody of the parents sought to be held liable for the
ensuing damage:
"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." (Emphasis supplied)
We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the
adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive effect
may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when the
adopting parents had no actual or physical custody over the adopted child. Retroactive effect may perhaps be given to the
granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the
adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura
spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have
prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be
unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying
the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting
parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort
was committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows:
"Art. 35. Trial Custody. No Petition for adoption shall be finally granted unless and until the
adopting parents are given by the courts a supervised trial custody period of at least six months to
assess their adjustment and emotional readiness for the legal union.During the period of trial
custody, parental authority shall be vested in the adopting parents." (Emphasis supplied)
Under the above Article 35, parental authority is provisionally vested in the adopting parents during the
period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting
FIRST DIVISION
[G.R. No. L-24101. September 30, 1970.]
MARIA TERESA Y. CUADRA, minor represented by her father ULISES
P. CUADRA, ET AL., plaintiffs-appellees, vs.ALFONSO
MONFORT, defendant-appellant.
Rodolfo J. Herman for plaintiffs-appellees.
Luis G. Torres & Abraham E. Tionko for defendant appellant.
DECISION
MAKALINTAL, J p:
This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably to the
plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are not in issue.
Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School in
Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in the
school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object commonly worn
by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra
girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and the object hit her right
eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next day, July 10, the eye
became swollen and it was then that the girl related the incident to her parents, who thereupon took her to a doctor for
treatment. She underwent surgical operation twice, first on July 20 and again on August 4, 1962, and stayed in the hospital for
a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the medical efforts, however,
Maria Teresa Cuadra completely lost the sight of her right eye.
In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria Teresa
Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages; and
P2,000.00 as attorney's fees, plus the costs of the suit.
The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to another
under the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176 and 2180
thereof, which read:
"ART. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter."
"ART. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible
for the damages caused by the minor children who live in their company.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage."
The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the omission,
there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom
another is responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated therein,
such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious, although primary,
liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the causative act or
omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and logical inference that
may be drawn from the last paragraph of Article 2180, which states "that the responsibility treated of in this Article shall cease
when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent
damage."
Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. But
what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act or
omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously there can
be no meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good father of the
family to prevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine
whether or not by the exercise of such diligence the damage could have been prevented.
In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by the
observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such
damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she
was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused
the injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful,
would have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed
any trait in the child's character which would reflect unfavorably on her upbringing and for which the blame could be
attributed to her parents.
The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is at
all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral
compulsion of good conscience.
The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs.
Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur.
Concepcion, C.J., is on leave.
Fernando, J., did not take part.
Barredo, J., dissents in a separate opinion.
FIRST DIVISION
[G.R. No. L-33722. July 29, 1988.]
FEDERICO YLARDE and ADELAIDA DORONIO, petitioners, vs. EDGARDO
AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.
SYLLABUS
1. CIVIL LAW; QUASI-DELICT; ART. 2180, CIVIL CODE; ONLY TEACHERS OF ACADEMIC SCHOOLS SHOULD BE ANSWERABLE FOR
TORTS COMMITTED BY THEIR STUDENTS; RULING IN AMADORA VS. COURT OF APPEALS APPLIED IN THE CASE AT BAR. As
regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an
academic school and not a school of arts and trades. This is in line with Our ruling in Amadora vs. Court of Appeals,wherein this
Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an
academic school who should be answerable for torts committed by their students. This Court went on to say that in a school of
arts and trades, it is only the head of the school who can be held liable. Hence, applying the said doctrine to this case, We rule
that private respondent Soriano, as principal, cannot be held liable for the reason that the school he heads is an academic
school and not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private respondent
Soriano did not give any instruction regarding the digging. From the foregoing, it can be easily seen that private respondent
Aquino can be held liable under Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his
supervision over them and his failure to take the necessary precautions to prevent any injury on their persons.
2. ID.; ID.; ART. 2176, CIVIL CODE; THE ACTS AND OMISSIONS OF RESPONDENT AMOUNTED TO FAULT AND GROSS NEGLIGENCE
WHICH HAVE DIRECT CAUSAL RELATION TO THE DEATH OF THE VICTIM. However, as earlier pointed out, petitioners base
the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that provided for in
Article 2180. With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private
respondent Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil Ylarde? Our
answer is in the affirmative. He is liable for damages. From a review of the record of this case, it is very clear that private
respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself of services of adult manual
laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he
knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging,
knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to
the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at
the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children
close to the excavation, an obviously attractive nuisance.
3. ID.; ID.; ID.; ID.; CASE AT BAR. The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site
has a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural for the children to play
around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their playful
and adventurous instincts and not knowing the risk they were facing, three of them jumped into the hole while the other one
jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence
that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything
that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Needless to say, the
child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which exposed the
lives of all the pupils concerned to real danger.
4. ID.; ID.; ID.; DEGREE OF CARE REQUIRED OF MINOR CHILDREN; CASE AT BAR. In ruling that the child Ylarde was
imprudent, it is evident that the lower court did not consider his age and maturity. This should not be the case. The degree of
care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be
held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of
his age and experience. The standard of conduct to which a child must conform for his own protection is that degree of care
ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar
circumstances. Bearing this in mind, We cannot charge the child Ylarde with reckless imprudence.
5. ID.; ID.; ID.; DILIGENCE OF A VERY CAUTIOUS PERSON AS A DEFENSE TO ART. 2176, CIVIL CODE; ABSENT IN THE CASE AT BAR.
The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without
cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site, and more so,
leaving them there all by themselves, may result in an accident. An ordinarily careful human being would not assume that a
simple warning "not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete block adjacent to
an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made
sure that the children are protected from all harm in his company.
6. ID.; ID.; ID.; PAYMENT FOR DAMAGES ORDERED BY THE COURT. We close by categorically stating that a truly careful and
cautious person would have acted in all contrast to the way private respondent Aquino did. Were it not for his gross
negligence, the unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a grown-
man of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard, Ylarde's parents suffered great
anguish all these years. In view of the foregoing, the petition is hereby granted and the questioned judgment of the
respondent court is reversed and set aside and another judgment is hereby rendered ordering private respondent Edgardo
Aquino to pay petitioners the following: (1) Indemnity for the death of Child Ylarde P30,000.00; (2) Exemplary damages
10,000.00; (3) Moral damages 20,000.00.
DECISION
GANCAYCO, J p:
In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No. 36390-R
entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which originated from the Court of First Instance of
Pangasinan, We are again called upon to determine the responsibility of the principals and teachers towards their students or
pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational institution
located in Tayug, Pangasinan. Private respondent Edgardo Aquino was a teacher therein. At that time, the school was littered
with several concrete blocks which were remnants of the old school shop that was destroyed in World War II. Realizing that
the huge stones were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez stated burying them
one by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to eleven,
after class dismissal on October 7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton concrete block
in order to make a hole wherein the stone can be buried. The work was left unfinished. The following day, also after classes,
private respondent Aquino called four of the original eighteen pupils to continue the digging. These four pupils Reynaldo
Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters
deep. At this point, private respondent Aquino alone continued digging while the pupils remained inside the pit throwing out
the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four pupils got out
of the hole. Then, said private respondent left the children to level the loose soil around the open hole while he went to see
Banez who was about thirty meters away. Private respondent wanted to borrow from Banez the key to the school workroom
where he could get some rope. Before leaving, private respondent Aquino allegedly told the children "not to touch the stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into
the pit. Then, without any warning at all, the remaining Abaga jumped on top of the concrete block causing it to slide down
towards the opening. Alonso and Alcantara were able to scramble out of the excavation on time but unfortunately for Ylarde,
the concrete block caught him before he could get out, pinning him to the wall in a standing position. As a result thereof,
Ylarde sustained the following injuries:
"1. Contusion with hematoma, left inguinal region and suprapublic region.
2. Contusion with occhymosis, entire acrotal region. prLL
3. Lacerated wound, left lateral aspect of penile skin with phimosis.
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters.
6. Fracture, simple, symphesis pubis.
7. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated
from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO
Physician on Duty." 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents Aquino and Soriano. The
lower court dismissed the complaint on the following grounds: (1) that the digging done by the pupils is in line with their
course called Work Education; (2) that Aquino exercised the utmost diligence of a very cautious person; and (3) that the
demise of Ylarde was due to his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code for his alleged negligence that
caused their son's death while the complaint against respondent Soriano as the head of school is founded on Article 2180 of
the same Code.
Article 2176 of the Civil Code provides:
"Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions
of this Chapter."
On the other hand, the applicable provision of Article 2180 states:
"Art. 2180. . . .
xxx xxx xxx
"Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as they remain in their custody." 3
The issue to be resolved is whether or not under the cited provisions, both private respondents can be held liable for
damages. llcd
As regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an
academic school and not a school of arts and trades. This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein
this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of
an academic school who should be answerable for torts committed by their students. This Court went on to say that in a school
of arts and trades, it is only the head of the school who can be held liable. In the same case, We explained:
"After an exhaustive examination of the problem, the Court has come to the conclusion that the
provision in question should apply toall schools, academic as well as non-academic. Where the
school is academic rather than technical or vocational in nature, responsibility for the tort
committed by the student will attach to the teacher in charge of such student, following the first
part of the provision. This is the general rule. In the case of establishments of arts and trades, it is
the head thereof, and only he, who shall be held liable as an exception to the general rule. In other
words, teachers in general shall be liable for the acts of their students except where the school is
technical in nature, in which case it is the head thereof who shall be answerable. Following the
canon ofreddendo singula sinquilis, 'teachers' should apply to the words 'pupils and students' and
'heads of establishments of arts and trades' to the word 'apprentices.'"
Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal, cannot be held liable for
the reason that the school he heads is an academic school and not a school of arts and trades. Besides, as clearly admitted by
private respondent Aquino, private respondent Soriano did not give any instruction regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held liable under Article 2180 of the Civil Code
as the teacher-in-charge of the children for being negligent in his supervision over them and his failure to take the necessary
precautions to prevent any injury on their persons. However, as earlier pointed out, petitioners base the alleged liability of
private respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private respondent
Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil Ylarde? Our answer is in the
affirmative. He is liable for damages.
From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence
when he: (1) failed to avail himself of services of adult manual laborers and instead utilized his pupils aged ten to eleven to
make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to
remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily
pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the
excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be
able to check on the children's safety; and (5) left the children close to the excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to
the death of the child Ylarde. Left by themselves, it was but natural for the children to play around. Tired from the strenuous
digging, they just had to amuse themselves with whatever they found. Driven by their playful and adventurous instincts and
not knowing the risk they were facing, three of them jumped into the hole while the other one jumped on the stone. Since the
stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the
hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino. Needless to say, the child Ylarde would not have died were
it not for the unsafe situation created by private respondent Aquino which exposed the lives of all the pupils concerned to real
danger. LexLib
We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were
caused by his own reckless imprudence. It should be remembered that he was only ten years old at the time of the incident. As
such, he is expected to be playful and daring. His actuations were natural to a boy his age. Going back to the facts, it was not
only him but the three of them who jumped into the hole while the remaining boy jumped on the block. From this, it is clear
that he only did what any other ten-year old child would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity. This
should not be the case. The degree of care required to be exercised must vary with the capacity of the person endangered to
care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged
according to the average conduct of persons of his age and experience. 5 The standard of conduct to which a child must
conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion,
knowledge and experience under the same or similar circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde
with reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single glance at the
picture showing the excavation and the huge concrete block 7 would reveal a dangerous site requiring the attendance of
strong, mature laborers and not ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise
when private respondent Aquino himself admitted that there were no instructions from the principal requiring what the pupils
were told to do. Nor was there any showing that it was included in the lesson plan for their Work Education. Even the Court of
Appeals made mention of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the
concrete remnants of the old school shop. 8 Furthermore, the excavation should not be placed in the category of school
gardening, planting trees, and the like as these undertakings do not expose the children to any risk that could result in death or
physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without
cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site, and more so,
leaving them there all by themselves, may result in an accident. An ordinarily careful human being would not assume that a
simple warning "not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete block adjacent to
an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made
sure that the children are protected from all harm in his company.
We close by categorically stating that a truly careful and cautious person would have acted in all contrast to the way private
respondent Aquino did. Were it not for his gross negligence, the unfortunate incident would not have occurred and the child
 Ylarde would probably be alive today, a grown-man of thirty-five. Due to his failure to take the necessary precautions to avoid
the hazard, Ylarde's parents suffered great anguish all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned judgment of the respondent court
is REVERSED and SET ASIDE and another judgment is hereby rendered ordering private respondent Edgardo Aquino to pay
petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

FIRST DIVISION
[G.R. No. 143363. February 6, 2002.]
ST. MARY'S ACADEMY, petitioner, vs. WILLIAM CARPITANOS and
LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES
DANIEL, SR., and VIVENCIO VILLANUEVA, respondents.
Padilla Law Office for petitioner.
Peter Y. Co for respondents Daniel and Villanueva.
Feliciano M. Maraon for respondent Carpitanos.
SYNOPSIS
Sherwin Carpitanos, son of respondents Carpitanos, died in an accident caused by the detachment of the steering wheel guide
of the jeep owned by respondent Villanueva. The vehicle was then driven by James Daniel II, a minor. The incident occurred
during an enrollment drive conducted by petitioner academy where Sherwin was a student. Sherwin's parents filed an action
for damages against petitioner and the other respondents. The trial court ruled in favor of Sherwin's parents ordering
petitioner to pay civil indemnity for the loss of life of Sherwin, actual and moral damages, and attorney's fees under Articles
218 and 219 of the Family Code, and declared respondents Daniel subsidiarily liable. Respondent Villanueva was absolved from
any liability.
Under Articles 218 and 219 of the Family Code, for the school to be principally and solidarily liable for the acts of its students,
the latter's negligence must be the proximate cause of the injury. In this case, there was no evidence that petitioner allowed
the minor to drive the jeep and that the proximate cause of the accident was a mechanical defect in the vehicle, thus,
petitioner may not be held liable for the death of Sherwin. However, as the registered owner of the vehicle, Villanueva was
held primarily liable for the death of Sherwin.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; SPECIAL PARENTAL AUTHORITY OVER A MINOR CHILD. Under Article 218 of the Family Code,
the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1)
the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care. This special parental
authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or
institution. Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students
outside the school premises whenever authorized by the school or its teachers.
2. ID.; ID.; ID.; PRINCIPAL AND SOLIDARY LIABILITY OF PERSONS EXERCISING PARENTAL AUTHORITY. Under Article 219 of the
Family Code, if the person under custody is a minor, 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.
3. ID.; ID.; ID.; ID.; REQUISITE. However, for petitioner to be liable, there must be a finding that the act or omission
considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to
the accident.
4. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. In this case, the respondents failed to show that the negligence of petitioner was the
proximate cause of the death of the victim. Respondents Daniel spouses and Villanueva admitted that the immediate cause of
the accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering
wheel guide of the jeep. Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the
jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had
possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the
time of the accident. Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the
jeep owned by respondent Villanueva was an event over which petitioner St. Mary's Academy had no control, and which was
the proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident.
Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded
by the trial court and affirmed by the Court of Appeals. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant's wrongful act or omission. In this case, the proximate cause of the
accident was not attributable to petitioner. For the reason that petitioner was not directly liable for the accident, the decision
of the Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the
grant of attorney's fees as part of damages is the exception rather than the rule. The power of the court to award attorney's
fees under Article 2208 of the Civil Code demands factual, legal and equitable justification. Thus, the grant of attorney's fees
against the petitioner is likewise deleted. aESICD
5. ID.; DAMAGES; REGISTERED OWNER OF VEHICLE PRIMARILY RESPONSIBLE FOR INJURIES CAUSED TO THE PUBLIC OR TO
THIRD PERSONS WHILE VEHICLE WAS BEING DRIVEN ON THE HIGHWAYS OR STREETS. We have held that the registered
owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third persons for
injuries caused the latter while the vehicle was being driven on the highways or streets. Hence, with the overwhelming
evidence presented by petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of
the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible
for damages for the death of Sherwin Carpitanos.
DECISION
PARDO, J p:
The Case
The case is an appeal via certiorari from the decision 1 of the Court of Appeals as well as the resolution denying
reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student who had
joined a campaign to visit the public schools in Dipolog City to solicit enrollment.
The Facts
The facts, as found by the Court of Appeals, are as follows:
"Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos
and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II and his parents, James
Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Mary's Academy before
the Regional Trial Court of Dipolog City.
"On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the
dispositive portion of which reads as follows:
"'WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:
1. Defendant St. Mary's Academy of Dipolog City, is hereby ordered to pay plaintiffs
William Carpitanos and Luisa Carpitanos, the following sums of money:
a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of
Sherwin S. Carpitanos;
b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by
plaintiffs for burial and related expenses;
c. TEN THOUSAND PESOS (P10,000.00) for attorney's fees;
d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and
to pay costs.
2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are
hereby ordered to pay herein plaintiffs the amount of damages above-stated
in the event of insolvency of principal obligor St. Mary's Academy of Dipolog
City;
3. Defendant James Daniel II, being a minor at the time of the commission of the tort
and who was under special parental authority of defendant St. Mary's
Academy, is ABSOLVED from paying the above-stated damages, same being
 adjudged against defendants St. Mary's Academy, and subsidiarily, against his
parents;
4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim
not being in order as earlier discussed in this decision, is hereby DISMISSED.
IT IS SO ORDERED."' (Decision, pp. 32-33; Records, pp. 205-206)."
"From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Mary's
Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet of
the enrollment campaign was the visitation of schools from where prospective enrollees were
studying. As a student of St. Mary's Academy, Sherwin Carpitanos was part of the campaigning
group. Accordingly, on the fateful day, Sherwin, along with other high school students were riding in
a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary
School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a
student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result
the jeep turned turtle.
"Sherwin Carpitanos died as a result of the injuries he sustained from the accident." 2
In due time, petitioner St. Mary's Academy appealed the decision to the Court of Appeals. 3
On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but otherwise
affirming the decision a quo, in toto. 4
On February 29, 2000, petitioner St. Mary's Academy filed a motion for reconsideration of the decision. However, on May 22,
2000, the Court of Appeals denied the motion. 5
Hence, this appeal. 6
The Issues
1) Whether the Court of Appeals erred in holding the petitioner liable for damages for
the death of Sherwin Carpitanos.
2) Whether the Court of Appeals erred in affirming the award of moral damages against
the petitioner.
The Court's Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Mary's Academy liable for the death of Sherwin Carpitanos under Articles 218 7 and
219 8 of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher
accompany the minor students in the jeep.
Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their
supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution
engaged in child care. This special parental authority and responsibility applies to all authorized activities, whether inside or
outside the premises of the school, entity or institution. Thus, such authority and responsibility applies to field trips, excursions
and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers. 9
Under Article 219 of the Family Code, if the person under custody is a minor, 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. 10
However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the
proximate cause of the injury caused because the negligence, must have a causal connection to the accident. 11
In order that there may be a recovery for an injury, however, it must be shown that the injury for
which recovery is sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of events, unbroken
by intervening efficient causes. In other words, the negligence must be the proximate cause of the
injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of. And the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred. 12
In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the
victim.
Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of
petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep.
In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits, establishing
that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the cause of the accident
was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva. Respondents,
including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of the
traffic investigator who stated that the cause of the accident was the detachment of the steering wheel guide that caused the
jeep to turn turtle.
Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the negligence of
the school authorities, or the reckless driving of James Daniel II. Hence, the respondents reliance on Article 219 of the Family
Code that those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for
damages caused by acts or omissions of the unemancipated minor was unfounded.
Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent
Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and control of
the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the
steering wheel guide of the jeep, must be pinned on the minor's parents primarily. The negligence of petitioner St. Mary's
Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened the negligence
of the minor's parents or the detachment of the steering wheel guide of the jeep.
"The proximate cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred." 13
Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by
respondent Villanueva was an event over which petitioner St. Mary's Academy had no control, and which was the proximate
cause of the accident, petitioner may not be held liable for the death resulting from such accident.
Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded
by the trial court and affirmed by the Court of Appeals.
Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendant's wrongful act or omission. 14 In this case, the proximate cause of the accident was not attributable to petitioner.
For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering petitioner
to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorney's fees as part of damages
is the exception rather than the rule. 15 The power of the court to award attorney's fees under Article 2208 of the Civil Code
demands factual, legal and equitable justification. 16 Thus, the grant of attorney's fees against the petitioner is likewise
deleted.
Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never denied and
in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public service, would
primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on the
highways or streets."17 Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses
that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the
registered owner of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals 18 and that of the trial court. 19 The
Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner St. Mary's
Academy, Dipolog City.DaTHAc
No costs.
SO ORDERED.
Davide, Jr., C.J., Kapunan and Ynares-Santiago, JJ., concur.
Puno, J., in the result.
SECOND DIVISION
[G.R. No. 82465. February 25, 1991.]
ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO
NANTES AND ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE
CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA
CADIZ, petitioners, vs. THE HONORABLE COURT OF APPEALS,
ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA
CADIZ,respondents.
Jose C. Flores, Jr. for petitioners.
Jovito E. Talabong for private respondents.
DECISION
PARAS, J p:
This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:
WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1)
Exemplary damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to
the actual damages of P30,000.00, moral damages of P20,000.00 and attorney's fees in the amount
of P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St. Francis High School,
represented by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are
hereby held jointly and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito
Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral
damages, exemplary damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and
Nida Aragones are hereby absolved from liability, and the case against them, together with their
respective counterclaims, is hereby ordered dismissed.
"SO ORDERED." (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School, wanted to
join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents
spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed
him to bring food to the teachers for the picnic, with the directive that he should go back home after doing so. However,
because of persuasion of the teachers, Ferdinand went on with them to the beach. LibLex
During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was apparently
drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who
drowned. His body was recovered but efforts to resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya,
Quezon and later to the Mt. Carmel General Hospital where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch LVIII of
Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin
Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria
Cadiz, for Damages which respondents allegedly incurred from the death of their 13-year old son, Ferdinand Castillo.
Contending that the death of their son was due to the failure of the petitioners to exercise the proper diligence of a good
father of the family in preventing their son's drowning, respondents prayed of actual, moral and exemplary damages,
attorney's fees and expenses for litigation.
The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones, Jaro and
Cadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as
moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo reasoned:
"Taking into consideration the evidence presented, this Court believes that the defendant teachers
namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had
failed to exercise the diligence required of them by law under the circumstances to guard against
the harm they had foreseen." (pp, 29-30, Rollo)
"xxx xxx xxx
"While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the
drowning incident had already occurred, such fact does not and cannot excuse them from their
liability. In fact, it could be said that by coming late, they were remiss in their duty to safeguard the
students." (p. 30, Rollo)
"The students, young as they were then (12 to 13 years old), were easily attracted to the sea
without aforethought of the dangers it offers. Yet, the precautions and reminders allegedly
performed by the defendants-teachers definitely fell short of the standard required by law under
the circumstances. While the defendants-teachers admitted that some parts of the sea where the
picnic was held are deep, the supposed lifeguards of the children did not even actually go to the
water to test the depth of the particular area where the children would swim. And indeed the fears
of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons
during the picnic got drowned at the same time. Had the defendant teachers made an actual and
physical observation of the water before they allowed the students to swim, they could have found
out that the area where the children were swimming was indeed dangerous. And not only that, the
male teachers who according to the female teachers were there to supervise the children to ensure
their safety were not even at the area where the children were swimming. They were somewhere
and as testified to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo)
On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora Cadorna.
Said the court a quo:
"As shown and adverted to above, this Court cannot find sufficient evidence showing
that the picnic was a school sanctioned one. Similarly, no evidence has been shown to
hold defendants Benjamin Illumin and Aurora Cadorna responsible for the death of
Ferdinand Castillo together with the other defendant teachers. It has been sufficiently
shown that Benjamin Illumin had himself not consented to the picnic and in fact he did
not join it. On the other hand, defendant Aurora Cadorna had then her own class to
supervise and in fact she was not amongst those allegedly invited by defendant Connie
Arquio to supervise class I-C to which Ferdinand Castillo belongs." (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors
committed by the trial court:
"1. The lower court erred in not declaring the defendant St. Francis High School and its
administrator/principal Benjamin Illumin as equally liable not only for its approved co-
curricular activities but also for those which they unreasonably failed to exercise control
and supervision like the holding of picnic in the dangerous water of Talaan Beach,
Sariaya, Quezon.
"2. The lower court erred in not declaring the St. Francis High School and principal
Benjamin Illumin as jointly and solidarily liable with their co-defendants-teachers Rosario
Lacandula, et al., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach,
Sariaya, Quezon, last March 20, 1982.
 "3. The lower court erred in not declaring higher amount for actual and moral damages
for the untimely and tragic death of Ferdinand Castillo in favor of plaintiffs-appellants
against all the defendants." (pp. 56-57, Rollo)
The Court of Appeals ruled:
"We find plaintiffs-appellants' submission well-taken.
"Even were We to find that the picnic in question was not a school sponsored activity,
nonetheless it cannot be gainsaid that the same was held under the supervision of the
teachers employed by the said school, particularly the teacher in charge of Class I-C to
whom the victim belonged, and those whom she invited to help her in supervising the
class during the picnic. Considering that the court a quo found negligence on the part of
the six defendants-teachers who, as such, were charged with the supervision of the
children during the picnic, the St. Francis High School and the school principal, Benjamin
Illumin, are liable under Article 2176 taken together with the 1st, 4th and 5th paragraphs
of Article 2180 of the Civil Code. They cannot escape liability on the mere excuse that
the picnic was not an 'extra-curricular activity of the St. Francis High School.' We find
from the evidence that, as claimed by plaintiffs-appellants, the school principal had
knowledge of the picnic even from its planning stage and had even been invited to
attend the affair; and yet he did not express any prohibition against undertaking the
picnic, nor did he prescribe any precautionary measures to be adopted during the picnic.
At the least, We must find that the school and the responsible school officials,
particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic.
"Under Article 2180, supra, the defendant school and defendant school principal must
be found jointly and severally liable with the defendants-teachers for the damages
incurred by the plaintiffs as a result of the death of their son. It is the rule that in cases
where the above-cited provisions find application, the negligence of the employees in
causing the injury or damage gives rise to a presumption of negligence on the part of the
owner and/or manager of the establishment (in the present case, St. Francis High School
and its principal); and while this presumption is not conclusive, it may be overthrown
only by clear and convincing proof that the owner and/or manager exercised the care
and diligence of a good father of a family in the selection and/or supervision of the
employee or employees causing the injury or damage (in this case, the defendants-
teachers). The record does not disclose such evidence as would serve to overcome the
aforesaid presumption and absolve the St. Francis High School and its principal from
liability under the above-cited provisions.
"As to the third assigned error interposed by plaintiffs-appellants, while We cannot but
commiserate with the plaintiffs for the tragedy that befell them in the untimely death of
their son Ferdinand Castillo and understand their suffering as parents, especially the
victim's mother who, according to appellants, suffered a nervous breakdown as a result
of the tragedy, We find that the amounts fixed by the court a quo as actual damages and
moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those
which are sustained by the evidence and the law.
"However, We believe that exemplary or corrective damages in the amount of
P20,000.00 may and should be, as it is hereby, imposed in the present case by way of
example of correction for the public good, pursuant to Article 2229 of the Civil Code."
(pp. 57-59, Rollo).
On the other hand, petitioners-teachers assigned the following errors committed by the trial court:
1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida
Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointly and severally liable
for damages such finding not being supported by facts and evidence.
"2. ". . . in dismissing the counterclaim interposed by the defendants." (p. 59, Rollo)
On this score, respondent Court ruled:
"The main thrust of defendants-appellants' appeal is that plaintiffs, the parents of the victim
Ferdinand Castillo, were not able to prove by their evidence that they did not give their son consent
to join the picnic in question. However, We agree with the trial court in its finding that whether or
not the victim's parents had given such permission to their son was immaterial to the determination
of the existence of liability on the part of the defendants for the damage incurred by the plaintiffs-
appellants as a result of the death of their son. What is material to such a determination is whether
or not there was negligence on the part of defendants vis-a-vis the supervision of the victim's group
during the picnic; and, as correctly found by the trial court, an affirmative reply to this question has
been satisfactorily established by the evidence, as already pointed out.
"However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro
and Nida Aragones, are concerned. As to them, the trial court found:
"While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived
at the picnic site, the drowning incident had already occurred, such fact does not and
cannot excuse them from their liability. In fact, it could be said that by coming late, they
were remiss in their duty to safeguard the students.
The evidence shows that these two defendants had satisfactorily explained why they were late in
going to the picnic site, namely, that they had to attend to the entrance examination being
conducted by the school which is part of their duty as teachers thereof. Since they were not at the
picnic site during the occurrence in question, it cannot be said that they had any participation in the
negligence attributable to the other defendants-teachers who failed to exercise diligence in the
supervision of the children during the picnic and which failure resulted in the drowning of plaintiffs'
son. Thus, We may not attribute any act or omission to the two teachers, Yoly Jaro and Nida
Aragones, as to make them liable for the injury caused to the plaintiffs because of the death of their
son resulting from his drowning at the picnic. Accordingly, they must be absolved from any liability.
"As to the second assigned error raised by defendants-appellants, We
agree with the court a quo that the counterclaim must be dismissed
for lack of merit." (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:
"A) Whether or not there was negligence attributable to the
defendants which will warrant the award of damages to the plaintiffs;
"B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil
Code is applicable to the case at bar;
"C) Whether or not the award of exemplary and moral damages is
proper under the circumstances surrounding the case at bar." (pp. 81-
82, Rollo)
In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their respective A It was during the interview that I had gathered it from the patient herself. She was
memoranda. very sorry had she not allowed her son to join the excursion her son would
The petition is impressed with merit. have not drowned. I don't know if she actually permitted her son
If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under them. In although she said she cooked adobo so he could join. (Emphasis Supplied)
the instant case however, as will be shown hereunder, petitioners are neither guilty of their own negligence or guilty of the (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro witness)
negligence of those under them. Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school liable
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages of for the death of respondent's son.
any kind. Article 2180, par. 4 states that:
At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the "The obligation imposed by article 2176 is demandable not only for one's own acts or
excursion. omissions, but also for those of persons for whom one is responsible.
"Testimony of Dr. Castillo on cross exam. by Atty. Flores xxx xxx xxx
Q Now, when your son asked you for money to buy food, did you not ask him where he will bring Employers shall be liable for the damages caused by their employees and household
this? helpers acting within the scope of their assigned tasks, even though the former are not
A I asked him where he was going, he answered, I am going to the picnic, and when I asked him engaged in any business or industry."
where, he did not answer, sir. Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or
Q And after giving the money, you did not tell him anything more? omission which caused damage or prejudice must have occurred while an employee was in the performance of his assigned
A No more, sir. tasks.
Q And after that you just learned that your son joined the picnic? In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happened
A Yes, sir. not within the school premises, not on a school day and most importantly while the teachers and students were holding a
Q And you came to know of it after the news that your son was drowned in the picnic came to you, purely private affair, a picnic. It is clear from the beginning that the incident happened while some members of the I-C class of
is that correct? St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from the school head or its principal,
A Yes, sir. Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular
Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know activity. prLL
that your son joined the picnic? As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the
A No, sir, I did not know. students and their teachers does not in any way or in any manner show acquiescence or consent to the holding of the same.
Q Did you not look for your son during that time? The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence. If we were to
A I am too busy with my profession, that is why I was not able, sir. affirm the findings of respondent Court on this score, employers will forever be exposed to the risk and danger of being hailed
Q You did not ask your wife? to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while they are
A I did not, sir. not in the performance of their duties.
Q And neither did your wife tell you that your son joined the picnic? Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-
A Later on after 12:00, sir. spouses.
Q And during that time you were too busy that you did not inquire whether your son Petitioners Connie Arquio, the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence
have joined that picnic? of a good father of a family to prevent any untoward incident or damages to all the students who joined the picnic.
A Yes, sir." In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters who
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo) have knowledge in First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas, testified that
The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of "the defendants (petitioners herein) had life savers especially brought by the defendants in case of emergency." (p. 85, Rollo)
consent for his son to join the same. Furthermore. The records also show that both petitioners Chavez and Vinas did all what is humanly possible to save the child. LexLib
"Testimony of Dr. Lazaro on cross examination:
Q How did you conduct this mental and physical examination? "Testimony of Luisito Vinas on cross examination,
A I have interviewed several persons and the patient herself. She even felt guilty about Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having
the death of her son because she cooked adobo for him so he could join the applied first aid on him?
excursion where her son died of drowning. A Yes, sir.
Q Why were you able to say she was feeling guilty because she was the one who Q And while you were applying the so called first aid, the children were covering you up or were
personally cooked the adobo for her son? surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not? "Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious
A No, sir. anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and
Q You mean you were in calm and peaceful condition? similar injury. Though incapable of pecuniary computation, moral damages may be
A Yes, sir. recovered if they are the proximate result of the defendant's wrongful act or omission."
Q Despite the fact that the boy was no longer responding to your application of first aid? Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages
A Yes, sir. can be assessed against them.
Q You have never been disturbed, "nababahala" in the process of your application of the first aid on While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the
the body of Ferdinand Castillo? petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the
A No, sir, because we were attending to the application of first aid that we were doing, sir. safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the required diligence.
Q After you have applied back to back pressure and which you claimed the boy did not respond, Hence, the claim for moral or exemplary damages becomes baseless.
were you not disturbed anyway? PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of negligence and
A I was disturbed during that time, sir. liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners
Q For how many minutes have you applied the back to back pressure? herein are concerned, but the portion of the said decision dismissing their counterclaim, there being no merit, is hereby
A From 9 to 11 times, sir. AFFIRMED. cdphil
Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand SO ORDERED.
Castillo? Sarmiento and Regalado, JJ., concur.
A Yes, sir. Separate Opinions
Q Will you please describe how you applied a single act of back to back pressure? PADILLA, J ., dissenting:
A This has been done by placing the boy lay first downwards, then the face was a little bit facing I regret that I can not concur with the majority. I believe that the reversal of respondent appellate court's decision gives rise to
right and doing it by massaging the back of the child, sir." a situation which was neither contemplated nor intended by the applicable laws. I refer more particularly to the fact that
(TSN, pp. 32-35, hearing of July 30, 1984) the ponencia has left private respondents-spouses with no one to hold liable for the untimely demise of their son. On the other
"Testimony of Tirso de Chavez on direct examination. hand, they have, to my mind, been wronged and they should at least be recompensed for their sufferings. For this and other
ATTY. FLORES: reasons stated hereunder. I dissent.
Q Who actually applied the first aid or artificial respiration to the child? The issues, as adopted by the ponencia from the record, are as follows:
A Myself, sir. "A) Whether or not there was negligence attributable to the defendants which will
Q How did you apply the first aid to the guy? warrant the award of damages to the plaintiffs;
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure "B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable
and took notice of the condition of the child. We placed the feet in a higher position, to the case at bar;
that of the head of the child, sir. "C) Whether or not the award of exemplary and moral damages is proper under the
Q After you have placed the boy in that particular position, where the feet were on a higher level circumstances surrounding the case at bar."1
than that of the head, what did you do next? In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception of Aragones and
A The first thing that we did, particularly myself, was that after putting the child in that position, I Jaro. As to these two, respondent court absolved them from liability for their having satisfactorily demonstrated lack of
applied the back to back pressure and started to massage from the waistline up, but I participation in the negligence of their colleagues. I am in agreement with said conclusion. But I also agree with the respondent
noticed that the boy was not responding, sir. court in its finding that Tirso de Chavez, Luisito Vias, Connie Arguio and Patria Cadiz failed to exercise DILIGENT SUPERVISION
Q For how long did you apply this back to back pressure on the boy? over the children during the ill-fated excursion. cdrep
A About 10 seconds, sir. I may concede, albeit with reservation, that the afore-mentioned petitioners may not have been negligent in finding ways and
Q What about Mr. Vinas? means to revive the young Castillo AFTER the drowning incident. Their application of first-aid measures may have failed to
A Almost the same a little longer, for 15 seconds, sir. revive him but the petitioners had fully exhausted their efforts to save the deceased. This concession, however, is given with
Q After you noticed that the boy was not responding, what did you do? hesitation, for there is indication in the record that petitioners may have tarried too long in securing immediate medical
A When we noticed that the boy was not responding, we changed the position of the boy by placing attention for the deceased. I refer to the trial court's finding that "it still took the jeep which brought Ferdinand Castillo to the
the child facing upwards laying on the sand then we applied the mouth to mouth poblacion six (6) minutes before it finally moved to await the other teachers." 2
resuscitation, sir." (pp. 92-93, Rollo) All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of diligence on the part of the
With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case at bar petitioners-teachers BEFORE the unfortunate incident took place. Despite awareness that the waters in the area were deep,
does not fall under any of the grounds to grant moral damages. petitioners-teachers did not take concrete steps to make sure their wards did not stray too far and too deeply. Even if they
were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first "tested the
waters", so to speak, to ensure which parts thereof were safe for swimming purposes. However, this was not the case for as
testified to by petitioner de Chavez, "they admitted that they did not even go to the water to check its depth although they
were aware that some parts of it were deep." 3 At best, it appears that only oral safety instructions were imparted to the
young excursionists. prcd
But, what I find most disturbing is the fact that at the time the trouble arose, Vias and de Chavez, the male teachers who
were supposed to ensure the children's safety, being physical education instructors, were nowhere within the immediate
vicinity but were, in fact, as admitted by the latter, "at his house getting some foods (sic) and drinks." The Court a quo even
went as far as to say that "they were somewhere and as testified to by plaintiffs' witness they were having a drinking spree!" 4
It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer to as DILIGENCE
BEFORE THE FACT. As earlier mentioned, the steps taken to revive the deceased may be considered adequate, despite my
reservations, but the over-all lack of diligence on the part of petitioners-teachers suffices to put them within the standards set
by this Court in determining the existence of negligence. As held in Hedy Gan y Yu vs. Court of Appeals, et al., the test in
determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of
another is this: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on the doer TO
TAKE PRECAUTION against its mischievous results and the failure to do so constitutes negligence. 5
The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as represented by petitioners-
spouses Fernando Nantes and Rosario Lacandula. The majority would like to emphasize the fact that the unfortunate incident
having occurred during a purely private affair, the teachers involved therein were not in the actual performance of their
assigned tasks. Consequently, any act or omission caused by them cannot bind their employer, petitioner St. Francis High
School. LLphil
I take exception to this proposition. Although the excursion may not have been attended by the appropriate school authorities,
the presence or stamp of authority of the school nevertheless pervaded by reason of the participation not of one but of several
teachers, the petitioners. As found by the court a quo, the excursion was an activity "organized by the teachers themselves, for
the students and to which the student, NATURALLY, acceded." 6
Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion and had, in fact, been
invited to attend. As the majority see it, such knowledge does not in any manner show acquiescence or consent to the holding
of the excursion, a view which I do not accept. It seems to me that having known of the forthcoming activity, petitioner Illumin,
as school principal, should have taken appropriate measures to ensure the safety of his students. Having preferred to remain
silent, and even indifferent, he now seeks excuse from such omission by invoking his alleged lack of consent to the excursion.
But it is precisely his silence and negligence in performing his role as principal head of the school that must be construed as an
implied consent to such activity. cdrep
apprehensions, which need not arise on the part of employers, so long as the latter have no knowledge of, or give consent to,
such act or omission on the part of their employee.
Educational institutions have responsibilities which cannot be equated with those of the ordinary employer or business
establishment. Such institutions, particularly the primary and secondary schools, hold the tremendous responsibility of
exercising supervision over young children. Too often, such schools avoid liabilities, as in the instant case, by invoking the
absence of approval on their part for activities that may be held outside school premises or held on a day not a school day. It is
about time that such schools realize that theirs is not a mere money-making entity or one impersonally established for the sole
task of teaching the rudimentary skills of "reading, writing and 'rithmetic." They must consider that their students are children
of tender years who are in need of adequate care, continuing attention and guidance. LLjur
Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only wish to point out the
basis for moral damages which is found in Article 2219 of the Civil Code, to wit:
"Moral damages may be recovered in the following and analogous
cases:
1. . . .
2. Quasi-delicts causing physical injuries;
xxx xxx xxx"
It should be noted that the term "physical injuries" must not be construed in its penal sense alone but rather in its generic
sense, in the spirit of this Court's rulings in Carandang vs. Santiago (51 O.G. 2878) and Madeja vs. Caro, et al., (G.R. No. 51183,
21 December 1983, 126 SCRA 293). Thus, the death of private respondents' son as a result of petitioners' negligence gives rise
to an action for quasi-delict which, as provided, entitles the claimant to an award of moral damages.
In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the petitioners jointly and
severally liable for the death of Ferdinand Castillo.

As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of his principal (the school) or
its representatives, the petitioners-spouses Nantes and Lacandula. Consequently, and as found by the respondent court.
Article 2176 in conjunction with Article 2180, paragraphs (1) and (5) are applicable to the situation. In the application of these
provisions, the negligence of the employee in causing injury or damage gives rise to a presumption of negligence on the part of
the owner and/or manager of the establishment. While this presumption is not conclusive, it may be overcome only by clear
and convincing evidence that the owner and/or manager exercised the care and diligence of a good father of a family in the
selection and/or supervision of the employees causing the injury or damage. I agree with the respondent court that no proof
was presented to absolve the owner and/or manager, herein petitioners-spouses Nantes and Lacandula, and Illumin. Thus, as
correctly held by the respondent court, they too must be accountable for the death of Ferdinand Castillo. prLL
The majority view appears to be apprehensive that employers will be continuously held accountable for misdeeds of their
employees committed even when the same are done not in the actual exercise of their duties. I fail to appreciate such
SECOND DIVISION
[G.R. No. 182353. June 29, 2010.]
ST. JOSEPH'S COLLEGE, SR. JOSEPHINI AMBATALI, SFIC, and
ROSALINDA TABUGO, petitioners, vs. JAYSON MIRANDA,
represented by his father, RODOLFO S. MIRANDA, respondent.
DECISION
NACHURA, J p:
This petition for review on certiorari seeks to set aside the Decision 1 of the Court of Appeals
(CA) in CA-G.R. CV No. 68367, which affirmed in toto the decision 2 of the Regional Trial Court (RTC), Branch
221, Quezon City, in Civil Case No. Q-95-22889.
The facts, as found by the CA, follow:
On November 17, 1994, at around 1:30 in the afternoon inside St. Joseph College's
[SJC's] premises, the class to which [respondent Jayson Val Miranda] belonged was
conducting a science experiment about fusion of sulphur powder and iron fillings under
the tutelage of [petitioner] Rosalinda Tabugo, she being the subject teacher and
employee of [petitioner] SJC. The adviser of [Jayson's] class is . . . Estefania Abdan.
Tabugo left her class while it was doing the experiment without having adequately
secured it from any untoward incident or occurrence. In the middle of the experiment,
[Jayson], who was the assistant leader of one of the class groups, checked the result of
the experiment by looking into the test tube with magnifying glass. The test tube was
being held by one of his group mates who moved it close and towards the eye of
[Jayson]. At that instance, the compound in the test tube spurted out and several
particles of which hit [Jayson's] eye and the different parts of the bodies of some of his
group mates. As a result thereof, [Jayson's] eyes were chemically burned, particularly his
left eye, for which he had to undergo surgery and had to spend for his medication. Upon
filing of this case [in] the lower court, [Jayson's] wound had not completely healed and
still had to undergo another surgery. TSAHIa
Upon learning of the incident and because of the need for finances, [Jayson's] mother,
who was working abroad, had to rush back home for which she spent P36,070.00 for her
fares and had to forego her salary from November 23, 1994 to December 26, 1994, in
the amount of at least P40,000.00.
Then, too, [Jayson] and his parents suffered sleepless nights, mental anguish and
wounded feelings as a result of his injury due to [petitioners'] fault and failure to
exercise the degree of care and diligence incumbent upon each one of them. Thus, they
should be held liable for moral damages. Also, [Jayson] sent a demand letter to
[petitioners] for the payment of his medical expenses as well as other expenses
incidental thereto, which the latter failed to heed. Hence, [Jayson] was constrained to
file the complaint for damages. [Petitioners], therefore, should likewise compensate
[Jayson] for litigation expenses, including attorney's fees.
On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and Tabugo] alleged
that [Jayson] was a grade six pupil of SJC in the school year 1994-1995. On November 17,
1994, at about 1:30 in the afternoon, the class to which [Jayson] belong[s] was
conducting a science experiment under the guidance and supervision of Tabugo, the
class science teacher, about fusion of sulphur powder and iron fillings by combining
these elements in a test tube and heating the same. Before the science experiment was
conducted, [Jayson] and his classmates were given strict instructions to follow the
written procedure for the experiment and not to look into the test tube until the heated
compound had cooled off. [Jayson], however, a person of sufficient age and discretion
and completely capable of understanding the English language and the instructions of
his teacher, without waiting for the heated compound to cool off, as required in the
written procedure for the experiment and as repeatedly explained by the teacher,
violated such instructions and took a magnifying glass and looked at the compound,
which at that moment spurted out of the test tube, a small particle hitting one of
[Jayson's] eyes.
Jayson was rushed by the school employees to the school clinic and thereafter
transferred to St. Luke's Medical Center for treatment. At the hospital, when Tabago
visited [Jayson], the latter cried and apologized to his teacher for violating her
instructions not to look into the test tube until the compound had cooled off.
After the treatment, [Jayson] was pronounced ready for discharge and an eye test
showed that his vision had not been impaired or affected. In order to avoid additional
hospital charges due to the delay in [Jayson's] discharge, Rodolfo S. Miranda, [Jayson's]
father, requested SJC to advance the amount of P26,176.35 representing [Jayson's]
hospital bill until his wife could arrive from abroad and pay back the money. SJC acceded
to the request.
On December 6, 1994, however, the parents of [Jayson], through counsel, wrote SJC a
letter demanding that it should shoulder all the medical expenses of [Jayson] that had
been incurred and will be incurred further arising from the accident caused by the
science experiment. In a letter dated December 14, 1994, the counsel for SJC,
represented by Sr. Josephini Ambatali, SFIC, explained that the school cannot accede to
the demand because "the accident occurred by reason of [Jayson's] failure to comply
with the written procedure for the experiment and his teacher's repeated warnings and
instruction that no student must face, much less look into, the opening of the test tube
until the heated compound has cooled. 3 aAHISE
Since SJC did not accede to the demand, Rodolfo, Jayson's father, on Jayson's behalf, sued
petitioners for damages.
After trial, the RTC rendered judgment, to wit:
WHEREFORE, premises considered, judgment is hereby rendered in favor of [Jayson] and
against [petitioners]. This Court orders and holds the [petitioners] joint[ly] and solidarily
liable to pay [Jayson] the following amount:
1. To pay [Jayson] the amount of P77,338.25 as actual damages; However,
[Jayson] is ordered to reimburse [petitioner] St. Joseph College the amount of
P26,176.36 representing the advances given to pay [Jayson's] initial hospital
expenses or in the alternative to deduct said amount of P26,176.36 from the
P77,338.25 actual damages herein awarded by way of legal compensation;
2. To pay [Jayson] the sum of P50,000.00 as mitigated moral damages;
3. To pay [Jayson] the sum of P30,000.00 as reasonable attorney's fees;
4. To pay the costs of suit.
SO ORDERED. 4
Aggrieved, petitioners appealed to the CA. However, as previously adverted to, the CA
affirmed in toto the ruling of the RTC, thus:
 WHEREFORE, in view of the foregoing, the assailed decision of the RTC of Quezon City,
Branch 221 dated September 6, 2000 is hereby AFFIRMED IN TOTO. Costs against
[petitioners]. 5
Undaunted, petitioners appealed by certiorari to this Court, adamant that the CA grievously
erred, thus:
I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING THAT THE PROXIMATE
CAUSE OF JAYSON'S INJURY WAS HIS OWN ACT OF LOOKING AT THE HEATED TEST TUBE
BEFORE THE COMPOUND HAD COOLED IN COMPLETE DISREGARD OF INSTRUCTIONS
GIVEN PRIOR TO THE EXPERIMENT. AaSTIH
II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN LIGHT OF THE RULING IN
THE CASE OF ST. MARY'S COLLEGE V. WILLIAM CARPITANOS, . . . JAYSON'S
CONTRIBUTORY NEGLIGENCE OF PEEKING INTO THE TEST TUBE WAS IN FACT THE
PROXIMATE CAUSE OF HIS INJURY FOR WHICH THE PETITIONERS SHOULD NOT BE HELD
LIABLE.
III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ACTUAL
DAMAGES DESPITE THE ABSENCE OF PROOF TO SUPPORT THE SAME.
IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL DAMAGES TO
[JAYSON].
V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF
ATTORNEY'S FEES TO [JAYSON].
VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE PETITIONERS'
COUNTERCLAIM. 6
We find no reason to depart from the uniform rulings of the lower courts that petitioners were
"negligent since they all failed to exercise the required reasonable care, prudence, caution and foresight to
prevent or avoid injuries to the students."
Jurisprudence dictates that factual findings of the trial court, especially when affirmed by the
appellate court, are accorded the highest degree of respect and are considered conclusive between the
parties. 7 A review of such findings by this Court is not warranted except for highly meritorious
circumstances when: (1) the findings of a trial court are grounded entirely on speculation, surmises or
conjectures; (2) a lower court's inference from its factual findings is manifestly mistaken, absurd or
impossible; (3) there is grave abuse of discretion in the appreciation of facts; (4) the findings of the
appellate court go beyond the issues of the case, or fail to notice certain relevant facts which, if properly
considered, will justify a different conclusion; (5) there is a misappreciation of facts; (6) the findings of fact
are conclusions without mention of the specific evidence on which they are based, are premised on the
absence of evidence, or are contradicted by evidence on record. 8 None of the foregoing exceptions which
would warrant a reversal of the assailed decision obtains in this instance.
Yet, petitioners maintain that the proximate cause of Jayson's injury was his own negligence in
disregarding the instructions given by Tabugo prior to the experiment and peeking into the test tube.
Petitioners invoke our ruling in St. Mary's Academy v. Carpitanos 9 which absolved St. Mary's Academy from
liability for the untimely death of its student during a school sanctioned activity, declaring that "the
negligence of petitioner St. Mary's Academy was only a remote cause of the accident." ScEaAD
We are not convinced.
Contrary to petitioners' assertions, the lower courts' conclusions are borne out by the records of
this case. Both courts correctly concluded that the immediate and proximate cause of the accident which
caused injury to Jayson was the sudden and unexpected explosion of the chemicals, independent of any
intervening cause. The assailed Decision of the CA quotes with favor the RTC decision, thus:
In this case, [petitioners] failed to show that the negligence of [Jayson] was the
proximate cause of the latter's injury. We find that the immediate cause of the accident
was not the negligence of [Jayson] when he curiously looked into the test tube when the
chemicals suddenly exploded which caused his injury, but the sudden and unexpected
explosion of the chemicals independent of any intervening cause. [Petitioners] could
have prevented the mishap if they exercised a higher degree of care, caution and
foresight. The court a quo correctly ruled that:
"All of the [petitioners] are equally at fault and are liable for negligence
because all of them are responsible for exercising the required reasonable
care, prudence, caution and foresight to prevent or avoid injuries to the
students. The individual [petitioners] are persons charged with the teaching
and vigilance over their students as well as the supervision and ensuring of
their well-being. Based on the facts presented before this Court, these
[petitioners] were remiss in their responsibilities and lacking in the degree of
vigilance expected of them. [Petitioner] subject teacher Rosalinda Tabugo
was inside the classroom when the class undertook the science experiment
although [Jayson] insisted that said [petitioner] left the classroom. No
evidence, however, was presented to establish that [petitioner] Tabugo was
inside the classroom for the whole duration of the experiment. It was
unnatural in the ordinary course of events that [Jayson] was brought to the
school clinic for immediate treatment not by [petitioner] subject teacher
Rosalinda Tabugo but by somebody else. The Court is inclined to believe that
[petitioner] subject teacher Tabugo was not inside the classroom at the time
the accident happened. The Court is also perplexed why none of the other
students (who were eyewitnesses to the incident) testified in Court to
corroborate the story of the [petitioners]. The Court, however, understands
that these other students cannot testify for [Jayson] because [Jayson] is no
longer enrolled in said school and testifying for [Jayson] would incur the ire of
school authorities. Estefania Abdan is equally at fault as the subject adviser or
teacher in charge because she exercised control and supervision over
[petitioner] Tabugo and the students themselves. It was her obligation to
insure that nothing would go wrong and that the science experiment would
be conducted safely and without any harm or injury to the students.
[Petitioner] Sr. Josephini Ambatali is likewise culpable under the doctrine of
command responsibility because the other individual [petitioners] were
under her direct control and supervision. The negligent acts of the other
individual [petitioners] were done within the scope of their assigned tasks.
xxx xxx xxx
"The defense of due diligence of a good father of a family raised by [petitioner] St. Joseph College
will not exculpate it from liability because it has been shown that it was guilty of inexcusable laxity
in the supervision of its teachers (despite an apparent rigid screening process for hiring) and in the
maintenance of what should have been a safe and secured environment for conducting dangerous
experiments. [Petitioner] school is still liable for the wrongful acts of the teachers and employees
because it had full information on the nature of dangerous science experiments but did not take
affirmative steps to avert damage and injury to students. The fact that there has never been any
accident in the past during the conduct of science experiments is not a justification to be
complacent in just preserving the status quo and do away with creative foresight to install safety
measures to protect the students. Schools should not simply install safety reminders and distribute
safety instructional manuals. More importantly, schools should provide protective gears and
devices to shield students from expected risks and anticipated dangers. aDSIHc
"Ordinarily, the liability of teachers does not extend to the school or university itself, although an
educational institution may be held liable under the principle of RESPONDENT SUPERIOR. It has also
been held that the liability of the employer for the [tortuous] acts or negligence of its employees is
primary and solidary, direct and immediate and not conditioned upon the insolvency of or prior
recourse against the negligent employee." 10
Under the foregoing circumstances, we are hard pressed to disturb the findings of the RTC, which the CA
affirmed.
Nonetheless, petitioners make much of the fact that Tabugo specifically instructed her students,
including Jayson, at the start of the experiment, not to look into the heated test tube before the compound
had cooled off. Petitioners would allocate all liability and place all blame for the accident on a twelve (12)-
year-old student, herein respondent Jayson.
We disagree.
As found by both lower courts, the proximate cause of Jayson's injury was the concurrent failure
of petitioners to prevent the foreseeable mishap that occurred during the conduct of the science
experiment. Petitioners were negligent by failing to exercise the higher degree of care, caution and foresight
incumbent upon the school, its administrators and teachers.
Article 218 of the Family Code, in relation to Article 2180 of the Civil Code, bestows special
parental authority on the following persons with the corresponding obligation, thus:
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.
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. HTaSEA
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as they remain in their custody.
Petitioners' negligence and failure to exercise the requisite degree of care and caution is
demonstrated by the following:
1. Petitioner school did not take affirmative steps to avert damage and injury to its students
although it had full information on the nature of dangerous science experiments conducted by the students
during class;
2. Petitioner school did not install safety measures to protect the students who conduct
experiments in class;
3. Petitioner school did not provide protective gears and devices, specifically goggles, to shield
students from expected risks and dangers; and
4. Petitioner Tabugo was not inside the classroom the whole time her class conducted the
experiment, specifically, when the accident involving Jayson occurred. In any event, the size of the class
fifty (50) students conducting the experiment is difficult to monitor.
Moreover, petitioners cannot simply deflect their negligence and liability by insisting that
petitioner Tabugo gave specific instructions to her science class not to look directly into the heated
compound. Neither does our ruling in St. Mary's preclude their liability in this case.
Unfortunately for petitioners, St. Mary's is not in point. In that case, respondents thereat
admitted the documentary exhibits establishing that the cause of the accident was a mechanical defect and
not the recklessness of the minor, James Daniel II, in driving the jeep. We held, thus:
Significantly, respondents did not present any evidence to show that the proximate cause of the
accident was the negligence of the school authorities, or the reckless driving of James Daniel II. . . . .
Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the
jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio
Villanueva, who had possession and control of the jeep. He was driving the vehicle and he allowed
James Daniel II, a minor, to drive the jeep at the time of the accident. TaCDIc
Hence, liability for the accident, whether caused by the negligence of the minor driver or
mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minor's
parents primarily. The negligence of petitioner St. Mary's Academy was only a remote cause of the
accident. Between the remote cause and the injury, there intervened the negligence of the minor's
parents or the detachment of the steering wheel guide of the jeep. 11
In marked contrast, both the lower courts similarly concluded that the mishap which happened
during the science experiment was foreseeable by the school, its officials and teachers. This neglect in
preventing a foreseeable injury and damage equates to neglect in exercising the utmost degree of diligence
required of schools, its administrators and teachers, and, ultimately, was the proximate cause of the
damage and injury to Jayson. As we have held in St. Mary's, "for petitioner [St. Mary's Academy] to be liable,
there must be a finding that the act or omission considered as negligent was the proximate cause of the
injury caused because the negligence must have a causal connection to the accident." 12
As regards the contributory negligence of Jayson, we see no need to disturb the lower courts'
identical rulings thereon:
As earlier discussed, the proximate cause of [Jayson's] injury was the explosion of the heated
compound independent of any efficient intervening cause. The negligence on the part of
[petitioner] Tabugo in not making sure that the science experiment was correctly conducted was
the proximate cause or reason why the heated compound exploded and injured not only [Jayson]
but his classmates as well. However, [Jayson] is partly responsible for his own injury, hence, he
should not be entitled to recover damages in full but must likewise bear the consequences of his
own negligence. [Petitioners], therefore, should be held liable only for the damages actually caused
by their negligence. 13
Lastly, given our foregoing ruling, we likewise affirm the lower courts' award of actual and moral
damages, and grant of attorney's fees. The denial of petitioners' counterclaim is also in order.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No.
68367 is AFFIRMED. Costs against petitioners.
SO ORDERED.
THIRD DIVISION WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING PETITIONER'S MOTION FOR
[G.R. No. 157906. November 2, 2006.] RECONSIDERATION. 5
JOAQUINITA P. CAPILI, petitioner, vs. SPS. DOMINADOR CARDAA On the other hand, respondents posit the following issue:
and ROSALITA CARDAA, respondents. WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS, TWELFTH
DECISION DIVISION, IN CA G.R. CV. NO. 54412 PROMULGATED ON OCTOBER 18, 2002 . . . SHOULD
QUISUMBING, J p: BE AFFIRMED AND RESPECTED, THUS REMAIN UNDISTURBED. 6
Before us is a petition for review assailing the Decision 1 dated October 18, 2002 of the Court of Appeals in CA-G.R. CV. No. Primarily, the issue is whether petitioner is negligent and liable for the death of Jasmin Cardaa.
54412, declaring petitioner liable for negligence that resulted in the death of Jasmin Cardaa, a school child aged 12, enrolled Petitioner asserts that she was not negligent about the disposal of the tree since she had assigned her next-in-rank, Palaa, to
in Grade 6, of San Roque Elementary School, where petitioner is the principal. Likewise assailed is the Resolution 2 dated see to its disposal; that despite her physical inspection of the school grounds, she did not observe any indication that the tree
March 20, 2003 denying reconsideration. was already rotten nor did any of her 15 teachers inform her that the tree was already rotten; 7 and that moral damages
The facts are as follows: should not be granted against her since there was no fraud nor bad faith on her part.
On February 1, 1993, Jasmin Cardaa was walking along the perimeter fence of the San Roque Elementary School when a On the other hand, respondents insist that petitioner knew that the tree was dead and rotting, yet, she did not exercise
branch of acaimito tree located within the school premises fell on her, causing her instantaneous death. Thus, her parents reasonable care and caution which an ordinary prudent person would have done in the same situation.
Dominador and Rosalita Cardaa filed a case for damages before the Regional Trial Court of Palo, Leyte against petitioner. To begin, we have to point out that whether petitioner was negligent or not is a question of fact which is generally not proper
The Cardaas alleged in their complaint that even as early as December 15, 1992, a resident of the barangay, Eufronio Lerios, in a petition for review, and when this determination is supported by substantial evidence, it becomes conclusive and binding
reported on the possible danger the tree posed to passersby. Lerios even pointed to the petitioner the tree that stood near the on this Court. 8However, there is an exception, that is, when the findings of the Court of Appeals are incongruent with the
principal's office. The Cardaas averred that petitioner's gross negligence and lack of foresight caused the death of their findings of the lower court. 9In our view, the exception finds application in the present case.
daughter. The trial court gave credence to the claim of petitioner that she had no knowledge that the tree was already dead and rotting
Petitioner denied the accusation and said that at that time Lerios had only offered to buy the tree. She also denied knowing and that Lerios merely informed her that he was going to buy the tree for firewood. It ruled that petitioner exercised the
that the tree was dead and rotting. To prove her point, she presented witnesses who attested that she had brought up the degree of care and vigilance which the circumstances require and that there was an absence of evidence that would require
offer of Lerios to the other teachers during a meeting on December 15, 1992 and assigned Remedios Palaa to negotiate the her to use a higher standard of care more than that required by the attendant circumstances. 10 The Court of Appeals, on the
sale. other hand, ruled that petitioner should have known of the condition of the tree by its mere sighting and that no matter how
In a Decision 3 dated February 5, 1996, the trial court dismissed the complaint for failure of the respondents to establish hectic her schedule was, she should have had the tree removed and not merely delegated the task to Palaa. The appellate
negligence on the part of the petitioner. court ruled that the dead caimito tree was a nuisance that should have been removed soon after petitioner had chanced upon
On appeal, the Court of Appeals reversed the trial court's decision. The appellate court found the appellee (herein petitioner) it. 11
liable for Jasmin's death, as follows: A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which
Foregoing premises considered, the instant appeal is GRANTED. Appellee Joaquinita creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an
Capili is hereby declared liable for negligence resulting to the death of Jasmin D. animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor's position, in the same
Cardaa. She is hereby ordered to indemnify appellants, parents of Jasmin, the following or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it
amounts: in a more careful manner. 12
1. For the life of Jasmin D. Cardaa P50,000.00; The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a danger that is
2. For burial expenses 15,010.00; foreseeable. As the school principal, petitioner was tasked to see to the maintenance of the school grounds and safety of the
3. For moral damages 50,000.00; children within the school and its premises. That she was unaware of the rotten state of a tree whose falling branch had caused
4. For attorney's fees and litigation 10,000.00. the death of a child speaks ill of her discharge of the responsibility of her position. IEcaHS
expenses In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the
SO ORDERED. 4 damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must
Petitioner's motion for reconsideration was denied. Petitioner now comes before us submitting the following issues for our respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred. 13
resolution: The fact, however, that respondents' daughter, Jasmin, died as a result of the dead and rotting tree within the school's
I premises shows that the tree was indeed an obvious danger to anyone passing by and calls for application of the principle
WHETHER OR NOT THE COURT OF APPEALS VIS--VIS THE SET OF FACTS STATED IN THE of res ipsa loquitur.
CHALLENGED DECISION, ERRED IN FINDING THE PETITIONER NEGLIGENT AND THEREFORE LIABLE The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant an inference that it would
FOR DAMAGES UNDER ARTICLE 2206 OF THE CIVIL CODE AND IN ORDERING THE PETITIONER TO not have happened except for the defendant's negligence; (2) the accident must have been caused by an agency or
PAY DAMAGES TO THE RESPONDENTS; AND instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3)
II the accident must not have been due to any voluntary action or contribution on the part of the person injured. 14
The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere falling of the branch of
the dead and rotting tree which caused the death of respondents' daughter was a result of petitioner's negligence, being in
charge of the school.
In the case of D.M. Consunji, Inc. v. Court of Appeals, 15 this Court held:
. . . As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which
recognizes that prima facienegligence may be established without direct proof and furnishes a
substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening
of an accident or injury will not generally give rise to an inference or presumption that it
was due to negligence on defendant's part, under the doctrine of res ipsa loquitur, which
means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the
thing or instrumentality speaks for itself, the facts or circumstances accompanying an
injury may be such as to raise a presumption, or at least permit an inference of
negligence on the part of the defendant, or some other person who is charged with
negligence.SDIaCT
. . . where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the
occurrence resulting in the injury was such as in the ordinary course of things would not
happen if those who had its control or management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation
by the defendant, that the injury arose from or was caused by the defendant's want of
care.
The procedural effect of the doctrine of res ipsa loquitur is that petitioner's negligence is presumed once respondents
established the requisites for the doctrine to apply. Once respondents made out a prima facie case of all requisites, the burden
shifts to petitioner to explain. The presumption or inference may be rebutted or overcome by other evidence and, under
appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. 16
Lastly, petitioner questions the award of moral damages. Moral damages are awarded if the following elements exist in the
case: (1) an injury clearly sustained by the claimant; (2) a culpable act or omission factually established; (3) a wrongful act or
omission by the defendant as the proximate cause of the injury sustained by the claimant; and (4) the award of damages
predicated on any of the cases stated in Article 2219 of the Civil Code. 18 However, the person claiming moral damages must
prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that
one merely suffered sleepless nights, mental anguish, and serious anxiety as the result of the actuations of the other party.
Invariably, such action must be shown to have been willfully done in bad faith or with ill motive. 19 Under the circumstances,
we have to concede that petitioner was not motivated by bad faith or ill motive vis--vis respondents' daughter's death. The
award of moral damages is therefore not proper.
In line with applicable jurisprudence, we sustain the award by the Court of Appeals of P50,000 as indemnity for the death of
Jasmin, 20and P15,010 as reimbursement of her burial expenses. 21
WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002 and the Resolution dated March 20, 2003, of the
Court of Appeals in CA-G.R. CV. No. 54412 are AFFIRMED with MODIFICATION such that the award of moral damages is hereby
deleted.
Costs against petitioner.
SO ORDERED.
Carpio, Carpio Morales and Velasco, Jr., JJ., concur.
Tinga, J., is on leave.

Was petitioner's explanation as to why she failed to have the tree removed immediately sufficient to exculpate her?
As the school principal, petitioner was tasked to see to the maintenance of the school grounds and safety of the children within
the school and its premises. That she was unaware of the rotten state of the tree calls for an explanation on her part as to why
she failed to be vigilant.
Petitioner contends she was unaware of the state of the dead and rotting tree because Lerios merely offered to buy the tree
and did not inform her of its condition. Neither did any of her teachers inform her that the tree was an imminent danger to
anyone. She argues that she could not see the immediate danger posed by the tree by its mere sighting even as she and the
other teachers conducted ground inspections. She further argues that, even if she should have been aware of the danger, she
exercised her duty by assigning the disposition of the tree to another teacher.
We find petitioner's explanation wanting. As school principal, petitioner is expected to oversee the safety of the school's
premises. The fact that she failed to see the immediate danger posed by the dead and rotting tree shows she failed to exercise
the responsibility demanded by her position.
Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises supervision over her
assignee. 17 The record shows that more than a month had lapsed from the time petitioner gave instruction to her assistant
Palaa on December 15, 1992, to the time the incident occurred on February 1, 1993. Clearly, she failed to check seasonably if
the danger posed by the rotting tree had been removed. Thus, we cannot accept her defense of lack of negligence. STcDIE
SECOND DIVISION
[G.R. No. L-25843. July 25, 1974.]
MELCHORA CABANAS, plaintiff-appellee, vs. FRANCISCO
PILAPIL, defendant-appellant.
Seno, Mendoza & Associates for plaintiff-appellee.
Emilio Benitez, Jr. for defendant-appellant.
DECISION
FERNANDO, J p:
The disputants in this appeal from a question of law from a lower court decision are the mother and the uncle of a minor
beneficiary of the proceeds of an insurance policy issued on the life of her deceased father. The dispute centers as to who of
them should be entitled to act as trustee thereof. The lower court applying the appropriate Civil Code provisions decided in
favor of the mother, the plaintiff in this case. Defendant uncle appealed. As noted, the lower court acted the way it did
following the specific mandate of the law. In addition, it must have taken into account the principle that in cages of this nature
the welfare of the child is the paramount consideration. It is not an unreasonable assumption that between a mother and an
uncle, the former is likely to lavish more care on and pay greater attention to her. This is all the more likely considering that the
child is with the mother. There are no circumstances then that did militate against what conforms to the natural order of
things, even if the language of the law were not as clear. It is not to be lost sight of either that the judiciary pursuant to its role
as an agency of the State as parens patriae, with an even greater stress on family unity under the present Constitution, did
weigh in the balance the opposing claims and did come to the conclusion that the welfare of the child called for the mother to
be entrusted with such responsibility. We have to affirm.
The appealed decision made clear: "There is no controversy as to the facts." 1 The insured, Florentino Pilapil had a child,
Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten years old at the time the complaint was
filed on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the deceased. The deceased insured himself and
instituted as beneficiary, his child, with his brother to act as trustee during her minority. Upon his death, the proceeds were
paid to him. Hence this complaint by the mother, with whom the child is living, seeking the delivery of such sum. She filed the
bond required by the Civil Code. Defendant would justify his claim to the retention of the amount in question by invoking the
terms of the insurance policy. 2
After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the defendant to deliver the
proceeds of the policy in question to plaintiff. Its main reliance was on Articles 320 and 321 of the Civil Code. The former
provides: "The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under
parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to
the approval of the Court of First Instance." 3 The latter states: "The property which the unemancipated child has acquired or
may acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father
or mother under whom he is under parental authority and whose company he lives; . . ." 4
Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance proceeds belong to
the beneficiary. The beneficiary is a minor under the custody and parental authority of the plaintiff, her mother. The said minor
lives with plaintiff or lives in the company of the plaintiff. The said minor acquired this property by lucrative title. Said property,
therefore, belongs to the minor child in ownership, and in usufruct to the plaintiff, her mother. Since under our law the
usufructuary is entitled to possession, the plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is
in conflict with the above quoted provision of law, is pro tanto null and void. In order, however, to protect the rights of the
minor, Millian Pilapil, the plaintiff should file an additional bond in the guardianship proceedings, Sp. Proc. No. 2418-R of this
Court to raise her bond therein to the total amount of P5,000.00." 5
It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code provisions can be
disputed, the decision must stand. There is no ambiguity in the language employed. The words are rather clear. Their meaning
is unequivocal. Time and time again, this Court has left no doubt that where codal or statutory norms are cast in categorical
language, the task before it is not one of interpretation but of application. 6 So it must be in this case. So it was in the appealed
decision.
1. It would take more than just two paragraphs as found in the brief for the defendant-appellant 7 to blunt the force of legal
commands that speak so plainly and so unqualifiedly. Even if it were a question of policy, the conclusion will remain unaltered.
What is paramount, as mentioned at the outset, is the welfare of the child. It is in consonance with such primordial end that
Articles 320 and 321 have been worded. There is recognition in the law of the deep ties that bind parent and child. In the event
that there is less than full measure of concern for the offspring, the protection is supplied by the bond required. With the
added circumstance that the child stays with the mother, not the uncle, without any evidence of lack of maternal care, the
decision arrived at can stand the test of the strictest scrutiny. It is further fortified by the assumption, both logical and natural,
that infidelity to the trust imposed by the deceased is much less in the case of a mother than in the case of an uncle. Manresa,
commenting on Article 159 of the Civil Code of Spain, the source of Article 320 of the Civil Code, was of that view: Thus "El
derecho y la obligacion de administrar el patrimonio de los hijos es una consecuencia natural y logica de la patria potestad y de
la presuncion de que nadie cuidar de los bienes de acqullos con mas cario y solicitud que los padres. En nuestro Derecho
antiguo puede decirse que se hallaba reconocida de una manera indirecta aquella doctrina, y as! se desprende de la sentencia
cia del Tribunal Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte
aceptan en general dicho principio los Codigos extranjeros, con las limitaciones y requisitos de que trataremos m s adelante." 8
2. The appealed decision is supported by another cogent consideration. It is buttressed by its adherence to the concept that
the judiciary, as an agency of the State acting as parens patriae, is called upon whenever a pending suit of litigation affects one
who is a minor to accord priority to his best interest. It may happen, as it did occur here, that family relations may press their
respective claims. It would be more in consonance not only with the natural order of things but the tradition of the country for
a parent to be preferred. It could have been different if the conflict were between father and mother. Such is not the case at
all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State in its role of parens patriae cannot
remain insensible to the validity of her plea. In a recent case, 9 there is this quotation from an opinion of the United States
Supreme Court: "This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is
lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people and the destruction of their liberties." What is more, there is this
constitutional provision vitalizing this concept. It reads: "The State shall strengthen the family as a basic social
institution." 10 If, as the Constitution so wisely dictates, it is the family as a unit that has to be strengthened, it does not admit
of doubt that even if a stronger case were presented for the uncle, still deference to a constitutional mandate would have led
the lower court to decide as it did.
WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., did not take part.
FIRST DIVISION
[G.R. No. L-51369. July 29, 1987.]
The minors ALBERTO, NENITA, HILLY, CRISTY, and MARIA SALOME,
all surnamed BADILLO, assisted by their guardian MODESTA
BADILLO, appellees, vs. CLARITA FERRER, defendant, GREGORIO
SOROMERO and ELEUTERIA RANA, defendants-appellants.
SYLLABUS
1. CIVIL LAW; CO-OWNERSHIP; SALE OF LAND SUBJECT THEREOF; REDEMPTION; PERIOD FOR LEGAL REDEMPTION; WILL RUN
AGAINST A MINOR CO-OWNER IF GUARDIAN IS DULY SERVED WITH WRITTEN NOTICE BY VENDOR. Pursuant to Articles 320
and 326 of the New Civil Code the father, or in his absence the mother, is considered the legal administrator of the property
pertaining to his child under parental authority without need of giving a bond in case the amount of his child's property does
not exceed Two Thousand Pesos. Rule 93, Section 7, of the Revised Rules of Court goes further by automatically designating
the parent as the legal guardian of the child without need of any judicial appointment in case the latter's property does not
exceed Two Thousand Pesos. The period fixed for legal redemption in accordance with Article 1623 (then Article 1524) of the
New Civil Code will run against a minor co-owner duly represented by a judicially appointed guardian, provided that said
guardian is served with the necessary written notice by the vendor. Corollary to this, the period fixed for legal redemption will
also run against a minor co-owner whose property is valued no more than Two Thousand Pesos and who is merely represented
by his father or mother with no judicial appointment as a guardian because according to Rule 93, Section 7 of the Revised Rules
of Court, the parent in this situation is automatically the child's legal guardian. Of course, the parent-guardian must first be
served with a notice in writing of the sale of an undivided portion of the property by the vendor in order that the period for
redemption may begin to accrue.
2. ID.; SALE; CONTRACT ENTERED INTO BY NATURAL GUARDIAN WITHOUT AUTHORITY, UNENFORCEABLE; RESTITUTION NOT
PROPER. The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract under Article 1390 of the
New Civil Code. Article 1390 renders a contract voidable if one of the parties is incapable of giving consent to the contract or if
the contracting party's consent is vitiated by mistake, violence, intimidation, undue influence or fraud. In this case, however,
the appellee minors are not even parties to the contract involved. Their names were merely dragged into the contract by their
mother who claimed a right to represent them, purportedly in accordance with Article 320 of the New Civil Code. The Deed of
Extrajudicial Partition and Sale is an unenforceable or, more specifically, an unauthorized contract under Articles 1403 (1) and
1317 of the New Civil Code. Clearly, Clarita Ferrer Badillo has no authority or has acted beyond her powers in conveying to the
appellants that 5/12 undivided share of her minor children in the property involved in this case. The powers given to her by the
laws as the natural guardian covers only matters of administration and cannot include the power of disposition. She should
have first secured the permission of the court before she alienated that portion of the property in question belonging to her
minor children. The appellee minors never ratified this Deed of Extrajudicial Partition and Sale. In fact, they questions its
validity as to them. Hence, the contract remained unenforceable or unauthorized. No restitution may be ordered from the
appellee minors either as to that portion of the purchase price which pertains to their share in the property or at least as to
that portion which benefited them because the law does not sanction any.
DECISION
GANCAYCO, J p:
This case was certified to this Court by the Court of Appeals which found in its Resolution dated August 13, 1979, that the
issues raised therein are pure questions of law. The instant case is treated as a petition for review on certiorari.
The facts of this case as found by the Court of Appeals are as follows:
". . . Macario Badillo died intestate on February 4, 1966, survived by his widow, Clarita Ferrer, and
five minor children: Alberto 16, Nenita 14, Hilly 12, Cristy 9, and Maria Salome 5. He left a parcel of
registered land of 77 square meters in Lumban, Laguna, with a house erected thereon, valued at
P7,500.00, (the "PROPERTY", for short). Hence, each of the five minor plaintiffs had inherited a 1/12
share of the P7,500.00, or P625.00 each, which is less than the P2,000.00 mentioned in Article 320
of the Civil Code.
"On January 18, 1967, the surviving widow, in her own behalf and as natural guardian of the minor
plaintiffs, executed a Deed of Extrajudicial Partition and Sale of the PROPERTY through which the
PROPERTY was sold to defendants-appellants, the spouses Gregorio Soromero and Eleuteria Rana.
The Register of Deeds at Sta. Cruz, Laguna, extended recognition to the validity of the Deed of
Extrajudicial Partition and Sale, recorded the same, and issued a new transfer certificate of title to
defendants-appellants . . .
"On November 11, 1968, Modesta Badillo, a sister of Macario Badillo, was able to obtain
guardianship over the persons and properties of the minor plaintiffs, without personal notice to
their mother, who was alleged "could not be located inspite of the efforts exerted" (ROA, p. 26).
"On July 23, 1970, their guardian caused the minor plaintiffs to file a complaint in the case below for
the annulment of the sale of their participation in the PROPERTY to defendants-appellants and,
conceding the validity of the sale of the widow's participation in the PROPERTY, they asked that, as
co-owners, they be allowed to exercise the right of legal redemption.
"The lower court defined the issues in the case below as follows:
'(1) Was the sale of the shares of the plaintiffs in the ownership of the land in
question which was made by their mother, defendant Clarita Ferrer Badillo, in favor of
the defendant spouses Gregorio Soromero and Eleuteria Rana as evidenced by the
document marked as Exhibit "A" for the plaintiffs and Exhibit "2" for the defendants,
valid and binding upon the plaintiffs?
(2) May the plaintiffs, as co-owners of the property in question, still exercise
their right of redemption under Art. 1620 and pursuant to Art. 1623 of the Civil Code;
and if so, for how much?
"The lower court, invoking the Nario case (Nario vs. Philippine American Life Insurance Co., 20 SCRA
434), promulgated the appealed judgment annulling the sale to defendants-appellants of the minor
plaintiffs' participation in the PROPERTY, and allowing them to redeem the sold participation of
their mother." 1
In this appeal, the defendants-appellants assign the following errors: LLpr
I
THE COURT ERRED IN FINDING THAT THE PERIOD OF THIRTY (30) DAYS PROVIDED FOR BY ARTICLE
1623 OF THE NEW CIVIL CODE FOR PLAINTIFFS TO REDEEM THE SHARE OF THEIR MOTHER IN THE
PROPERTY SUBJECT OF THEIR CO-OWNERSHIP SOLD BY THE LATTER TO DEFENDANTS HAS NOT YET
ELAPSED.
2
THE COURT ERRED IN DECLARING THE SALE BY CLARITA FERRER BADILLO OF THE 5/12 SHARE OF HIS
CHILDREN ON THE PROPERTY INVOLVED TO DEFENDANTS AS NULL AND VOID AND RELATIVE
THERETO THE COURT CONSEQUENTLY ERRED IN ITS FAILURE TO ORDER PLAINTIFFS MINORS TO
RETURN TO DEFENDANTS THE PURCHASE PRICE AS WELL AS THE VALUE OF THE IMPROVEMENTS
MADE BY DEFENDANTS ON THE PROPERTY.
3
THE COURT ERRED IN ORDERING THE DEFENDANTS TO RE-SELL TO PLAINTIFFS THE REMAINING
7/12 PORTION OF THE PROPERTY IN QUESTION IN THE AMOUNT OF P4,375.00. 2
The Statutory provision involved in the first error assigned is Article 1623 of the New Civil Code, which is hereunder
reproduced, thus:
"ART. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty
days from the notice in writing by the prospective vendor, or by the vendor as the case may be. The
deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of
the vendor that he has given written notice thereof to all possible redemptioners.
"The right of redemption of co-owners excludes that of adjoining owners."
Under their first assignment of error, the appellants advance the view that "the requisite notice in writing provided for by
Article 1623 of the New Civil Code was already received by the minors-plaintiffs thru their then legal guardian, Clarita Ferrer
Badillo, their mother, on the date the deed of extrajudicial partition and sale was executed on January 18, 1967. And the thirty-
day period of redemption must be reckoned from this date." 3 Stated differently, under Article 320 of the New Civil Code, the
right granted to Clarita Ferrer Badillo to administer her children's property if the same is less than P2,000.00 includes the right
to receive for her minor children such notice in writing. When she received her copy of the Deed of Extrajudicial Partition and
Sale, Clarita Ferrer Badillo in effect received a notice in writing of the said sale in behalf of her minor children. cdrep
This argument is meritorious.
Articles 320 and 326 of the New Civil Code state that:
"ART. 320. The father, or in his absence the mother, is the legal
administrator of the property pertaining to the child under parental
authority. If the property is worth more than two thousand pesos, the
father or mother shall give a bond subject to the approval of the
Court of First Instance.
"ART. 326. When the property of the child is worth more than two
thousand pesos, the father or mother shall be considered a guardian
of the child's property. subject to the duties and obligations of
guardians under the Rules of Court."
In other words, the father, or in his absence the mother, is considered the legal
administrator of the property pertaining to his child under parental authority without
need of giving a bond in case the amount of his child's property does not exceed Two
Thousand Pesos.
Rule 93, Section 7, of the Revised Rules of Court goes further by automatically designating the parent as the legal guardian of
the child without need of any judicial appointment in case the latter's property does not exceed Two Thousand Pesos. It reads,
thus:
"SEC. 7. Parents as guardians. When the property of the child under parental authority is worth
two thousand pesos or less, the father or the mother, without the necessity of court appointment,
shall be his legal guardian. When the property of the child is worth more than two thousand pesos,
the father or the mother shall be considered guardian of the child's property, with the duties and
obligations of guardians under these rules, and shall file the petition required by section 2 hereof.
For good reasons the court may, however, appoint another suitable person."
Our standing jurisprudence reveals that there is a case which is applicable to the case at bar. This case involved an
interpretation of Article 1524 of the Old Civil Code, the statutory provision from which Article 1623 of the New Civil Code
originated and the one which the latter amended. The two articles are basically the same except that Article 1623 mandates a
longer period for redemption and limits the manner of transmitting the notice of the sale of the property co-owned to one in
writing served by the vendor.
The case is Villasor vs. Medel, et al. 4
In this case, the co-owner plaintiff, upon reaching the age of majority, sought to redeem a portion of a large tract of land which
was sold to the defendant while the former was still a minor, The plaintiff, during his minority, became a co-owner of an
undivided property which he, together with his cousins, acquired by donation from his grandmother. A legal guardian was duly
appointed by the court to represent the minor co-owners. This legal guardian later sold, with the necessary permission of the
court, the shares of three co-owners to the defendant. When the plaintiff reached the age of majority, he wanted to redeem
the said shares. LibLex
This Court ruled in favor of the defendant, holding that:
"The law in prescribing certain contingencies as the starting point from which the nine-day period
should be counted, is to be presumed to exclude all others. Exclusio unius est exclusio alterius. The
starting point is registration or, in the absence of registration, knowledge of the conveyance by the
co-owners. It is logical to assume that if minority had been contemplated, the law would have so
expressly stated. This is specially true in a code which, unlike an ordinary statute, is framed with
meticulous care and thorough reflection. The role of minors in cases of legal redemption is too
conspicuous and perceptible to have been overlooked in the framing of article 1524. The onerous
position of the purchaser and considerations of public interest, we believe, forbade liberality as to
time in favor of redemptioners; hence the limitation of the causes of extension to those factors
(actual or constructive notice) without which the exercise of the right of redemption would not be
possible. The shortness of the period fixed in the above article is itself a safe index, in our opinion,
of its peremptoriness and inflexibility."
". . . The present appellant not only had such a guardian but it was this very guardian, Jose C.
Villasor. who, as guardian of plaintiff's cousins and former co-owners, sold the lots in question to
the defendant-appellee. This guardian not only could have repurchased those lots for the plaintiff
within nine days but could have sold them, with the court's authority, directly to the plaintiff
himself instead of to Medalla." 5
In the decision, this Court frowned against a liberal interpretation of the codal provision prescribing the period for legal
redemption, hence, the following disquisition, to wit:
. . . legal redemption is in the nature of a mere privilege created by law partly for reasons of public
policy and partly for the benefit and convenience of the redemptioner, to afford him a way out of
what might be a disagreeable or inconvenient association into which he has been thrust."
". . . The right of legal redemption is a pure creature of the law regulated by law, and works only
one way - in favor of the redemptioner. Not having parted with anything, the legal redemptioner
can compel the purchaser to sell but can not be compelled to buy.
"We do not believe that the framers of the Civil Code ever intended to countenance a situation so
unjust to one of the parties and prejudicial to social interest. The construction of article 1524 which
the plaintiff offers would keep the property in a state of indivision even if one of the co-owners
wanted to separate. This is contrary to the express policy of the law that `No co-owner shall be
obliged to remain a party to the community, but each may, at any time, demand partition of the
thing held in common.' (Article 400, Civil Code.) It would be extremely unfair to the purchaser and
injurious to the public welfare to keep in a state of suspense, for possibility as long as 20 years or
more, what his co-owner might do when he becomes of age. While the uncertainty continued the
purchaser could not make any improvement on the property without running the risk of losing his
investments and the fruits of his labor." 6
The wisdom that can easily be formulated in reconciling the laws and the case discussed above is that the period fixed for legal
redemption in accordance with Article 1623 (then Article 1524) of the New Civil Code will run against a minor co-owner duly
represented by a judicially appointed guardian, provided that said guardian is served with the necessary written notice by the
vendor. Corollary to this, the period fixed for legal redemption will also run against a minor co-owner whose property is valued
no more than Two Thousand Pesos and who is merely represented by his father or mother with no judicial appointment as a
guardian because according to Rule 93, Section 7 of the Revised Rules of Court, the parent in this situation is automatically the powers, shall be unenforceable, unless it is ratified, expressly or
child's legal guardian. Of course, the parent-guardian must first be served with a notice in writing of the sale of an undivided impliedly, by the person on whose behalf it has been executed,
portion of the property by the vendor in order that the period for redemption may begin to accrue. LibLex before it is revoked by the other contracting party." 11
In the case at bar, the value of the property of each appellee minor does not exceed Two Thousand Pesos. The Court of Clearly, Clarita Ferrer Badillo has no authority or has acted beyond her powers in conveying to the appellants that 5/12
Appeals found that each of them inherited only an undivided portion worth P625.00. 7 Therefore, after the minors' father died, undivided share of her minor children in the property involved in this case. The powers given to her by the laws as the natural
their mother, Clarita Ferrer Badillo, automatically became their legal guardian. As such, she acquired the plenary powers of a guardian covers only matters of administration and cannot include the power of disposition. 12 She should have first secured
judicial guardian except that power to alienate or encumber her children's property without judicial authorization. 8 the permission of the court before she alienated that portion of the property in question belonging to her minor children. 13
When Clarita Ferrer Badillo signed and received on January 18, 1967, her copy of the Deed of Extrajudicial Partition and Sale, The appellee minors never ratified this Deed of Extrajudicial Partition and Sale. In fact, they questions its validity as to them.
the document evidencing the transfer of the property in question to the appellants, she also in effect received the notice in Hence, the contract remained unenforceable or unauthorized. No restitution may be ordered from the appellee minors either
writing required by Article 1623 in behalf of her children. This manner of receiving a written notice is specifically sanctioned by as to that portion of the purchase price which pertains to their share in the property or at least as to that portion which
the case of Conejero, et al. vs. Court of Appeals, et al. 9 Thus, in this case, the period of redemption began to toll from the time benefited them because the law does not sanction any.
of that receipt. The third error assigned need not be discussed further because Our pronouncement on the first assignment of error has
On the other hand, the judicial guardian of the appellee minors, Modesta Badillo, was only appointed as such on November 11, rendered it academic. Suffice it to state that since the 30-day period for redemption had already lapsed, the appellants cannot
1968. She thereafter manifested her desire to redeem the property from the appellants, formalizing such intention in the be ordered to re-sell to the appellees the remaining 7/12 portion of the property in question. LLpr
complaint that was finally filed for this case on July 23, 1970. In view of the foregoing, the appellants are hereby ordered to restore to the appellees the full ownership and possession of the
Since the required written notice was served on January 18, 1967 and the offer to redeem was only made after November 11, latter's 5/12 share in the undivided property by executing the proper deed of reconveyance. The appellants' ownership over
1968, the period for legal redemption had already expired and the appellants cannot now be ordered to reconvey to the the remaining 7/12 share in the undivided property is hereby confirmed.
appellees that portion of the undivided property which originally belonged to Clarita Ferrer Badillo. WHEREFORE, the decision under review is hereby modified accordingly and appellants are directed to deliver possession of
Under the second assignment of error, the appellants contend that the Deed of Extrajudicial Partition and Sale, in so far as it above appellees' share, with no pronouncement as to costs.
sold to them the appellee minors' share of 5/12, is a voidable contract pursuant to Article 1390 of the New Civil Code. They SO ORDERED.
then quoted verbatim the text of the said article without identifying the particular portion of that provision which directly Teehankee, (C.J.), Narvasa, Cruz and Paras, JJ., concur.
supports their contention.
According to the appellants, in case a voidable contract is annulled, Article 1398 requires the restitution by the contracting
parties to each other of the things received by them under the contract. The appellants, however, concede that by express
mandate of Article 1399, full restitution cannot be ordered from the minors involved in the contract. Said minors can only be
required to restore partially, only to the extent of the benefits they received by virtue of the questioned contract. prLL
This contention is untenable.
The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract under Article 1390 of the New Civil
Code. Article 1390 renders a contract voidable if one of the parties is incapable of giving consent to the contract or if the
contracting party's consent is vitiated by mistake, violence, intimidation, undue influence or fraud. In this case, however, the
appellee minors are not even parties to the contract involved. Their names were merely dragged into the contract by their
mother who claimed a right to represent them, purportedly in accordance with Article 320 of the New Civil Code. 10
The Deed of Extrajudicial Partition and Sale is an unenforceable or, more specifically, an unauthorized contract under Articles
1403 (1) and 1317 of the New Civil Code. These provisions state that:
"ART. 1403. The following contracts are unenforceable, unless they
are ratified:
"(1) Those entered into in the name of another person by one who
has been given no authority or legal representation, or who has acted
beyond his powers; . . ."

"ART. 1317. No one may contract in the name of another without

being authorized by the latter, or unless he has by law a right to
represent him.
"A contract entered into in the name of another by one who has no
authority or legal representation, or who has acted beyond his