SECOND DIVISION

[G.R. No. 95551. March 20, 1997]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. CONCEPCION S. ALARCON VERGARA, in her capacity as Presiding Judge of the Regional
Trial Court, Third Judicial Region, Branch 62, Angeles City and SPOUSES SAMUEL ROBERT DYE, JR. and ROSALINA D. DYE, respondents.
DECISION
ROMERO, J.:

On June 25, 1990, the spouses Samuel R. Dye, Jr. and Rosalina Due Dye filed a petition before the Regional Trial Court of Angeles City[1] to adopt Maricel
R. Due and Alvin R. Due, ages 13 and 12 years old, respectively, younger siblings of Rosalina. Samuel R. Dye, Jr, a member of the United States Air Force,
is an American citizen who resided at the Clark Air Base in Pampanga. His wife Rosalina is a former Filipino who became a naturalized American. They have
two children. Both Maricel and Alvin Due, as well as their natural parents, gave their consent to the adoption.

After trial, the lower court rendered its decision on September 10, 1990 granting the petition and declaring Alvin and Maricel to be the children of the spouses
Dye by adoption.[2] Respondent Regional Trial Court disregarded the sixteen-year age gap requirement of the law, the spouses being only fifteen years and
three months and fifteen years and nine months older than Maricel Due, on the ground that a literal implementation of the law would defeat the very
philosophy behind adoption statutes, namely, to promote the welfare of a child.[3] The court also found that the petitioning spouses are mentally and
physically fit to adopt, possess good moral character, sufficient financial capability and love and affection for the intended adoptees.

The Republic filed this petition for review on a pure question of law, contending that the spouses Dye are not qualified under the law to adopt Maricel and
Alvin Due.

The Court finds the petition meritorious and hereby grants it.

As a general rule, aliens cannot adopt Filipino citizens as this is proscribed under Article 184 of the Family Code which states:

"Art. 184. The following persons may not adopt:

xxx xxx xxx

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by
law."

Samuel Robert Dye, Jr. who is an American and, therefore, an alien is disqualified from adopting the minors Maricel and Alvin Due because he does not fall
under any of the three aforequoted exceptions laid down by the law. He is not a former Filipino citizen who seeks to adopt a relative by consanguinity. Nor
does he seek to adopt his wife's legitimate child. Although he seeks to adopt with his wife her relatives by consanguinity, he is not married to a Filipino
citizen, for Rosalina was already a naturalized American at the time the petition was filed, thus excluding him from the coverage of the exception. The law
here does not provide for an alien who is married to a former Filipino citizen seeking to adopt jointly with his or her spouse a relative by consanguinity, as an
exception to the general rule that aliens may not adopt.

On her own. Rosalina Dye cannot adopt her brother and sister for the law mandates joint adoption by husband and wife, subject to exceptions. Article 29 of
Presidential Decree No. 603 (Child and Youth Welfare Code) retained the Civil Code provision[4] that husband and wife may jointly adopt. The Family Code
amended this rule by scrapping the optional character of joint adoption and making it now mandatory. Article 185 of the Family Code provides:

"Art. 185. Husband and wife must adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate child;

(2) When one spouse seeks to adopt the legitimate child of the other."

None of the above exceptions applies to Samuel and Rosalina Dye, for they did not petition to adopt the latter's child but her brother and sister.

The Court has previously recognized the ineligibility of a similarly situated alien husband with a former Filipino wife seeking to adopt the latter's nephews and
niece in the case of Republic v. Court of Appeals.[5] Although the wife in said case was qualified to adopt under Article 184, paragraph 3 (a), she being a
former Filipino who seeks to adopt a relative by consanguinity, she could not jointly adopt with her husband under Article 185 because he was an alien
ineligible to adopt here in the Philippines.

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of children. Accordingly, the law should be construed
liberally, in a manner that will sustain rather than defeat said purpose.[6] The law must also be applied with compassion, understanding and less severity in
view of the fact that it is intended to provide homes, love, care and education for less fortunate children.[7] Regrettably, the Court is not in a position to affirm
the trial court's decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial
legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses' petition for adoption.

WHEREFORE, the instant petition is hereby GRANTED. The Decision of the Regional Trial Court of Angeles City in Special Proceeding No. 4203 (In the
Matter of the Petition for Adoption of the minors Maricel R. Due and Alvin R. Due), dated September 10, 1990 is REVERSED AND SET ASIDE.

SO ORDERED.
FIRST DIVISION

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM G.R. Nos. 168992-93 ,

IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,
Petitioner. May 21, 2009

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DECISION

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision[1] dated 15 September 2004 of the Regional
Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated
petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor
children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner
and Lim registered the children to make it appear that they were the childrens parents. The children[2] were named Michelle P. Lim (Michelle) and Michael
Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.[3] Michael was 11 days
old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname Lim in all their
school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an
American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty[5] given under Republic Act No. 8552[6] (RA 8552) to those individuals who
simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court
docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already
married, while Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.[7] Michael also gave his consent to his adoption as
shown in his Affidavit of Consent.[8] Petitioners husband Olario likewise executed an Affidavit of Consent[9] for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the
whereabouts of her natural parents were unknown.[10] The DSWD issued a similar Certification for Michael.[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should
have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c),
Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court
ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that mere consent of her husband
would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the
husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that
joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes
certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

The Courts Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and
welfare of the child to be adopted. Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption cases. She argues that joint parental
authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already
18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined
by her husband Olario. We have no other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is
explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving
moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to
support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter
and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in
his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity
of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the
spouses. (Emphasis supplied)

The use of the word shall in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the
concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but
natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the
petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption
on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of
petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally
separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must
comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has
diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of
the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country;
and (5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these qualifications were shown and proved during the
trial.

These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant to Section 7. The children or
adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of
petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This
is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical
character and well-being.[13] The father and the mother shall jointly exercise parental authority over the persons of their common children.[14] Even the
remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the
person or property of the children.[15]

It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of age[16] emancipation terminates
parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life.[17] However, parental
authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE V
EFFECTS OF ADOPTION

SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the
adoptee shall be severed and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to
all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled
to love, guidance, and support in keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the
spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising
from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right
of the adopter and adoptee to be legal and compulsory heirs of each other.[18] Therefore, even if emancipation terminates parental authority, the adoptee is
still considered a legitimate child of the adopter with all the rights[19] of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to
receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to
the adopted child, enjoy all the benefits to which biological parents are entitled[20] such as support[21] and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration.
They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and
family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate
objectives of the law.[23] But, as we have ruled in Republic v. Vergara:[24]

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be
construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less
severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position
to affirm the trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against
judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses petition for adoption.
(Emphasis supplied)

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own
legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case
for dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution
of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That
being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were
filed, petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in
SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.
FIRST DIVISION
DIWATA RAMOS LANDINGIN G.R. No. 164948
- versus -
REPUBLIC OF THE PHILIPPINES,
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DECISION
CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision[1] of the Court of Appeals in CA-G.R. CV No. 77826 which
reversed the Decision[2] of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner
herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a
petition[3] for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;[4] Elma Dizon Ramos, who was born on September 7, 1987;[5]
and Eugene Dizon Ramos who was born on August 5, 1989.[6] The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia
Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,[7] the children were left to their paternal grandmother, Maria Taruc
Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with
her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by
the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have
given their written consent[8] to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are
already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and
works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent[9] to the adoption of
the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in
petitioners custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the
minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow the
family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.[10]

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of
Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.[11]
The Office of the Solicitor General (OSG) entered its appearance[12] but deputized the City Prosecutor of Tarlac to appear in its behalf.[13] Since her petition
was unopposed, petitioner was allowed to present her evidence ex parte.[14]

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her
siblings.[15] The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all
surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.[16]

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following
recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons:

1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to
provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint
Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent.

3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love,
care, guidance and support to ensure their protection and well being.

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their
maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close
attachments was already developed between the petitioner and the 3 minors.[17]

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal
interview concerning the adoption of her children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The
paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While
preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She
realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy.
Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be
in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.[18]

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise,
failed to present any documentary evidence to prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads:

WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal
obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos
Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive
parents. Let the surnames of the children be changed from Dizon-Ramos to Ramos-Landingin.

Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth
certificates of the above-mentioned minors.

SO ORDERED.[19]

The OSG appealed[20] the decision to the Court of Appeals on December 2, 2002. In its brief[21] for the oppositor-appellant, the OSG raised the following
arguments
I

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES
BIOLOGICAL MOTHER.
II

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS
CHILDREN AS REQUIRED BY LAW.
III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A
POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision[22] reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of
Amelia Ramos, the childrens natural mother. Moreover, the affidavit of consent of the petitioners children could not also be admitted in evidence as the same
was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not
stable enough to support the children. The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No.
2733 is hereby REVERSED and SET ASIDE.

SO ORDERED.[23]

Petitioner filed a Motion for Reconsideration[24] on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.[25]

Petitioner, thus, filed the instant petition for review on certiorari[26] on September 7, 2004, assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT
AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE
TO SUPPORT THE THREE CHILDREN.[27]

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of
their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopters children sufficiently
complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees.

The Courts Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,[28] that adoption statutes, being humane and salutary,
hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate,
needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every
reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.[29]

However, in Cang v. Court of Appeals,[30] the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries
out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount
consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should
not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve
adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the
child.[31]

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:

Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of
the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latters souse, if any;
(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference
by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.[32]

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child
requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case,
petitioner failed to submit the written consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May
2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to
execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the
petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelias husband died in 1990, she
left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including
petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further
contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second
marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the
social worker that she conformed to the adoption of her three children by the petitioner.

Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides
that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by
petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all
parental duties.[33] The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love,
care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.[34]

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.[35] To dispense with the requirement of
consent, the abandonment must be shown to have existed at the time of adoption.[36]
In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children.
Petitioners testimony on that matter follows:

Q Where is the mother of these three children now?

A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family?
A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second marriage?
A Yes, sir, she got two kids.[37]

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother communicate with you?
A No, sir.[38]
However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

xxxx

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an
uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been
supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support
but very minimal.[39]
xxxx

V. Background Information about the Minors Being Sought for Adoption:

xxxx

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also
encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and
petitioner-aunt.[40]
xxxx

In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her
husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her
husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents
mortgaged their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she
died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2
years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is
amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to
his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.
[41]

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely
impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing
the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems.
Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia,
and the adoptees, and that the same shall then be vested on the adopter.[42] It would thus be against the spirit of the law if financial consideration were to
be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that
Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.[43] Again,
it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which
the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment
only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such
document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits
do not confer any evidentiary weight on documents unless formally offered.[44]

Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which
she, likewise, failed to prove. The joint written consent of petitioners children[45] was notarized on January 16, 2002 in Guam, USA; for it to be treated by the
Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,[46] which states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and
authentication are made in accordance with the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, charg d affaires, consul, vice-consul, or consular agent of
the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the
country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same
person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to
keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of
the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister,
secretary of legation, charg de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which
he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly
authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had
authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and
seal, if any, are genuine.

As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a
private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the
signature or handwriting of the makers.[47]

Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is
inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing,
support and commitment of her children and her siblings.[48] Petitioner contradicts this by claiming that she is financially capable as she has worked in
Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have
likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home
Study Report that petitioner has limited income. Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to
support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the
family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also
be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the
means of the family.

According to the Adoption Home Study Report[49] forwarded by the Department of Public Health & Social Services of the Government of Guam to the
DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of
the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners
main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still
being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US.
She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the
OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and
the latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are financially able and that they are willing
to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing
the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

SO ORDERED.
THIRD DIVISION
[G.R. No. 105308. September 25, 1998]
HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents.

DECISION

ROMERO, J.:

Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? The answer to this
interesting query, certainly not one of first impression, would have to be reached, not solely on the basis of law and jurisprudence, but also the hard reality
presented by the facts of the case.

This is the question posed before this Court in this petition for review on certiorari of the Decision[1] of the Court of Appeals affirming the decree of adoption
issued by the Regional Trial Court of Cebu City, Branch 14,[2] in Special Proceedings No. 1744-CEB, In the Matter of the Petition for Adoption of the minors
Keith, Charmaine and Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners.

Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children, namely: Keith, born on July 3, 1973;
Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981.

During the early years of their marriage, the Cang couples relationship was undisturbed. Not long thereafter, however, Anna Marie learned of her husbands
alleged extramarital affair with Wilma Soco, a family friend of the Clavanos.

Upon learning of her husbands alleged illicit liaison, Anna Marie filed a petition for legal separation with alimony pendente lite[3] with the then Juvenile and
Domestic Relations Court of Cebu[4] which rendered a decision[5] approving the joint manifestation of the Cang spouses providing that they agreed to live
separately and apart or from bed and board. They further agreed:

(c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00) effective from the date of the filing of the
complaint. This shall constitute a first lien on the net proceeds of the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City;

(d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or juridical without the written consent of the
husband; or any undertaking or acts that ordinarily requires husbands consent as the parties are by this agreement legally separated;[6]

Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District Court of the State of Nevada. Said
court issued the divorce decree that also granted sole custody of the three minor children to Anna Marie, reserving rights of visitation at all reasonable times
and places to petitioner.[7]

Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced his American wife and never remarried.

While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month[8] a portion of which was remitted to the
Philippines for his childrens expenses and another, deposited in the bank in the name of his children.

Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and sister-in-law of
Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of the three minor Cang children before the Regional Trial Court of Cebu. The petition
bears the signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that her husband
had evaded his legal obligation to support his children; that her brothers and sisters including Ronald V. Clavano, had been helping her in taking care of the
children; that because she would be going to the United States to attend to a family business, leaving the children would be a problem and would naturally
hamper (her) job-seeking venture abroad; and that her husband had long forfeited his parental rights over the children for the following reasons:

1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband;

2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one place to another to avoid detection by
Immigration authorities, and

3. Her husband had divorced her.

Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and filed an opposition thereto, alleging that, although private
respondents Ronald and Maria Clara Clavano were financially capable of supporting the children while his finances were too meager compared to theirs, he
could not in conscience, allow anybody to strip him of his parental authority over his beloved children.

Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that Anna Marie had transferred to the United
States thereby leaving custody of their children to private respondents. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an
order finding that Anna Marie had, in effect, relinquished custody over the children and, therefore, such custody should be transferred to the father. The court
then directed the Clavanos to deliver custody over the minors to petitioner.

On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive portion reading as follows:

WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by the petitioners-
spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved. These children shall henceforth be known and called as Keith
D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall:

(1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners;

(2) Dissolve the authority vested in the parents by nature, of the children; and,

(3) Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes.

SO ORDERED.

In so ruling, the lower court was impelled by these reasons:

(1) The Cang children had, since birth, developed close filial ties with the Clavano family, especially their maternal uncle, petitioner Ronald Clavano.

(2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station and mini-mart in
Rosemead, California, U.S.A., had substantial assets and income.

(3) The natural mother of the children, Anna Marie, nicknamed Menchu, approved of the adoption because of her heart ailment, near-fatal accident in 1981,
and the fact that she could not provide them a secure and happy future as she travels a lot.

(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to Catholic schools.

(5) The children themselves manifested their desire to be adopted by the Clavanos Keith had testified and expressed the wish to be adopted by the
Clavanos while the two younger ones were observed by the court to have snuggled close to Ronald even though their natural mother was around.
On the other hand, the lower court considered the opposition of petitioner to rest on a very shaky foundation because of its findings that:

(1) Petitioner was morally unfit to be the father of his children on account of his being an improvident father of his family and an undisguised Lothario. This
conclusion is based on the testimony of his alleged paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City.

(2) The alleged deposits of around $10,000 that were of comparatively recent dates were attempts at verisimilitude as these were joint deposits the
authenticity of which could not be verified.

(3) Contrary to petitioners claim, the possibility of his reconciliation with Anna Marie was dim if not nil because it was petitioner who devised, engineered and
executed the divorce proceedings at the Nevada Washoe County court.

(4) By his naturalization as a U.S. citizen, petitioner is now an alien from the standpoint of Philippine laws and therefore, how his new attachments and
loyalties would sit with his (Filipino) children is an open question.

Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the lower court concluded as follows:

Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is commonly specified by statute as a
ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be
allowed not only without the consent of the parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp.
131 Cal. 469, 63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing
R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4
Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.)[9]

Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best interest of the three children if they were
adopted by private respondents Ronald and Maria Clara Clavano. He asserted that the petition for adoption was fatally defective and tailored to divest him of
parental authority because: (a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine did not
properly give their written consent; and (d) the petitioners for adoption did not present as witness the representative of the Department of Social Welfare and
Development who made the case study report required by law.

The Court of Appeals affirmed the decree of adoption stating:

Article 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that the consent of the
parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is
whether or not oppositor may be considered as having abandoned the children. In adoption cases, abandonment connotes any conduct on the part of the
parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and legal obligations which parents
owe their children (Santos vs. Ananzanso, supra), or the withholding of the parents presence, his care and the opportunity to display voluntary affection. The
issue of abandonment is amply covered by the discussion of the first error.

Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their names. His duty to
provide support comes from two judicial pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month.
The second is mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each child.
Oppositor has not submitted any evidence to show compliance with the decision in JD-101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24
to 45) drawn in the childrens names totalling $2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced
under the divorce decree on May 5, 1982 so that as of October 6, 1987, oppositor should have made 53 remittances of $150.00, or a total of $7,950.00. No
other remittances were shown to have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the
divorce decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been performing his
duties as a father, contrary to his protestations.

True, it has been shown that oppositor had opened three accounts in different banks, as follows

Acct. No.

1) 118-606437-4 2) 73-166-8 3) 564-146883

Date Opened July 23, 1985 Oct. 29, 1987 March 5, 1986
Balance $5,018.50 3,129.00 2,622.19
Name of Bank Great Western Savings, Daly City, Cal., U.S.A.Matewan National Bank of Williamson, West Virginia, U.S.A.
Security Pacific National Bank, Daly City, Cal., U.S.A.

The first and third accounts were opened however in oppositors name as trustee for Charmaine Cang and Joseph Anthony Cang, respectively. In other
words, the accounts are operated and the amounts withdrawable by oppositor himself and it cannot be said that they belong to the minors. The second is an
`or account, in the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the
funds withdrawable by him alone.

The bank accounts do not really serve what oppositor claimed in his offer of evidence `the aim and purpose of providing for a better future and security of his
family.[10]

Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal separation was not based on the merits of the
case as it was based on a manifestation amounting to a compromise agreement between him and Anna Marie. That he and his wife agreed upon the plan
for him to leave for the United States was borne out by the fact that prior to his departure to the United States, the family lived with petitioners parents.
Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated the joint complaint for divorce.

Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him of custody over the children in Civil Case
No. JD-707. He took exception to the appellate courts findings that as an American citizen he could no longer lay claim to custody over his children because
his citizenship would not take away the fact that he is still a father to his children. As regards his alleged illicit relationship with another woman, he had
always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that Wilma Soco was a neighbor and family friend
of the Clavanos as she was residing in Mandaue City seven (7) kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that
the testimony of Wilma Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of
Ronald, came to know her and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly, petitioner averred that
it would be hypocritical of the Clavanos to claim that they could love the children much more than he could.[11]

His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for adoption was fatally defective as it did not
have his written consent as a natural father as required by Article 31 (2) of Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188
(2) of the Family Code.

Article 31 of P.D. No. 603 provides -

ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly licensed child placement agency under whose care
the child may be;
(3) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)

On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and
Youth Welfare Code. As thus amended, Article 31 read:

ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate social services from the Ministry of Social Services and
Development or from a duly licensed child-placement agency;

(3) The Ministry of Social Services and Development or any duly licensed child-placement agency under whose care and legal custody the child may be;

(4) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)

Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the
jurisdiction of the court.[12] As such, when private respondents filed the petition for adoption on September 25, 1987, the applicable law was the Child and
Youth Welfare Code, as amended by Executive Order No. 91.

During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child and Youth Welfare Code took effect. Article
256 of the Family Code provides for its retroactivity insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or
other laws. As amended by the Family Code, the statutory provision on consent for adoption now reads:

Art. 188. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if ten years of age or over;

(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality;

(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;

(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent and the latters spouse, if any; and

(5) The spouse, if any, of the person adopting or to be adopted. (Underscoring supplied)

Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of the natural parent to the adoption has
remained a requisite for its validity. Notably, such requirement is also embodied in Rule 99 of the Rules of Court as follows:

SEC. 3. Consent to adoption. There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and
not incompetent, and by the childs spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned
the child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum,
childrens home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such persons; but if the child is
illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Underscoring supplied)

As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable for the validity of the decree of adoption.
Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child[13] or that such parent is insane or hopelessly
intemperate. The court may acquire jurisdiction over the case even without the written consent of the parents or one of the parents provided that the petition
for adoption alleges facts sufficient to warrant exemption from compliance therewith. This is in consonance with the liberality with which this Court treats the
procedural aspect of adoption. Thus, the Court declared:

x x x. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should
contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading.
Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give
the court jurisdiction.[14]

In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioners consent, as the natural father is
lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural father as follows:

3. That the childrens mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as shown by Affidavit of Consent,
Annex `A. Likewise, the written consent of Keith Cang, now 14 years of age appears on page 2 of this petition; However, the father of the children, Herbert
Cang, had already left his wife and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by
the County of Washoe, State of Nevada, U.S.A. (Annex `B) which was filed at the instance of Mr. Cang, not long after he abandoned his family to live in the
United States as an illegal immigrant.[15]

The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner, sufficiently vested the lower court with jurisdiction
since abandonment of the child by his natural parents is one of the circumstances under which our statutes and jurisprudence[16] dispense with the
requirement of written consent to the adoption of their minor children.

However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he had abandoned
his child becomes a proper issue for determination. The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court
must first confront. Only upon failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition
for adoption be considered on its merits.

As a rule, factual findings of the lower courts are final and binding upon this Court.[17] This Court is not expected nor required to examine or contrast the oral
and documentary evidence submitted by the parties.[18] However, although this Court is not a trier of facts, it has the authority to review and reverse the
factual findings of the lower courts if it finds that these do not conform to the evidence on record.[19]

In Reyes v. Court of Appeals,[20] this Court has held that the exceptions to the rule that factual findings of the trial court are final and conclusive and may not
be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of
discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the
trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion and (10) when
the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that should have elicited a different
conclusion[21] on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption unnecessary.

In its ordinary sense, the word abandon means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to the root idea of putting
under a ban. The emphasis is on the finality and publicity with which a thing or body is thus put in the control of another, hence, the meaning of giving up
absolutely, with intent never to resume or claim ones rights or interests.[22] In reference to abandonment of a child by his parent, the act of abandonment
imports any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. It means
neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children.[23]
In the instant case, records disclose that petitioners conduct did not manifest a settled purpose to forego all parental duties and relinquish all parental claims
over his children as to constitute abandonment. Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment.[24]
While admittedly, petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care
and support for his children. He maintained regular communication with his wife and children through letters and telephone. He used to send packages by
mail and catered to their whims.

Petitioners testimony on the matter is supported by documentary evidence consisting of the following handwritten letters to him of both his wife and children:

1. Exh. 1 a 4-page undated letter of Menchu (Anna Marie) addressed to Dear Bert on a C.Westates Carbon Phil. Corp. stationery. Menchu stated therein that
it had been a long time since the last time youve heard from me excluding that of the phone conversation weve had. She discussed petitioners intention to
buy a motorbike for Keith, expressing apprehension over risks that could be engendered by Keiths use of it. She said that in the last phone conversation she
had with petitioner on the birthday of Ma, she forgot to tell petitioner that Keiths voice had changed; he had become a bagito or a teen-ager with many fans
who sent him Valentines cards. She told him how Charmaine had become quite a talkative almost dalaga who could carry on a conversation with her
angkong and how pretty she was in white dress when she won among the candidates in the Flores de Mayo after she had prayed so hard for it. She
informed him, however, that she was worried because Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony),
she told petitioner that the boy was smart for his age and quite spoiled being the youngest of the children in Lahug. Joeton was mischievous but Keith was
his idol with whom he would sleep anytime. She admitted having said so much about the children because they might not have informed petitioner of some
happenings and spices of life about themselves. She said that it was just very exciting to know how theyve grown up and very pleasant, too, that each of
them have (sic) different characters. She ended the letter with the hope that petitioner was at the best of health. After extending her regards to all, she
signed her name after the word Love. This letter was mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West
Virginia 25661 (Exh. 1-D).

2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print of a note from Menchu on the left upper corner. Anna Marie stated that we wrote to
petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited when petitioner called up last time. She told him how Joeton would grab the phone
from Keith just so petitioner would know what he wanted to order. Charmaine, who was asleep, was so disappointed that she missed petitioners call
because she also wanted something that petitioner should buy. Menchu told petitioner that Charmaine wanted a pencil sharpener, light-colored T-shirts for
her walking shorts and a (k)nap sack. Anna Marie informed petitioner that the kids were growing up and so were their needs. She told petitioner to be very
fatherly about the childrens needs because those were expensive here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines
and that whatever expenses he would incur, she would replace these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored Sperry
topsider shoes.

3. Exh. 3 an undated note on a yellow small piece of paper that reads:

Dear Herbert,

Hi, how was Christmas and New Year? Hope you had a wonderful one.

By the way thanks for the shoes, it was a nice one. Its nice to be thought of at Xmas. Thanks again.

Sincerely,

Menchu

4. Exh. 4 a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to Dear Dad. Keith told his father that they tried to tell their mother
to stay for a little while, just a few weeks after classes start(s) on June 16. He informed petitioner that Joeton would be in Kinder I and that, about the
motorbike, he had told his mother to write petitioner about it and well see what youre (sic) decision will be. He asked for chocolates, nuts, basketball shirt
and shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that they had been going to Lahug with their mother
picking them up after Angkong or Ama had prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00
oclock in the evening. He wished his father luck and the best of health and that they prayed for him and their other relatives. The letter was ended with Love
Keith.

5. Exh. 5 another undated long letter of Keith. He thanked his father for the Christmas card with $40.00, $30.00 and $30.00 and the card of Joeton with
$5.00 inside. He told petitioner the amounts following his fathers instructions and promise to send money through the mail. He asked his father to address
his letter directly to him because he wanted to open his own letters. He informed petitioner of activities during the Christmas season that they enjoyed eating,
playing and giving surprises to their mother. He apprised him of his daily schedule and that their mother had been closely supervising them, instructing them
to fold their blankets and pile up their pillows. He informed petitioner that Joeton had become very smart while Charmaine, who was also smart, was very
demanding of their mother. Because their mother was leaving for the United States on February 5, they would be missing her like they were missing
petitioner. He asked for his things and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross even when they
would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because he had seen him on the betamax machine. For Keith,
Charmaine had become very maldita who was not always satisfied with her dolls and things but Joeton was full of surprises. He ended the letter with Love
your son, Keith. The letter was mailed on February 6, 1985 (Exh. 5-D).

6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half shirt, pencil sharpener and $50.00. She
reminded him of of her birthday on January 23 when she would turn 9 years old. She informed him that she wore size 10 and the size of her feet was IM.
They had fun at Christmas in Lahug but classes would start on January 9 although Keiths classes had started on January 6. They would feel sad again
because Mommy would be leaving soon. She hoped petitioner would keep writing them. She signed, Love, Charmaine.

7. Exh . 7 an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to him. He informed him of their trip to Manila
they went to Malacaang, Tito Doy Laurels house, the Ministry of Foreign Affairs, the executive house, Tagaytay for three days and Baguio for one week. He
informed him that he got honors, Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and he
was glad they would be together in that school. He asked for his reward from petitioner and so with Charmaine and Joeton. He asked for a motorbike and
dollars that he could save. He told petitioner that he was saving the money he had been sending them. He said he missed petitioner and wished him the
best. He added that petitioner should call them on Sundays.

8. Exh. 8 a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from petitioner to buy something for the school and
something else. She promised not to spend so much and to save some. She said she loved petitioner and missed him. Joeton said hi! to petitioner. After
ending the letter with Love, Joeton and Charmaine, she asked for her prize for her grades as she got seventh place.

9. Exh. 9 undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have some money but he would save them; that he
learned that petitioner had called them up but he was not around; that he would be going to Manila but would be back home May 3; that his Mommy had just
arrived Thursday afternoon, and that he would be the official altar boy. He asked petitioner to write them soon.

10. Exh. 10 Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank and he was proud because he was the
only one in his group who saved in the bank. He told him that Joeton had become naughty and would claim as his own the shirts sent to Keith by petitioner.
He advised petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He informed petitioner that he was a
member of the basketball team and that his mom would drive for his group. He asked him to call them often like the father of Ana Christie and to write them
when he would call so that they could wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with
the letter that had taken him so long to write because he did not want to commit any mistakes. He asked petitioner to buy him perfume (Drakkar) and, after
thanking petitioner, added that the latter should buy something for Mommy.

11. Exh. 11 a Christmas card For My Wonderful Father dated October 8, 1984 from Keith, Charmaine and Joeton.

12. Exh. 12 another Christmas card, Our Wish For You with the year 83 written on the upper right hand corner of the inside page, from Keith, Charmaine and
Joeton.
13. Exh. 13 a letter of Keith telling petitioner that he had written him even when their Mom was there where she bought them clothes and shoes. Keith asked
petitioner for $300.00. Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed
petitioner that he would go to an afternoon disco with friends but their grades were all good with Joeton receiving stars for excellence. Keith wanted a bow
and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them someday.

14. Exh. 14 a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they had received the package that the latter
sent them. The clothes he sent, however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and
more clothes. He asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards that would make her look
sexy. He intimated to petitioner that he had grown taller and that he was already ashamed to be asking for things to buy in the grocery even though his
mother had told him not to be shy about it.

Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the filing of the petition for adoption, he had
deposited amounts for the benefit of his children.[25] Exhibits 24 to 45 are copies of checks sent by petitioner to the children from 1985 to 1989.

These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over these, ignoring not only evidence on
financial support but also the emotional exchange of sentiments between petitioner and his family. Instead, the courts below emphasized the meagerness of
the amounts he sent to his children and the fact that, as regards the bank deposits, these were withdrawable by him alone. Simply put, the courts below
attached a high premium to the prospective adopters financial status but totally brushed aside the possible repercussion of the adoption on the emotional
and psychological well-being of the children.

True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the matter as shown by his testimony is
contradicted by his feelings towards his father as revealed in his letters to him. It is not at all farfetched to conclude that Keiths testimony was actually the
effect of the filing of the petition for adoption that would certainly have engendered confusion in his young mind as to the capability of his father to sustain the
lifestyle he had been used to.

The courts below emphasized respondents emotional attachment to the children. This is hardly surprising for, from the very start of their young lives, the
children were used to their presence. Such attachment had persisted and certainly, the young ones act of snuggling close to private respondent Ronald
Clavano was not indicative of their emotional detachment from their father. Private respondents, being the uncle and aunt of the children, could not but come
to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his hospital bills.

In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he could give the child a larger measure of
material comfort than his natural parent. Thus, in David v. Court of Appeals,[26] the Court awarded custody of a minor illegitimate child to his mother who
was a mere secretary and market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with his mother.
The Court said:

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.

In Celis v. Cafuir[27] where the Court was confronted with the issue of whether to award custody of a child to the natural mother or to a foster mother, this
Court said:

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 at her sacrifices
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 (sic) 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. x x x.

In Espiritu v. Court of Appeals,[28] the Court stated that (I)n ascertaining the welfare and best interests of the child, courts are mandated by the Family Code
to take into account all relevant considerations. Thus, in awarding custody of the child to the father, the Court said:

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 interests 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. (Italics supplied)[29]

Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of
parental authority over his children. There should be a holistic approach to the matter, taking into account the physical, emotional, psychological, mental,
social and spiritual needs of the child.[30] The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than
his inability to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had so emotionally
abandoned them that his children would not miss his guidance and counsel if they were given to adopting parents. The letters he received from his children
prove that petitioner maintained the more important emotional tie between him and his children. The children needed him not only because he could cater to
their whims but also because he was a person they could share with their daily activities, problems and triumphs.

The Court is thus dismayed that the courts below did not look beyond petitioners meager financial support to ferret out other indications on whether
petitioner had in fact abandoned his family. The omission of said courts has led us to examine why the children were subjected to the process of adoption,
notwithstanding the proven ties that bound them to their father. To our consternation, the record of the case bears out the fact that the welfare of the children
was not exactly the paramount consideration that impelled Anna Marie to consent to their adoption.

In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to travel abroad often, was a problem that
would naturally hamper her job-seeking abroad. In other words, the adoption appears to be a matter of convenience for her because Anna Marie herself is
financially capable of supporting her children.[31] In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two
years and came home twice or three times,[32] thereby manifesting the fact that it was she who actually left her children to the care of her relatives. It was
bad enough that their father left their children when he went abroad, but when their mother followed suit for her own reasons, the situation worsened. The
Clavano family must have realized this. Hence, when the family first discussed the adoption of the children, they decided that the prospective adopter should
be Anna Maries brother Jose. However, because he had children of his own, the family decided to devolve the task upon private respondents.[33]

This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent Ronald Clavano commutes between Cebu
and Manila while his wife, private respondent Maria Clara, is an international flight stewardess.[34] Moreover, private respondent Ronald claimed that he
could take care of the children while their parents are away,[35] thereby indicating the evanescence of his intention. He wanted to have the childrens
surname changed to Clavano for the reason that he wanted to take them to the United States as it would be difficult for them to get a visa if their surname
were different from his.[36] To be sure, he also testified that he wanted to spare the children the stigma of being products of a broken home.

Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother Jose points to the inescapable
conclusion that they just wanted to keep the children away from their father. One of the overriding considerations for the adoption was allegedly the state of
Anna Maries health she was a victim of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition
was not that serious as she could still take care of the children.[37] An eloquent evidence of her ability to physically care for them was her employment at the
Philippine Consulate in Los Angeles[38]- she could not have been employed if her health were endangered. It is thus clear that the Clavanos attempt at
depriving petitioner of parental authority apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that
her children would never be at ease with the wife of their father.[39]
Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma Soco.[40] As to whether he was telling the
truth is beside the point. Philippine society, being comparatively conservative and traditional, aside from being Catholic in orientation, it does not
countenance womanizing on the part of a family man, considering the baneful effects such irresponsible act visits on his family. Neither may the Court place
a premium on the inability of a man to distinguish between siring children and parenting them. Nonetheless, the actuality that petitioner carried on an affair
with a paramour cannot be taken as sufficient basis for the conclusion that petitioner was necessarily an unfit father.[41] Conventional wisdom and common
human experience show that a bad husband does not necessarily make a bad father. That a husband is not exactly an upright man is not, strictly speaking,
a sufficient ground to deprive him as a father of his inherent right to parental authority over the children.[42] Petitioner has demonstrated his love and
concern for his children when he took the trouble of sending a telegram[43] to the lower court expressing his intention to oppose the adoption immediately
after learning about it. He traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite his family
once more in the United States.[44]

Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the support of the children. Petitioner was an
illegal alien in the United States. As such, he could not have procured gainful employment. Private respondents failed to refute petitioners testimony that he
did not receive his share from the sale of the conjugal home,[45] pursuant to their manifestation/compromise agreement in the legal separation case. Hence,
it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family, particularly his children. The proceeds may not have
lasted long but there is ample evidence to show that thereafter, petitioner tried to abide by his agreement with his wife and sent his family money, no matter
how meager.

The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and
privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should
be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence.[46] The discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but
likewise, with due regard to the natural rights of the parents over the child.[47]

In this regard, this Court notes private respondents reliance on the manifestation/compromise agreement between petitioner and Anna Marie which became
the basis of the decree of legal separation. According to private respondents counsel,[48] the authority given to Anna Marie by that decree to enter into
contracts as a result of the legal separation was all embracing[49] and, therefore, included giving her sole consent to the adoption. This conclusion is
however, anchored on the wrong premise that the authority given to the innocent spouse to enter into contracts that obviously refer to their conjugal
properties, shall include entering into agreements leading to the adoption of the children. Such conclusion is as devoid of a legal basis as private
respondents apparent reliance on the decree of legal separation for doing away with petitioners consent to the adoption.

The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity, deprive petitioner of parental
authority for the purpose of placing the children up for adoption. Article 213 of the Family Code states: . . . in case of legal separation of parents, parental
authority shall be exercised by the parent designated by the court. In awarding custody, 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.

It should be noted, however, that the law only confers on the innocent spouse the exercise of parental authority. Having custody of the child, the innocent
spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have the right to the childs services and
earnings, and the right to direct his activities and make decisions regarding his care and control, education, health and religion.[50]

In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law upon the parents,[51] as

x x x a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical preservation and development, as well as the
cultivation of their intellect and the education of their hearts 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 law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a childrens
home or an orphan institution. When a parent entrusts the custody of a minor to another, such as 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.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.[52]
(Italics supplied)

As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to
Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of the spouses.

While parental authority may be waived, as in law it may be subject to a compromise,[53] there was no factual finding in the legal separation case that
petitioner was such an irresponsible person that he should be deprived of custody of his children or that there are grounds under the law that could deprive
him of parental authority. In fact, in the legal separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to
petitioner. The order was not implemented because of Anna Maries motion for reconsideration thereon. The Clavano family also vehemently objected to the
transfer of custody to the petitioner, such that the latter was forced to file a contempt charge against them.[54]

The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason was established in the legal separation
case. In the instant case for adoption, the issue is whether or not petitioner had abandoned his children as to warrant dispensation of his consent to their
adoption. Deprivation of parental authority is one of the effects of a decree of adoption.[55] But there cannot be a valid decree of adoption in this case
precisely because, as this Court has demonstrated earlier, the finding of the courts below on the issue of petitioners abandonment of his family was based
on a misappreciation that was tantamount to non-appreciation, of facts on record.

As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escao[56] that a divorce obtained by Filipino citizens after the
effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an American citizen, as regards Anna
Marie who has apparently remained a Filipino citizen, the divorce has no legal effect.

Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. Thus, in Silva v. Court of Appeals,
[57] a case involving the visitorial rights of an illegitimate parent over his child, the Court expressed the opinion that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and
welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged
and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this
affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place emphasis in adoption proceedings, not
so much on the need of childless couples for a child, as on the paramount interest of a child who needs the love and care of parents. After the passage of
the Child and Youth Welfare Code and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry
Adoption[58] and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children.[59]

The case at bar applies the relevant provisions of these recent laws, such as the following policies in the Domestic Adoption Act of 1998:

(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards
the full and harmonious development of his/her personality.[60]

(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set
forth in the United Nations (UN) Convention on the Rights of the Child.[61]
(c) To prevent the child from unnecessary separation from his/her biological parent(s).[62]

Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government and its officials are duty bound to
comply with its mandates. Of particular relevance to instant case are the following provisions:

States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the evolving capacities of the child,
appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.[63]

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both
parents on a regular basis, except if it is contrary to the childs best interests.[64]

A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and
direct contacts with both parents . . .[65]

States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent
with the evolving capacities of the child.[66]

Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding principle that all
actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the primary right of the parent or parents to
exercise parental authority over him. The rights of parents vis--vis that of their children are not antithetical to each other, as in fact, they must be respected
and harmonized to the fullest extent possible.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching eighteen, the age
of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to state that this case has been
rendered moot and academic, for their welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption
was filed.[67] Said petition must be denied as it was filed without the required consent of their father who, by law and under the facts of the case at bar, has
not abandoned them.

WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution of the Court of Appeals, as well as
the decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all
surnamed Cang, by the spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory.
SECOND DIVISION
[A.M. No. RTJ-96-1362. July 18, 1997]

DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT, Field Office No. 1, San Fernando, La Union, represented by CORAZON M. LAYUG,
complainant, vs. JUDGE ANTONIO M. BELEN, Regional Trial Court, Branch 38, Lingayen, Pangasinan, and ELMA P. VEDAA, Social Welfare Officer
II, Office of the Clerk of Court, Regional Trial Court, Lingayen, Pangasinan, respondents.
DECISION

REGALADO, J.:

In this administrative complaint initiated by Corazon M. Layug, Social Welfare Officer IV of the Department of Social Welfare and Development (DSWD),
Field Office No. 1 stationed in San Fernando, La Union, respondent Judge Antonio M. Belen of the Regional Trial Court, Branch 38, of Lingayen,
Pangasinan, is charged with rendering an erroneous decree of adoption in violation of Article 33 of Presidential Decree No. 603, otherwise known as The
Child and Youth Welfare Code, and the corresponding Supreme Court circular thereon, namely, Circular No. 12 dated October 2, 1986.

Respondent Elma P. Vedaa, Social Welfare Officer II, Office of the Clerk of Court, Regional Trial Court of Lingayen, Pangasinan is charged with disregarding
the provisions of the same Circular No. 12 of this Court in connection with the aforementioned special proceeding.

As appears from the records, the spouses Desiderio Soriano and Aurora Bernardo-Soriano, both of whom are naturalized American citizens, filed a verified
petition for adoption of their niece, the minor Zhedell Bernardo Ibea, which was docketed as Special Proceeding No. 5830 of the Regional Trial Court of
Lingayen, Pangasinan, and assigned to Branch 38 thereof. In due time, respondent Judge Belen granted the petition in a decision dated June 25, 1992, after
finding that petitioner spouses were highly qualified to adopt the child as their own.

Among other evidence adduced before him, respondent judge based his decree primarily on the findings and recommendation of the DSWD that the
adopting parents on the one hand and the adoptee on the other hand have already developed love and emotional attachment and parenting rules have been
demonstrated to the minor. On these considerations, respondent judge decided and proceeded to dispense with trial custody. Said DSWD findings and
recommendations, as respondent judge asserted in his judgment, are contained in the Adoptive Home Study Report and Child Study Report prepared by the
local office of the DSWD through respondent Elma P. Vedaa.[1]

However, when the minor Zhedell Bernardo Ibea sought to obtain the requisite travel clearance from the DSWD in order to join her adoptive parents in the
United States, the department uncovered what it considered as an anomalous adoption decree regarding said minor. It turned out that the DSWD did not
have any record in its files regarding the adoption and that there was never any order from respondent judge for the DSWD to conduct a Home and Child
Study Report in the case. Furthermore, there was no directive from respondent judge for the social welfare officer of the lower court to coordinate with the
DSWD on the matter of the required reports for said minors adoption.

As the adoption never passed through the DSWD, it filed the present administrative complaint against respondent judge charging him with violating Article 33
of Presidential Decree No. 603 which requires, inter alia, that petitions for adoption shall be granted only after the DSWD has conducted and submitted a
case study of the adoptee, the natural parents and the adoptive parents. It was also alleged by the DSWD that respondent Elma P. Vedaa had asked for an
undisclosed amount of money from the adopting parents in order to expedite the adoption case with the DSWD.[2]

In its 1st Indorsement dated April 19, 1996, the Office of the Court Administrator (OCA) of this Court required respondent to comment on the letter-complaint
of the DSWD. Respondent judge, in compliance therewith, claimed that he directed respondent Vedaa to conduct the home and case study, and thereafter
submit the required reports thereon, precisely because the same are among her duties under the Manual for Clerks of Court. Since these functions were so
provided to be performed by her, there was no need for him to order said respondent social welfare officer to coordinate with the DSWD as he assumed that
it was routine procedure for her to do so. In addition, respondent judge contends that, except only for direct coordination with the DSWD in the preparation of
said reports, no approval from the DSWD is necessary for the home and case study reports and it need not be furnished therewith. Finally, he says that he
based his adoption decree not only on the recommendations of respondent Vedaa but also upon all the other evidence submitted in the adoption
proceeding.[3]

In the Informal Preliminary Inquiry report dated August 16, 1996 and addressed by way of a memorandum to the Office of the Chief Justice, the OCA
recommended that respondent judge be administratively punished for violating Circular No. 12 of this Court, dated October 2, 1986, and Article 33 of
Presidential Decree No. 603. Respondent Elma P. Vedaa, on the other hand, was asked to explain her failure to coordinate with the DSWD regional office in
the preparation of the pertinent reports and to comment on the allegation that she asked for money from the adopting parents.

In her comment, respondent Vedaa pointed out that there never was any directive from respondent judge for her to coordinate with the DSWD concerning
the adoption in question. She was only ordered to conduct the case study and submit her report thereon to the court at least one week before the initial
hearing of the case, as was also the practice in the other Regional Trial Courts. She flatly denied that she ever asked for money from the prospective
adoptive parents of the minor Zhedell Bernardo Ibea.[4]

On November 27, 1996, this Court resolved to refer the administrative matter against the two respondents to the OCA for evaluation, report and
recommendation. Thereafter, the said office reiterated the fact that respondent judge definitely rendered the adoption decree in derogation of the provisions
of Article 33 of Presidential Decree No. 603 and of Circular No. 12 of this Court. Additionally, while the act of corruption attributed to her was not proved,
respondent Vedaa, on her part, likewise failed to comply with the requirement in Circular No. 12 that she should have coordinated with the DSWD in
connection with the preparation of the home and case study reports.

Indeed, Article 33 of the Child and Youth Welfare Code provides in no uncertain terms that:

No petition for adoption shall be granted unless the Department of Social Welfare, or the Social Work and Counselling Division, in case of Juvenile and
Domestic Relations Courts, has made a case study of the child to be adopted, his natural parents as well as the prospective adopting parents, and has
submitted its report and recommendations on the matter to the court hearing such petition. The Department of Social Welfare shall intervene on behalf of the
child if it finds, after such case study, that the petition should be denied.

Circular No. 12, as a complementary measure, was issued by this Court precisely to obviate the mishandling of adoption cases by judges, particularly in
respect to the aforementioned case study to be conducted in accordance with Article 33 of Presidential Decree No. 603 by the DSWD itself and involving the
child to be adopted, its natural parents, and the adopting parents. It definitively directs Regional Trial Courts hearing adoption cases:

"0(1) to NOTIFY the Ministry of Social Services and Development, thru its local agency, of the filing of adoption cases or the pendency thereof with respect
to those cases already filed;

(2) to strictly COMPLY with the requirement in Article 33 of the aforesaid decree x x x
xxx

The Staff Assistant V (Social Worker) of the Regional Trial Courts, if any, shall coordinate with the Ministry of Social Services and Development
representatives in the preparation and submittal of such case study. x x x

The error on the part of both respondent judge and social worker is thus all too evident. Pursuant to Circular No. 12, the proper course that respondent judge
should have taken was to notify the DSWD at the outset about the commencement of Special Proceeding No. 5830 so that the corresponding case study
could have been accordingly conducted by said department which undoubtedly has the necessary competence, more than that possessed by the court
social welfare officer, to make the proper recommendation. Moreover, respondent judge should never have merely presumed that it was routinary for the
social welfare officer to coordinate with the DSWD regarding the adoption proceedings. It was his duty to exercise caution and to see to it that such
coordination was observed in the adoption proceedings, together with all the other requirements of the law.

By respondents failure to do so, he may well have wittingly or unwittingly placed in jeopardy the welfare and future of the child whose adoption was under
consideration. Adoption, after all, is in a large measure a legal device by which a better future may be accorded an unfortunate child like Zhedell Bernardo
Ibea in this case. Treading on equally sensitive legal terrain, the social welfare officer concerned, respondent Elma P. Vedaa, arrogated unto herself a matter
that pertained exclusively to the DSWD, her task being to coordinate with the DSWD in the preparation and submission of the relevant case study reports,
and not to make the same and recommend by herself the facts on which the court was to act.

The Code of Judicial Conduct requires that a magistrate should be the embodiment of, among other desirable characteristics, judicial competence.[5] It need
not be stressed here that among the prime duties to which a judge of the law must ever be faithful is that of being abreast with the law and jurisprudence,
since, as has so often been advanced, the administration of justice requires the continuous study of law and jurisprudence.[6] Respondent judge has
obviously not been able to achieve the level of this expectation.

In like manner, respondent Elma P. Vedaa has imprudently acted beyond the bounds and strictures of her duties as a Social Welfare Officer II of the
Regional Trial Court. As an employee of a court of justice, she should have been well aware not only of the scope of her duties and responsibilities but that
she should have likewise been familiar with current laws, rules and regulations pertinent to her position as such social welfare officer. By her misfeasance,
she has compromised the prescribed process in the administration of justice in proceedings such as the one under consideration.

We are, however, persuaded that respondent judge acted in good faith when he stated in his decision that the DSWD submitted the required reports to his
court through respondent Vedaa, presumably in the belief that it was standard procedure for the Social Welfare Officer II of a Regional Trial Court to do so in
coordination with the DSWD. We also agree with the findings of the OCA that there is no evidence whatsoever that respondent Vedaa sought to obtain any
amount from the adopting parents. In fact, this is belied by the affidavit of the childs natural mother, Loreta Ibea. We are, therefore, inclined to adopt a liberal
view on the charges against respondents.

ACCORDINGLY, with a stern warning that a repetition of the same or similar acts in the future shall be dealt with more severely by this Court, respondent
Judge Antonio M. Belen of the Regional Trial Court, Branch 38, of Lingayen, Pangasinan is hereby CENSURED for violating Article 33 of Presidential Decree
No. 603 and Circular No. 12 of this Court; and respondent Elma P. Vedaa, Social Welfare Officer II of the Office of the Clerk of Court, Regional Trial Court of
Lingayen, Pangasinan, is REPRIMANDED for violating Circular No. 12.

SO ORDERED.
SECOND DIVISION
[G.R. No. 117209. February 9, 1996]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. JOSE R. HERNANDEZ, in his capacity as Presiding Judge, Regional Trial Court, Branch 158,
Pasig City and SPOUSES VAN MUNSON y NAVARRO and REGINA MUNSON y ANDRADE, respondents.

DECISION
REGALADO, J.:

Indeed, whats in a name, as the Bard of Avon has written, since a rose by any other name would smell as sweet?

This could well be the theme of the present appeal by certiorari which challenges, on pure questions of law, the order of the Regional Trial Court, Branch
158, Pasig City, dated September 13, 1994[1] in JDRC Case No. 2964. Said court is faulted for having approved the petition for adoption of Kevin Earl
Bartolome Moran and simultaneously granted the prayer therein for the change of the first name of said adoptee to Aaron Joseph, to complement the
surname Munson y Andrade which he acquired consequent to his adoption.

The facts are undisputed. On March 10, 1994, herein private respondent spouses, Van Munson y Navarro and Regina Munson y Andrade, filed a petition[2]
to adopt the minor Kevin Earl Bartolome Moran, duly alleging therein the jurisdictional facts required by Rule 99 of the Rules of Court for adoption, their
qualifications as and fitness to be adoptive parents, as well as the circumstances under and by reason of which the adoption of the aforenamed minor was
sought. In the very same petition, private respondents prayed for the change of the first name of said minor adoptee to Aaron Joseph, the same being the
name with which he was baptized in keeping with religious tradition, and by which he has been called by his adoptive family, relatives and friends since May
6, 1993 when he arrived at private respondents residence.[3]

At the hearing on April 18, 1994, petitioner opposed the inclusion of the relief for change of name in the same petition for adoption. In its formal opposition
dated May 3, 1995,[4] petitioner reiterated its objection to the joinder of the petition for adoption and the petitions for change of name in a single proceeding,
arguing that these petitions should be conducted and pursued as two separate proceedings.

After considering the evidence and arguments of the contending parties, the trial court ruled in favor of herein private respondents in this wise:

WHEREFORE, minor child Kevin Earl Bartolome Moran is freed from all legal obligations of obedience and maintenance with respect to his natural parents,
and for all legal intents and purposes shall be known as Aaron Joseph Munson y Andrade, the legally adopted child of Van Munson and Regina Munson
effective upon the filing of the petition on March 10, 1994. As soon as the decree of adoption becomes final and executory, it shall be recorded in the Office
of the Local Civil Registrar of Pasig, Metro Manila pursuant to Section 8, Rule 99 and Section 6, Rule 103, respectively, of the Rules of Court, and shall be
annotated in the record of birth of the adopted child, which in this case is in Valenzuela, Metro Manila, where the child was born. Likewise, send a copy of
this Order to the National Census and Statistics Office, Manila, for its appropriate action consisten(t) herewith.[5]

At this juncture, it should be noted that no challenge has been raised by petitioner regarding the fitness of herein private respondents to be adopting parents
nor the validity of the decree of adoption rendered in their favor. The records show that the latter have commendably established their qualifications under
the law to be adopters,[6] and have amply complied with the procedural requirements for the petition for adoption,[7] with the findings of the trial court being
recited thus:

To comply with the jurisdictional requirements, the Order of this Court dated March 16, 1994 setting this petition for hearing (Exh. A) was published in the
March 31, April 6 and 13, 1994 issues of the Manila Chronicle, a newspaper of general circulation (Exhs. B to E and submarkings). x x x

xxx xxx xxx

Petitioners apart from being financially able, have no criminal nor derogatory record (Exhs. K to V); and are physically fit to be the adoptive parents of the
minor child Kevin (Exh. W). Their qualification to become the adoptive parents of Kevin Earl finds support also in the Social Case Study Report prepared by
the DSWD through Social Worker Luz Angela Sonido, the pertinent portion of which reads:

Mr. and Mrs. Munson are very religious, responsible, mature and friendly individuals. They are found physically healthy, mentally fit, spiritually and financially
capable to adopt Kevin Earl Moran a.k.a Aaron Joseph.

Mr. and Mrs. Munson have provided AJ with all his needs. They unselfishly share their time, love and attention to him. They are ready and willing to
continuously provide him a happy and secure home life.

Aaron Joseph, on the other hand, is growing normally under the care of the Munsons. He had comfortably settled in his new environment. His stay with the
Munsons during the six months trial custody period has resulted to a close bond with Mr. and Mrs. Munson and vice-versa.

We highly recommend to the Honorable Court that the adoption of Kevin Earl Moran aka Aaron Joseph by Mr. and Mrs. Van Munson be legalized.[8]

It has been said all too often enough that the factual findings of the lower court, when sufficiently buttressed by legal and evidential support, are accorded
high respect and are binding and conclusive upon this Court.[9] Accordingly, we fully uphold the propriety of that portion of the order of the court below
granting the petition for adoption.

The only legal issues that need to be resolved may then be synthesized mainly as follows: (1) whether or not the court a quo erred in granting the prayer for
the change of the registered proper or given name of the minor adoptee embodied in the petition for adoption; and (2) whether or not there was lawful
ground for the change of name.

I. It is the position of petitioner that respondent judge exceeded his jurisdiction when he additionally granted the prayer for the change of the given or proper
name of the adoptee in a petition for adoption.

Petitioner argues that a petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different
from and are not related to each other, being respectively governed by distinct sets of law and rules. In order to be entitled to both reliefs, namely, a decree
of adoption and an authority to change the given or proper name of the adoptee, the respective proceedings for each must be instituted separately, and the
substantive and procedural requirements therefor under Articles 183 to 193 of the Family Code in relation to Rule 99 of the Rules of Court for adoption, and
Articles 364 to 380 of the Civil Code in relation to Rule 103 of the Rules of Court for change of name, must correspondingly be complied with.[10]

A perusal of the records, according to petitioner, shows that only the laws and rules on adoption have been observed, but not those for a petition for change
of name.[11] Petitioner further contends that what the law allows is the change of the surname of the adoptee, as a matter of right, to conform with that of the
adopter and as a natural consequence of the adoption thus granted. If what is sought is the change of the registered given or proper name, and since this
would involve a substantial change of ones legal name, a petition for change of name under Rule 103 should accordingly be instituted, with the substantive
and adjective requisites therefor being conformably satisfied.[12]

Private respondents, on the contrary, admittedly filed the petition for adoption with a prayer for change of name predicated upon Section 5, Rule 2 which
allows permissive joinder of causes of action in order to avoid multiplicity of suits and in line with the policy of discouraging protracted and vexatious
litigations. It is argued that there is no prohibition in the Rules against the joinder of adoption and change of name being pleaded as two separate but related
causes of action in a single petition. Further, the conditions for permissive joinder of causes of action, i.e., jurisdiction of the court, proper venue and joinder
of parties, have been met.[13]

Corollarily, petitioner insists on strict adherence to the rule regarding change of name in view of the natural interest of the State in maintaining a system of
identification of its citizens and in the orderly administration of justice.[14] Private respondents argue otherwise and invoke a liberal construction and
application of the Rules, the welfare and interest of the adoptee being the primordial concern that should be addressed in the instant proceeding.[15]

On this score, the trial court adopted a liberal stance in holding that
Furthermore, the change of name of the child from Kevin Earl Bartolome to Aaron Joseph should not be treated strictly, it appearing that no rights have been
prejudiced by said change of name. The strict and meticulous observation of the requisites set forth by Rule 103 of the Rules of Court is indubitably for the
purpose of preventing fraud, ensuring that neither State nor any third person should be prejudiced by the grant of the petition for change of name under said
rule, to a petitioner of discernment.

The first name sought to be changed belongs to an infant barely over a year old. Kevin Earl has not exercised full civil rights nor engaged in any contractual
obligations. Neither can he nor petitioners on his behalf, be deemed to have any immoral, criminal or illicit purpose for seeking said cha(n)ge of name. It
stands to reason that there is no way that the state or any person may be so prejudiced by the action for change of Kevin Earls first name. In fact, to obviate
any possible doubts on the intent of petitioners, the prayer for change of name was caused to be published together with the petition for adoption.[16]

Art. 189 of the Family Code enumerates in no uncertain terms the legal effects of adoption:

(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising
from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;

(2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of
the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and

(3) The adopted shall remain an intestate heir of his parents and other blood relatives.

Clearly, the law allows the adoptee, as a matter of right and obligation, to bear the surname of the adopter, upon issuance of the decree of adoption. It is the
change of the adoptees surname to follow that of the adopter which is the natural and necessary consequence of a grant of adoption and must specifically
be contained in the order of the court, in fact, even if not prayed for by petitioner.

However, the given or proper name, also known as the first or Christian name, of the adoptee must remain as it was originally registered in the civil register.
The creation of an adoptive relationship does not confer upon the adopter a license to change the adoptees registered Christian or first name. The automatic
change thereof, premised solely upon the adoption thus granted, is beyond the purview of a decree of adoption. Neither is it a mere incident in nor an
adjunct of an adoption proceeding, such that a prayer therefor furtively inserted in a petition for adoption, as in this case, cannot properly be granted.

The name of the adoptee as recorded in the civil register should be used in the adoption proceedings in order to vest the court with jurisdiction to hear and
determine the same,[17] and shall continue to be so used until the court orders otherwise. Changing the given or proper name of a person as recorded in the
civil register is a substantial change in ones official or legal name and cannot be authorized without a judicial order. The purpose of the statutory procedure
authorizing a change of name is simply to have, wherever possible, a record of the change, and in keeping with the object of the statute, a court to which the
application is made should normally make its decree recording such change)[18]

The official name of a person whose birth is registered in the civil register is the name appearing therein, If a change in ones name is desired, this can only
be done by filing and strictly complying with the substantive and procedural requirements for a special proceeding for change of name under Rule 103 of the
Rules of Court, wherein the sufficiency of the reasons or grounds therefor can be threshed out and accordingly determined.

Under Rule 103, a petition for change of name shall be filed in the regional trial court of the province where the person desiring to change his name resides.
It shall be signed and verified by the person desiring his name to be changed or by some other person in his behalf and shall state that the petitioner has
been a bona fide resident of the province where the petition is filed for at least three years prior to such filing, the cause for which the change of name is
sought, and the name asked for. An order for the date and place of hearing shall be made and published, with the Solicitor General or the proper provincial
or city prosecutor appearing for the Government at such hearing. It is only upon satisfactory proof of the veracity of the allegations in the petition and the
reasonableness of the causes for the change of name that the court may adjudge that the name be changed as prayed for in the petition, and shall furnish a
copy of said judgment to the civil registrar of the municipality concerned who shall forthwith enter the same in the civil register.

A petition for change of name being a proceeding in rem, strict compliance with all the requirements therefor is indispensable in order to vest the court with
jurisdiction for its adjudication.[19] It is an independent and discrete special proceeding, in and by itself, governed by its own set of rules. A fortiori, it cannot
be granted by means of any other proceeding. To consider it as a mere incident or an offshoot of another special proceeding would be to denigrate its role
and significance as the appropriate remedy available under our remedial law system.

The Solicitor General correctly points out the glaring defects of the subject petition insofar as it seeks the change of name of the adoptee,[20] all of which
taken together cannot but lead to the conclusion that there was no petition sufficient in form and substance for change of name as would rightfully deserve
an order therefor. It would be procedurally erroneous to employ a petition for adoption to effect a change of name in the absence of the corresponding
petition for the latter relief at law.

Neither can the allowance of the subject petition, by any stretch of imagination and liberality, be justified under the rule allowing permissive joinder of causes
of action. Moreover, the reliance by private respondents on the pronouncements in Briz vs. Briz, et al.[21] and Peyer vs. Martinez, et al.[22] is misplaced.

A restatement of the rule and jurisprudence on joinder of causes of action would, therefore, appear to be called for.

By a joinder of actions, or more properly, a joinder of causes of action, is meant the uniting of two or more demands or rights of action in one action, the
statement of more than one cause of action in a declaration.[23] It is the union of two or more civil causes of action, each of which could be made the basis
of a separate suit, in the same complaint, declaration or petition. A plaintiff may under certain circumstances join several distinct demands, controversies or
rights of action in one declaration, complaint or petition.[24]

As can easily be inferred from the above definitions, a party is generally not required to join in one suit several distinct causes of action. The joinder of
separate causes of action, where allowable, is permissive and not mandatory in the absence of a contrary statutory provision, even though the causes of
action arose from the same factual setting and might under applicable joinder rules be joined.[25] Modern statutes and rules governing joinders are intended
to avoid a multiplicity of suits and to promote the efficient administration of justice wherever this may be done without prejudice to the rights of the litigants.
To achieve these ends, they are liberally construed.[26]

While joinder of causes of action is largely left to the option of a party litigant, Section 5, Rule 2 of our present Rules allows causes of action to be joined in
one complaint conditioned upon the following requisites: (a) it will not violate the rules on jurisdiction, venue and joinder of parties; and (b) the causes of
action arise out of the same contract, transaction or relation between the parties, or are for demands for money or are of the same nature and character.

The objectives of the rule or provision are to avoid a multiplicity of suits where the same parties and subject matter are to be dealt with by effecting in one
action a complete determination of all matters in controversy and litigation between the parties involving one subject matter, and to expedite the disposition
of litigation at minimum cost. The provision should be construed so as to avoid such multiplicity, where possible, without prejudice to the rights of the
litigants. Being of a remedial nature, the provision should be liberally construed, to the end that related controversies between the same parties may be
adjudicated at one time; and it should be made effectual as far as practicable,[27] with the end in view of promoting the efficient administration of justice.[28]

The statutory intent behind the provisions on joinder of causes of action is to encourage joinder of actions which could reasonably be said to involve kindred
rights and wrongs, although the courts have not succeeded in giving a standard definition of the terms used or in developing a rule of universal application.
The dominant idea is to permit joinder of causes of action, legal or equitable, where there is some substantial unity between them.[29] While the rule allows
a plaintiff to join as many separate claims as he may have, there should nevertheless be some unity in the problem presented and a common question of
law and fact involved, subject always to the restriction thereon regarding jurisdiction, venue and joinder of parties. Unlimited joinder is not authorized.[30]

Our rule on permissive joinder of causes of action, with the proviso subjecting it to the correlative rules on jurisdiction, venue and joinder of parties[31] and
requiring a conceptual unity in the problems presented. effectively disallows unlimited joinder.[32]

Turning now to the present petition, while it is true that there is no express prohibition against the joinder of a petition for adoption and for change of name,
we do not believe that there is any relation between these two petitions, nor are they of the same nature or character, much less do they present any
common question of fact or law, which conjointly would warrant their joinder. In short, these petitions do not rightly meet the underlying test of conceptual
unity demanded to sanction their joinder under our Rules.

As keenly observed and correctly pointed out by the Solicitor General

A petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different from each other. Each
action is individually governed by particular sets of laws and rules. These two proceedings involve disparate issues. In a petition for adoption, the court is
called upon to evaluate the proposed adopters fitness and qualifications to bring up and educate the adoptee properly (Prasnick vs. Republic, 99 Phil. 665).
On the other hand, in a petition for change of name, no family relations are created or affected for what is looked into is the propriety and reasonableness of
the grounds supporting the proposed change of name (Yu vs. Republic, 17 SCRA 253).

xxx xxx xxx

x x x Hence, the individual merits of each issue must be separately assessed and determined for neither action is dependent on the other.[33]

The rule on permissive joinder of causes of action is clear. Joinder may be allowed only if the actions show a commonality of relationship and conform to the
rules on jurisdiction, venue and joinder of parties (Section 5, Rule 2, Rules of Court).

These conditions are wanting in the instant case. As already pointed out in our Petition (pp. 9-10), an action for adoption and an action for change of name
are, in nature and purpose, not related to each other and do not arise out of the same relation between the parties. While what is cogent in an adoption
proceeding is the proposed adopters fitness and qualifications to adopt, a petition for change of first name may only prosper upon proof of reasonable and
compelling grounds supporting the change requested. Fitness to adopt is not determinative of the sufficiency of reasons justifying a change of name. And
similarly, a change of first name cannot be justified in view of a finding that the proposed adopter was found fit to adopt. There is just no way that the two
actions can connect and find a common ground, thus the joinder would be improper.

In contending that adoption and change of name may be similarly sought in one petition, private respondents rely upon Peyer vs. Martinez and Briz vs. Briz
(p. 4, Comment).

We however submit that these citations are non sequitur. In both cases, the fact of intimacy and relatedness of the issues is so pronounced. In Peyer, an
application to pronounce the husband an absentee is obviously intertwined with the action to transfer the management of conjugal assets to the wife. In Briz,
an action for declaration of heirship was deemed a clear condition precedent to an action to recover the land subject of partition and distribution proceeding.
However, the commonality of relationship which stands out in both cases does not characterize the present action for adoption and change of name. Thus
the rulings in Peyer and Briz find no place in the case at bar.

Besides, it is interesting to note that although a joinder of the two actions was, in Briz, declared feasible, the Supreme Court did not indorse an automatic
joinder and instead remanded the matter for further proceedings, granting leave to amend the pleadings and implead additional parties-defendants for a
complete determination of the controversy (Briz vs. Briz, 43 Phil. 763, 770). Such cautionary stance all the more emphasizes that although joinders are
generally accepted, they are not allowed where the conditions are not satisfactorily met.[34]

It furthermore cannot be said that the proposed joinder in this instance will make for a complete determination of all matters pertaining to the coetaneous
grant of adoption and change of name of the adoptee in one petition. As already stated, the subject petition was grossly insufficient in form and substance
with respect to the prayer for change of name of the adoptee. The policy of avoiding multiplicity of suits which underscores the rule on permissive joinder of
causes of action is addressed to suits that are intimately related and also present interwoven and dependent issues which can be most expeditiously and
comprehensively settled by having just one judicial proceeding, but not to suits or actions whose subject matters or corresponding reliefs are unrelated or
diverse such that they are best taken up individually.

In Nabus vs. Court of Appeals, et al. ,[35] the Court clarified the rule on permissive joinder of causes of action:

The rule is clearly permissive. It does not constitute an obligatory rule, as there is no positive provision of law or any rule of jurisprudence which compels a
party to join all his causes of action and bring them at one and the same time. Under the present rules, the provision is still that the plaintiff may, and not that
he must, unite several causes of action although they may be included in one of the classes specified. This, therefore, leaves it to the plaintiffs option
whether the causes of action shall be joined in the same action, and no unfavorable inference may be drawn from his failure or refusal to do so. He may
always file another action based on the remaining cause or causes of action within the prescriptive period therefor. (Italics supplied.)

The situation presented in this case does not warrant exception from the Rules under the policy of liberal construction thereof in general, and for change of
name in particular, as proposed by private respondents and adopted by respondent judge. Liberal construction of the Rules may be invoked in situations
wherein there may be some excusable formal deficiency or error in a pleading, provided that the same does not subvert the essence of the proceeding and
connotes at least a reasonable attempt at compliance with the Rules. Utter disregard of the Rules cannot justly be rationalized by harking on the policy of
liberal construction.

The Court is not impervious to the frustration that litigants and lawyers alike would at times encounter in procedural bureaucracy but imperative justice
requires correct observance of indispensable technicalities precisely designed to ensure its proper dispensation.[36] It has long been recognized that strict
compliance with the Rules of Court is indispensable for the prevention of needless delays and for the orderly and expeditious dispatch of judicial business.
[37]

Procedural rules are not to be disdained as mere technicalities that may be ignored at will to suit the convenience of a party. Adjective law is important in
ensuring the effective enforcement of substantive rights through the orderly and speedy administration of justice. These rules are not intended to hamper
litigants or complicate litigation but, indeed to provide for a system under which a suitor may be heard in the correct form and manner and at the prescribed
time in a peaceful confrontation before a judge whose authority they acknowledge.[38]

It cannot be overemphasized that procedural rules have their own wholesome rationale in the orderly administration of justice. Justice has to be
administered according to the Rules in order to obviate arbitrariness, caprice, or whimsicality.[39] We have been cautioned and reminded in Limpot vs. CA,
et al. that:[40]

Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial
proceedings. It is a mistake to propose that substantive law and adjective law are contradictory to each other or, as has often been suggested, that
enforcement of procedural rules should never be permitted if it will result in prejudice to the substantive rights of the litigants. This is not exactly true; the
concept is much misunderstood. As a matter of fact, the policy of the courts is to give both kinds of law, as complementing each other, in the just and speedy
resolution of the dispute between the parties. Observance of both substantive rights is equally guaranteed by due process, whatever the source of such
rights, be it the Constitution itself or only a statute or a rule of court.

xxx xxx xxx

x x (T)hey are required to be followed except only when for the most persuasive of reasons they may be relaxed to relieve a litigant of an injustice not
commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. x x x. While it is true that a litigation is not a game of
technicalities, this does not mean that the Rules of Court may be ignored at will and at random to the prejudice of the orderly presentation and assessment
of the issues and their just resolution. Justice eschews anarchy.

Only exceptionally in very extreme circumstances, when a rule deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy
such that rigid application thereof frustrates rather than promotes substantial justice, will technicalities deserve scant consideration from the court. In such
situations, the courts are empowered, even obligated, to suspend the operation of the rules.[41]

We do not perceive any injustice that can possibly be visited upon private respondents by following the reglementary procedure for the change in the proper
or given name that they seek for their adopted child. We are hard put to descry the indispensability of a change of the first name of the adoptee to his
welfare and benefit. Nor is the said change of such urgency that would justify an exemption from or a relaxation of the Rules. It is the State that stands to be
prejudiced by a wanton disregard of Rule 103 in this case, considering its natural interest in the methodical administration of justice and in the efficacious
maintenance of a system of identification of its citizens.

The danger wrought by non-observance, of the Rules is that the violation of or failure to comply with the procedure prescribed by law prevents the proper
determination of the questions raised by the parties with respect to the merits of the case and makes it necessary to decide, in the first place, such questions
as relate to the form of the action. The rules and procedure laid down for the trial court and the adjudication of cases are matters of public policy.[42] They
are matters of public order and interest which can in no wise be changed or regulated by agreements between or stipulations by parties to an action for their
singular convenience.[43]

In Garcia vs. Republic,[44] we are reminded of the definiteness in the application of the Rules and the importance of seeking relief under the appropriate
proceeding:

x x x The procedure set by law should be delimited. One should not confuse or misapply one procedure for another lest we create confusion in the
application of the proper remedy.

Respondent judges unmindful disregard of procedural tenets aimed at achieving stability of procedure is to be deplored. He exceeded his prerogatives by
granting the prayer for change of name, his order being unsupported by both statutory and case law. The novel but unwarranted manner in which he
adjudicated this case may be characterized as a regrettable abdication of the duty to uphold the teachings of remedial law and jurisprudence.

II. Petitioner avers that it was error for the lower court to grant the petition for change of name without citing or proving any lawful ground. Indeed, the only
justification advanced for the change of name was the fact of the adoptees baptism under the name Aaron Joseph and by which he has been known since
he came to live with private respondents.[45]

Private respondents, through a rather stilted ratiocination, assert that upon the grant of adoption, the subject minor adoptee ipso facto assumed a new
identification and designation, that is, Aaron Joseph which was the name given to him during the baptismal rites. Allowing the change of his first name as
prayed for in the petition, so they claim, merely confirms the designation by which he is known and called in the community in which he lives. This largely
echoes the opinion of the lower court that naming the child Aaron Joseph was symbolic of naming him at birth, and that they, as adoptive parents, have as
much right as the natural parents to freely select the first name of their adopted child.[46]

The lower court was sympathetic to herein private respondents and ruled on this point in this manner:

As adoptive parents, petitioner like other parents may freely select the first name given to his/her child as it is only the surname to which the child is entitled
that is fixed by law. x x x.

xxx xxx xxx

The given name of the minor was Kevin Earl, a name given for no other purpose than for identification purposes in a birth certificate by a woman who had all
intentions of giving him away. The naming of the minor as Aaron Joseph by petitioners upon the grant of their petition for adoption is symbolic of naming the
minor at birth.[47]

We cannot fathom any legal or jurisprudential basis for this attenuated ruling of respondent judge and must thus set it aside.

It is necessary to reiterate in this discussion that a persons name is a word or combination of words by which he is known and identified, and distinguished
from others, for the convenience of the world at large in addressing him, or in speaking of or dealing with him. It is both of personal as well as public interest
that every person must have a name. The name of an individual has two parts:

The given or proper name and the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to
distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to
child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.[48]

By Article 408 of the Civil Code, a persons birth must be entered in the civil register. The official name of a person is that given him in the civil register. That
is his name in the eyes of the law.[49] And once the name of a person is officially entered in the civil register, Article 376 of the same Code seals that identity
with its precise mandate: no person can change his name or surname without judicial authority. This statutory restriction is premised on the interest of the
State in names borne by individuals and entities for purposes of identification.[50]

By reason thereof, the only way that the name of person can be changed legally is through a petition for change of name under Rule 103 of the Rules of
Court.[51] For purposes of an application for change of name under Article 376 of the Civil Code and correlatively implemented by Rule 103, the only name
that may be changed is the true or official name recorded in the civil register. As earlier mentioned, a petition for change of name being a proceeding in rem,
impressed as it is with public interest, strict compliance with all the requisites therefor in order to vest the court with jurisdiction is essential, and failure
therein renders the proceedings a nullity.[52]

It must likewise be stressed once again that a change of name is a privilege, not a matter of right, addressed to the sound discretion of the court which has
the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown. Before a person can be
authorized to change his name, that is, his true or official name or that which appears in his birth certificate or is entered in the civil register, he must show
proper and reasonable cause or any convincing reason which may justify such change.[53]

Jurisprudence has recognized, inter alia, the following grounds as being sufficient to warrant a change of name: (a) when the name is ridiculous,
dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence of legitimation or adoption; (c) when the
change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage;
(e) when the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to
anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that
the change of name would prejudice public interest.[54]

Contrarily, a petition for change of name grounded on the fact that one was baptized by another name, under which he has been known and which he used,
has been denied inasmuch as the use of baptismal names is not sanctioned.[55] For, in truth, baptism is not a condition sine qua non to a change of name.
[56] Neither does the fact that the petitioner has been using a different name and has become known by it constitute proper and reasonable cause to legally
authorize a change of name.[57] A name given to a person in the church records or elsewhere or by which he is known in the community - when at variance
with that entered in the civil register - is unofficial and cannot be recognized as his real name.[58]

The instant petition does not sufficiently persuade us to depart from such rulings of long accepted wisdom and applicability. The only grounds offered to
justify the change of name prayed for was that the adopted child had been baptized as Aaron Joseph in keeping with the religious faith of private
respondents and that it was the name by which he had been called and known by his family, relatives and friends from the time he came to live with private
respondents.[59] Apart from suffusing their pleadings with sanctimonious entreaties for compassion, none of the justified grounds for a change of name has
been alleged or established by private respondents. The legal bases chosen by them to bolster their cause have long been struck down as unavailing for
their present purposes. For, to allow the adoptee herein to use his baptismal name, instead of his name registered in the civil register, would be to
countenance or permit that which has always been frowned upon.[60]

The earlier quoted posturing of respondent judge, as expressed in his assailed order that

(a)s adoptive parents, petitioners like other parents may freely select the first name given to his/her child as it is only the surname to which the child is
entitled that is fixed by law x x x.

The given name of the minor was Kevin Earl, a name given for no other purpose than for identification purposes in a birth certificate by a woman who had all
the intentions of giving him away. The naming of the minor as Aaron Joseph by petitioners upon grant of their petition for adoption is symbolic of naming the
minor at birth.
and supposedly based on the authority of Republic vs. Court of Appeals and Maximo Wong, supra, painfully misapplies the ruling therein enunciated.

The factual backdrop of said case is not at all analogous to that of the case at bar. In the Wong case, therein petitioner Maximo Wong sought the change of
his surname which he acquired by virtue of the decree of adoption granted in favor of spouses Hoong Wong and Concepcion Ty Wong. Upon reaching the
age of majority, he filed a petition in court to change his surname from Wong to Alcala, which was his surname prior to the adoption. He adduced proof that
the use of the surname Wong caused him embarrassment and isolation from friends and relatives in view of a suggested Chinese ancestry when in reality
he is a Muslim Filipino residing in a Muslim community, thereby hampering his business and social life, and that his surviving adoptive mother consented to
the change of name sought. This Court granted the petition and regarded the change of the surname as a mere incident in, rather than the object of, the
adoption.

It should be noted that in said case the change of surname, not the given name, and the legal consequences thereof in view of the adoption were at issue.
That it was sought in a petition duly and precisely filed for that purpose with ample proof of the lawful grounds therefor only serves to reinforce the imperative
necessity of seeking relief under and through the legally prescribed procedures.

Here, the Solicitor General meritoriously explained that:

Respondent Judge failed to distinguish between a situation wherein a child is being named for the first time by his natural parent, as against one wherein, a
child is previously conferred a first name by his natural parent, and such name is subsequently sought to be disregarded and changed by the adoptive
parents. In the first case, there is no dispute that natural parents have the right to freely select and give the childs first name for every person, including
juridical persons, must have a name (Tolentino, A., Commentaries and Jurisprudence on the Civil Code, Vol. 1, 1987 edition, page 721). In the second case,
however, as in the case at bar, private respondents, in their capacities as adopters, cannot claim a right to name the minor adoptee after such right to name
the child had already been exercised by the natural parent. Adopting parents have not been conferred such right by law, hence, the right asserted by private
respondents herein remains but illusory. Renaming the adoptee cannot be claimed as a right. It is merely a privilege necessitating judicial consent upon
compelling grounds. [61]

The liberality with which this Court treats matters leading up to adoption insofar as it carries out the beneficent purposes of adoption and ensures to the
adopted child the rights and privileges arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted
child,[62] should be understood in its proper context. It should not be misconstrued or misinterpreted to extend to inferences beyond the contemplation of
law and jurisprudence.

The practically unrestricted freedom of the natural parent to select the proper or given name of the child presupposes that no other name for it has
theretofore been entered in the civil register. Once such name is registered, regardless of the reasons for such choice and even if it be solely for the purpose
of identification, the same constitutes the official name. This effectively authenticates the identity of the person and must remain unaltered save when, for the
most compelling reasons shown in an appropriate proceeding, its change may merit judicial approval.

While the right of a natural parent to name the child is recognized, guaranteed and protected under the law, the so-called right of an adoptive parent to re-
name an adopted child by virtue or as a consequence of adoption, even for the most noble intentions and moving supplications, is unheard of in law and
consequently cannot be favorably considered. To repeat, the change of the surname of the adoptee as a result of the adoption and to follow that of the
adopter does not lawfully extend to or include the proper or given name. Furthermore, factual realities and legal consequences, rather than sentimentality
and symbolisms, are what are of concern to the Court.

Finally, it is understood that this decision does not entirely foreclose and is without prejudice to, private respondents privilege to legally change the proper or
given name of their adopted child, provided that the same is exercised, this time, via a proper petition for change of name. Of course, the grant thereof is
conditioned on strict compliance with all jurisdictional requirements and satisfactory proof of the compelling reasons advanced therefor.

WHEREFORE, on the foregoing premises, the assailed order of respondent judge is hereby MODIFIED. The legally adopted child of private respondents
shall henceforth be officially known as Kevin Earl Munson y Andrade unless a change thereof is hereafter effected in accordance with law. In all other
respects, the order is AFFIRMED.

SO ORDERED.
THIRD DIVISION
[G.R. No. 148311. March 31, 2005]
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.

DECISION

SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the
instant case.

The facts are undisputed.

On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition[1] to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He
alleged therein, among others, that Stephanie was born on June 26, 1994;[2] that her mother is Gemma Astorga Garcia; that Stephanie has been using her
mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga
be changed to Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his surname.

On March 23, 2001,[3] the trial court rendered the assailed Decision granting the adoption, thus:

After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the
petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to
maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie
Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough
compliance with the requirement of Article 35 of Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all
obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and
legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court.

Let copy of this Decision be furnished the National Statistics Office for record purposes.

SO ORDERED.[4]

On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration[5] praying that Stephanie should be allowed to use the surname of her
natural mother (GARCIA) as her middle name.

On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use
the surname of his biological mother as his middle name.

Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is
subsequently adopted by her natural father.

Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an
adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the
surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child,
hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the
stigma of her illegitimacy; and; (6) her continued use of Garcia as her middle name is not opposed by either the Catindig or Garcia families.

The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the
surname of her natural mother for the following reasons:

First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be
an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural
mother should be maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it
allows.

Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil
Code and Family Code. In fact, the Family Law Committees agreed that the initial or surname of the mother should immediately precede the surname of the
father so that the second name, if any, will be before the surname of the mother.[7]

We find merit in the petition.

Use Of Surname Is Fixed By Law

For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known.
It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he
bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.[8] It is both of personal as well as public interest that
every person must have a name.

The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given
to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he
belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is
entitled is fixed by law.[9]

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname[10] of an individual whatever may be his status
in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus:

Art. 364. Legitimate and legitimated children shall principally use the surname of the father.

Art. 365. An adopted child shall bear the surname of the adopter.

xxx

Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs.

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse,
she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and
other direct male descendants shall either:

(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.

xxx

Law Is Silent As To The Use Of Middle Name

As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176[11] of the Family Code, as amended by
Republic Act No. 9255, otherwise known as An Act Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to what middle name a
child may use.

The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between
ascendants and descendants, in which case, the middle name or the mothers surname shall be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that an adopted child shall bear
the surname of the adopter. Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations
arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;

xxx

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the
Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law
Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus

Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname
indicates the family to which he belongs, for which reason he would insist on the use of the fathers surname by the child but that, if he wants to, the child
may also use the surname of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to
him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother.

Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the
following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose
Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but
he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on
Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the
appropriate chapter.

xxx

Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because
there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the
Chinese wherein they even include the Clan name.

xxx

Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is
really the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied)

In the case of an adopted child, the law provides that the adopted shall bear the surname of the adopters.[13] Again, it is silent whether he can use a middle
name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree
of adoption.[14]

The Underlying Intent of Adoption Is In Favor of the Adopted Child

Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.[15]
It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.
[16] The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the
child with a legitimate status.[17] This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child
initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared
to favor the adopted child.[18] Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the
adopted.[20]

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189[21] of
the Family Code and Section 17[22] Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of
the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother
should immediately precede the surname of the father.

Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal
lineage. It is to be noted that Article 189(3) of the Family Code and Section 18[24], Article V of RA 8552 (law on adoption) provide that the adoptee remains
an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag,
Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them Mama and Papa. Indeed, they
are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving
relationship with her mother but will also eliminate the stigma of her illegitimacy.

Liberal Construction of Adoption Statutes In Favor Of Adoption

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.[25] The
interests and welfare of the adopted child are of primary and paramount consideration,[26] hence, every reasonable intendment should be sustained to
promote and fulfill these noble and compassionate objectives of the law.[27]

Lastly, Art. 10 of the New Civil Code provides that:

In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure.
It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law.[28]

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we
find no reason why she should not be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers
surname GARCIA as her middle name.

Let the corresponding entry of her correct and complete name be entered in the decree of adoption.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

THIRD DIVISION
[G.R. No. 132223. June 19, 2001]
BONIFACIA P. VANCIL, petitioner, vs. HELEN G. BELMES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No. 45650, In the Matter of Guardianship of Minors Valerie Vancil and
Vincent Vancil Bonifacia P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant, promulgated on July 29, 1997, and its Resolution dated
December 18, 1997 denying the motion for reconsideration of the said Decision.

The facts of the case as summarized by the Court of Appeals in its Decision are:

Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December
22, 1986. During his lifetime, Reeder had two (2) children named Valerie and Vincent by his common-law wife, Helen G. Belmes.

Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of Cebu City a guardianship proceedings over the persons and
properties of minors Valerie and Vincent docketed as Special Proceedings No. 1618-CEB. At the time, Valerie was only 6 years old while Vincent was a 2-
year old child. It is claimed in the petition that the minors are residents of Cebu City, Philippines and have an estate consisting of proceeds from their fathers
death pension benefits with a probable value of P100,000.00.

Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutive-weekly publications with the Sunstar Daily.

On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr.

On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition to the subject guardianship proceedings asseverating that she
had already filed a similar petition for guardianship under Special Proceedings No. 2819 before the Regional Trial Court of Pagadian City.

Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for the Removal of Guardian and Appointment of a New One, asserting
that she is the natural mother in actual custody of and exercising parental authority over the subject minors at Maralag, Dumingag, Zamboanga del Sur
where they are permanently residing; that the petition was filed under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a
resident of 140 Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized American citizen.

On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes motion to remove and/or to disqualify Bonifacia as guardian of
Valerie and Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and perform her duties as such guardian upon the posting of a bond
of P50,000.00. The subsequent attempt for a reconsideration was likewise dismissed in an Order dated November 24, 1988.[1]

On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of October 12, 1988 and dismissing Special Proceedings No. 1618-
CEB.

The Court of Appeals held:

Stress should likewise be made that our Civil Code considers parents, the father, or in the absence, the mother, as natural guardian of her minor children.
The law on parental authority under the Civil Code or P.D. 603 and now the New Family Code, (Article 225 of the Family Code) ascribe to the same legal
pronouncements. Section 7 of Rule 93 of the Revised Rules of Court confirms the designation of the parents as ipso facto guardian of their minor children
without need of a court appointment and only for good reason may another person be named. Ironically, for the petitioner, there is nothing on record of any
reason at all why Helen Belmes, the biological mother, should be deprived of her legal rights as natural guardian of her minor children. To give away such
privilege from Helen would be an abdication and grave violation of the very basic fundamental tenets in civil law and the constitution on family solidarity.[2]

On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the following legal points:

1. The Court of Appeals gravely erred in ruling that the preferential right of a parent to be appointed guardian over the persons and estate of the minors is
absolute, contrary to existing jurisprudence.

2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes, the biological mother, should be appointed the guardian of the minors
despite the undisputed proof that under her custody, her daughter minor Valerie Vancil was raped seven times by Oppositors live-in partner.

3. The respondent (sic) Court of Appeals gravely erred when it disqualified petitioner Bonifacia P. Vancil to be appointed as judicial guardian over the
persons and estate of subject minors despite the fact that she has all the qualifications and none of the disqualifications as judicial guardian, merely on the
basis of her U.S. citizenship which is clearly not a statutory requirement to become guardian.

At the outset, let it be stressed that in her Manifestation/Motion, dated September 15, 1998, respondent Helen Belmes stated that her daughter Valerie
turned eighteen on September 2, 1998 as shown by her Birth Certificate.[3] Respondent thus prayed that this case be dismissed with respect to Valerie, she
being no longer a proper subject of guardianship proceedings. The said Manifestation/Motion was noted by this Court in its Resolution dated November 11,
1998.

Considering that Valerie is already of major age, this petition has become moot with respect to her. Thus, only the first and third legal points raised by
petitioner should be resolved.

The basic issue for our resolution is who between the mother and grandmother of minor Vincent should be his guardian.

We agree with the ruling of the Court of Appeals that respondent, being the natural mother of the minor, has the preferential right over that of petitioner to be
his guardian. This ruling finds support in Article 211 of the Family Code which provides:

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the fathers
decision shall prevail, unless there is a judicial order to the contrary. xxx.

Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural and legal right to his custody. In Sagala-Eslao vs. Court of
Appeals,[4] this Court held:

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.

Petitioner contends that she is more qualified as guardian of Vincent.

Petitioners claim to be the guardian of said minor can only be realized by way of substitute parental authority pursuant to Article 214 of the Family Code,
thus:

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. xxx.

In Santos, Sr. vs. Court of Appeals,[5] this Court ruled:

The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the
parent present shall continue exercising parental authority. Only in case of the parents death, absence or unsuitability may substitute parental authority be
exercised by the surviving grandparent.

Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of respondent. Considering
that respondent is very much alive and has exercised continuously parental authority over Vincent, petitioner has to prove, in asserting her right to be the
minors guardian, respondents unsuitability. Petitioner, however, has not proffered convincing evidence showing that respondent is not suited to be the
guardian of Vincent. Petitioner merely insists that respondent is morally unfit as guardian of Valerie considering that her (respondents) live-in partner raped
Valerie several times. But Valerie, being now of major age, is no longer a subject of this guardianship proceeding.

Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot qualify as a substitute guardian. It bears stressing that she is an
American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in
her petition, she admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to
someone else who may not also qualify as a guardian.

Moreover, we observe that respondents allegation that petitioner has not set foot in the Philippines since 1987 has not been controverted by her. Besides,
petitioners old age and her conviction of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal Case No. CBU-16884[6] filed by one Danilo R.
Deen, will give her a second thought of staying here. Indeed, her coming back to this country just to fulfill the duties of a guardian to Vincent for only two
years is not certain.

Significantly, this Court has held that courts should not appoint persons as guardians who are not within the jurisdiction of our courts for they will find it
difficult to protect the wards. In Guerrero vs. Teran,[7] this Court held:

Doa Maria Muoz y Gomez was, as above indicated, removed upon the theory that her appointment was void because she did not reside in the Philippine
Islands. There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that
there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of
the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their
jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and
guardians who are not personally subject to the jurisdiction of our courts here.

WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the sense that Valerie, who has attained the age of majority, will no longer
be under the guardianship of respondent Helen Belmes.

Costs against petitioner.

SO ORDERED.
FIRST DIVISION
[G.R. No. 140817. December 7, 2001]
SABRINA ARTADI BONDAGJY, petitioner, vs. FOUZI ALI BONDAGJY, JUDGE BENSAUDI I. ARABANI, SR., in his capacity as presiding judge of the
3rd Sharia District Court, Sharia Judicial District, Zamboanga City, respondents.

DECISION

PARDO, J.:

Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to Catholicism upon their separation, still bound by the
moral laws of Islam in the determination of her fitness to be the custodian of her children?

We apply civil law in the best interest of the children.

The Facts

Respondent Fouzi (then 31 years of age) and Sabrina (then 20 years of age) were married on February 3, 1988, at the Manila Hotel, Ermita, Manila under
Islamic rites.[1] On October 21, 1987, or four (4) months before her marriage, Sabrina became a Muslim by conversion. However, the conversion was not
registered with the Code of Muslim Personal Laws of the Philippines.

Out of their union, they begot two (2) children, namely, Abdulaziz, born on June 13, 1989,[2] and Amouaje, born on September 29, 1990.[3] The children
were born in Jeddah, Saudi Arabia.

At the time of their marriage, unknown to petitioner, respondent was still married to a Saudi Arabian woman whom he later divorced.

After their marriage, the couple moved in with respondents family in Makati City. In 1990, the parties migrated and settled in Jeddah, Saudi Arabia where
they lived for more than two years.

Sometime in December 1995, the children lived in the house of Sabrinas mother in 145 Tanguile Street, Ayala Alabang. Fouzi alleged that he could not see
his children until he got an order from the court. Even with a court order, he could only see his children in school at De La Salle-Zobel, Alabang, Muntinlupa
City.

On December 15, 1996, Sabrina had the children baptized as Christians[4] and their names changed from Abdulaziz Bondagjy to Azziz Santiago Artadi and
from Amouaje Bondagjy to Amouage Selina Artadi.

Respondent alleged that on various occasions Sabrina was seen with different men at odd hours in Manila,[5] and that she would wear short skirts,
sleeveless blouses, and bathing suits.[6] Such clothing are detestable under Islamic law on customs.

Fouzi claimed that Sabrina let their children sweep their neighbors house for a fee of P40.00 after the children come home from school. Whenever Fouzi
sees them in school,[7] the children would be happy to see him but they were afraid to ride in his car. Instead, they would ride the jeepney in going home
from school.

The Case

On March 11, 1996, respondent Fouzy Ali Bondagjy filed with the Sharia District Court, Marawi City, an action[8] to obtain custody of his two minor children,
Abdulaziz, 10 and Amouaje, 9.

On June 6, 1996, petitioner filed her answer with motion to dismiss on the ground of lack of jurisdiction over the persons of the parties since both parties
were residents of Manila and for lack of cause of action. Petitioner likewise moved to transfer the venue to Zamboanga, which was more accessible by
plane.

On June 18, 1996, the Sharia District Court granted petitioners motion to transfer the venue to Zamboanga.[9]

On June 27, 1996, respondent filed a reply[10] and motion for a temporary restraining order against petitioner.[11] He moved that petitioner desist from
preventing him from exercising parental authority over his minor children.

On July 12, 1996, the court granted the motion and issued a writ of preliminary injunction.[12]

On August 12, 1996, the court ordered the parties to submit their memoranda on the issue of jurisdiction.

On October 30, 1996, the court granted petitioners motion to withdraw motion to dismiss on the issue of jurisdiction and set the proceedings for pre-trial
conference on November 14, 1996.

On November 14, 1996, respondent filed a motion to drop Joyce Artadi as defendant in the case and the trial court issued an order:

During the pre-trial conference held this morning, the parties made their respective offer and counter proposals for amicable settlement. The plaintiff
proposed (1) solidarity of the family, and (2) alternate custody. The defendant advanced the proposal of reasonable visitation of the father at their residence,
for which the court will possibly fix the period or time and schedule of visitations.

With these proposals, both parties agreed to continue the pre-trial conference on December 9, 1996.

WHEREFORE, let the pre-trial conference be again held on December 9, 1996, at 9:00 oclock in the morning.[13]

Meantime, petitioner filed with the Regional Trial Court, Branch 256, Muntinlupa City[14] an action for nullity of marriage, custody and support, ordered the
parties to maintain status quo until further orders from said court.[15]

On March 2, 1999, petitioner filed another motion to dismiss[16] on the ground of lack of jurisdiction over the subject matter of the case since P.D. No. 1083
is applicable only to Muslims. On March 3, 1999, Fouzi filed an opposition to the motion to dismiss and argued that at the inception of the case, both parties
were Muslims, Fouzi by birth and Sabrina by conversion.

On March 29, 1999, the court denied the motion to dismiss since P.D. No. 1083 had jurisdiction over all cases of Muslims involving custody.[17]

On April 23, 1999, Sabrina filed a motion to reconsider the order of March 29, 1999 denying the motion to dismiss.[18]

On June 22, 1999, the court denied petitioners motion for reconsideration. Thus-

WHEREFORE, in view of the foregoing reasons, the motion for reconsideration of the defendant-movant is hereby ordered DENIED; Defendant is further
ordered to comply with the order of this Court dated July 12, 1996, to allow plaintiff to exercise his right of parental authority over their minor children with
that of the defendant in accordance with article 71, of P.D. 1083, the Code of Muslim Personal Laws.

Let the continuation of this case be set on July 15, 1999 at 8:30 in the morning.[19]

On July 15, 1999, the trial court decided to move forward to the next stage of the case and allowed respondent Fouzi to present evidence ex-parte.
On August 18, 1999, the court issued an order[20] giving respondent fifteen (15) days to submit his formal offer of evidence and fifteen (15) days from
receipt of transcript of stenographic notes to submit memorandum.

The Sharia District Courts Decision

On November 16, 1999, the Sharia Court rendered a decision, the dispositive portion of which reads:

WHEREFORE, foregoing considered, judgment is hereby rendered:

(a) Awarding the custody of the minors Abdulaziz Artadi Bondagjy and Amouaje Artadi Bondagjy in favor of their natural father, petitioner Fouzi Ali Bondagjy;
and for this purpose ordering the respondent Sabrina Artadi Bodagjy or any person having the care of said minors in her stead or behalf, to turn over,
relinguish and surrender the custody of said minors to their natural father, the petitioner in this case Fouzi Ali Bondagjy;

(b) Ordering the petitioner Fouzi Ali Bondagjy to ensure that the said minors are provided with reasonable support according to his means and in keeping
with the standard of his family, and, a suitable home conducive to their physical,

(c) mental and moral development; and, with his knowledge and under reasonable circumstances allow the respondent and natural mother of the said
minors Mrs. Sabrina Artadi Bondagjy to visit her minor children Abdulaziz Artadi Bondagjy and Amouje Artadi Bondagjy.[21]

Hence, this petition.[22]

The Courts Ruling

The Sharia District Court held that P.D. No. 1083 on Custody and Guardianship does not apply to this case because the spouses were not yet divorced.

However, the Sharia District Court found petitioner unworthy to care for her children. Thus -

A married woman, and a mother to growing children, should live a life that the community in which she lives considers morally upright, and in a manner that
her growing minor children will not be socially and morally affected and prejudiced. It is sad to note that respondent has failed to observe that which is
expected of a married woman and a mother by the society in which she lives. xxx The evidence of this case shows the extent of the moral depravity of the
respondent, and the kind of concern for the welfare of her minor children which on the basis thereof this Court finds respondent unfit with the custody of her
minor children.

xxx Under the general principles of Muslim law, the Muslim mother may be legally disentitled to the custody of her minor children by reason of wickedness
when such wickedness is injurious to the mind of the child, such as when she engages in zina (illicit sexual relation); or when she is unworthy as a mother;
and, a woman is not worthy to be trusted with the custody of the child who is continually going out and leaving the child hungry. (A. Baillie, Muhammadan
Law, p. 435; citing Dar-ul-Muktar, p. 280).[23]

On the other hand, the Sharia Court found that respondent Fouzi was capable both personally and financially to look after the best interest of his minor
children.[24]

When he was asked during the direct examination the question that, if ever this Honorable Court will grant you custody of your children will you be able to
house and give support to your children? He answered, Of course, even up to now I am giving support to my children; And my comment is that the father
should give everything the needs of the family and now whatever the children needs even in school, considering the past, I have to love them, I have to care
for my children. In school, even when they see something they love and like, I buy it for them. Or sometime (sic) I send my staff and bring something for
them in their house. It is very hard, in school in front of other parents my son would still climb on my shoulder. I want to see them happy. I have pictures of
my children with me, taken only last week.[25]

As a rule, factual findings of the lower courts are final and binding upon the parties.[26] The Court is not expected or required to examine or contrast the oral
and documentary evidence submitted by the parties.[27] However, although this Court is not a trier of facts, it has the authority to review or reverse the
factual findings of the lower courts if we find that these do not conform to the evidence on record.[28]

In Reyes vs. Court of Appeals,[29] the Court held that the exceptions to the rule that factual findings of the trial court are final and conclusive and may not be
reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of
discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the
trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion, and (10) when
the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

Fitness as a Mother

The burden is upon respondent to prove that petitioner is not worthy to have custody of her children. We find that the evidence presented by the respondent
was not sufficient to establish her unfitness according to Muslim law or the Family Code.

In Pilipinas Shell Corp. vs. Court of Appeals (April 20, 2001, G.R. No. 114923), we said that in the hierarchy of evidentiary values, proof beyond reasonable
doubt is at the highest level, followed by clear and convincing evidence, preponderance of evidence and substantial evidence, in that order.[30]

The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in
deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a
Muslim.

Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children,[31] and the ability
to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral
situations of the parents.

The record shows that petitioner is equally financially capable of providing for all the needs of her children. The children went to school at De La Salle Zobel
School, Muntinlupa City with their tuition paid by petitioner according to the schools certification.[32]

Parental Authority and Custody

The welfare of the minors is the controlling consideration on the issue.[33]

In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into account all relevant considerations.[34]

Article 211 of the Family Code provides that the father and mother shall jointly exercise parental authority over the persons of their common children.

Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and mother shall jointly exercise just and reasonable
parental authority and fulfill their responsibility over their legitimate children.

In Sagala-Eslao v. Court of Appeals,[35] we stated:

xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical preservation and
development, as well as the cultivation of their intellect and the education of their heart and senses.[36] 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.[37]

xxx

The father and mother, being the natural guardians of unemancipated children, are dutybound and entitled to keep them in their custody and company.[38]

We do not doubt the capacity and love of both parties for their children, such that they both want to have them in their custody.

Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot have custody because of their voluntary
separation, we take into consideration the circumstances that would lead us to believe which parent can better take care of the children. Although we see the
need for the children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the childrens needs. Respondent is
a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603, the custody of the minor children,
absent a compelling reason to the contrary, is given to the mother.[39]

However, the award of custody to the wife does not deprive the husband of parental authority. In the case of Silva v. Court of Appeals,[40] we said that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and
welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged
and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this
affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Thus, we grant visitorial rights to respondent as his Constitutionally protected natural and primary right.[41]

The Fallo

WHEREFORE, the petition is hereby GRANTED. The decision in Spl. Proc. No. 13-96 is hereby SET ASIDE. Petitioner SABRINA ARTADI BONDAGJY shall
have custody over minors Abdulaziz, and Amouaje Bondagjy, until the children reach majority age. Both spouses shall have joint responsibility over all
expenses of rearing the children.

The father, FOUZI ALI BONDAGJY, shall have visitorial rights at least once a week and may take the children out only with the written consent of the mother.

No costs.

SO ORDERED.

SECOND DIVISION
[G.R. No. 116773. January 16, 1997]
TERESITA SAGALA-ESLAO, petitioner, vs. COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.

DECISION

TORRES, JR., J.:

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 mothers concern for her childs custody is undying - such is a mothers 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-Eslao seeks the reversal of the Court of Appeals decision[2] dated March 25, 1994, which affirmed the trial courts
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 petitioners mother in Sta. Ana, Pampanga, while Angelica stayed with her parents at respondents house; on August
6, 1990, petitioners 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 mothers 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 orthodontist 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]Missda

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 Cordero-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 minors paternal grandmother, contending that the Court of Appeals erred:

IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID NOT ABANDON MINOR, ANGELICA ESLAO, TO THE CARE AND
CUSTODY OF THE PETITIONER TERESITA SAGALA-ESLAO.Missdaa

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.Sdaadsc

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 P900 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.Sdaadsc

Despite the foregoing, however, and petitioners genuine desire to remain with said child, that would qualify her to have custody of Angelica, the trial courts
disquisition, in consonance with the provision that the childs 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 -

x x x 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 of permanence.[9]

The petitioner herein is married to an Orthodontist who has a lucrative practice of 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 petitioners husband is willing to adopt the petitioners children. If the children will
be with their mother, the probability is that they will be afforded a bright future. Contrast this situation with the one prevailing in the respondents
[grandmothers] 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 respondents 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 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.

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
saw Angelica; that private respondent never visited Angelica on important occasions, such as her birthday, and neither did the former give her cards or gifts,
not even a single candy;[11] that while private respondent claims otherwise and that she visited Angelica "many times" an 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:

xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical preservation and
development, as well as the cultivation of their intellect and the education of their heart and senses.[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 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.[15] The right attached to
parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a childrens
home or an orphan institution.[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 childrens 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 state or decisions of the
courts, but derives from the nature of the parental 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 (Chairman), Romero, Puno, and Mendoza, JJ., concur.

FIRST DIVISION
[G.R. No. 111876. January 31, 1996]
JOHANNA SOMBONG, petitioner, vs. COURT OF APPEALS and MARIETTA NERI ALVIAR, LILIBETH NERI and all persons holding the subject child
ARABELA SOMBONG in their custody, respondents.
DECISION

HERMOSISIMA, JR., J.:

Every so often two women claim to be the legitimate parent of the same child. One or the other, whether for financial gain or for sheer cupidity, should be an
impostor. The court is consequently called upon to decide as to which of them should have the childs lawful custody. This is the very nature of this case. The
child herein had considerably grown through the years that this controversy had unbearably lagged. The wisdom of the ages should be of some help,
delicate as the case considerably is. The earliest recorded decision on the matter is extant in the Bible, I Kings 3. As it appears, King Solomon in all his glory
resolved the controversy posed by two women claiming the same child:

And the King said, Bring me a sword. And they brought a sword before the King.

And the King said, Divide the living child in two, and give half to the one, and half to the other.

Then spoke the woman whose the living child was unto the King, for her bowels yearned upon her son, and she said, O my Lord, give her the living child,
and in no wise slay it. But the other said, Let it be neither mine nor thine, but divide it.

Then the King answered and said, Give her the living child, and in no wise slay it: she is the mother thereof. (1 Kings, Chapter 3, Verses 25-27)

King Solomons wisdom, was inspired by God:

And all Israel heard of the judgment which the King had judged; and they feared the King: for they saw that the wisdom of God was in him, to do judgment.
(Ibid., Verse 28)

We do resolve the herein controversy inspired by Gods own beloved King.

The Petition for Review on Certiorari before us seeks the reversal of the decision1 of respondent Court of Appeals2 which had reversed the decision3 of the
Regional Trial Court4 which granted the Petition for Habeas Corpus filed by petitioner.

The following facts were developed by the evidence presented by the opposing parties:

Petitioner is the mother of Arabella O. Sombong who was born on April 23, 1987 in Signal Village, Taguig, Metro Manila.5 Some time in November, 1987,
Arabella, then only six months old, was brought to the Sir John Clinic, located at 121 First Avenue, Kalookan City, for relief of coughing fits and for treatment
of colds. Petitioner did not have enough money to pay the hospital bill in the amount of P300.00. Arabella could not be discharged, then, because of the
petitioners failure to pay the bill.

Petitioner surprisingly gave testimony to the effect that she allegedly paid the private respondents by installments in the total amount of P1,700.00, knowing
for a fact that the sum payable was only P300.00. Despite such alleged payments, the owners of the clinic, Dra. Carmen Ty and her husband, Mr. Vicente Ty,
allegedly refused to turn over Arabella to her. Petitioner claims that the reason for such a refusal was that she refused to go out on a date with Mr. Ty, who
had been courting her. This allegedly gave Dra. Ty a reason to be jealous of her, making it difficult for everyone all around.

On the other hand and in contrast to her foregoing allegations, petitioner testified that she visited Arabella at the clinic only after two years, i.e., in 1989. This
time, she did not go beyond berating the spouses Ty for their refusal to give Arabella to her. Three years thereafter, i.e., in 1992, petitioner again resurfaced
to lay claim to her child. Her pleas allegedly fell on deaf ears.

Consequently, on May 21, 1992, petitioner filed a petition with the Regional Trial Court of Quezon City for the issuance of a Writ of Habeas Corpus against
the spouses Ty. She alleged therein that Arabella was being unlawfully detained and imprisoned at No. 121, First Avenue, Grace Park, Kalookan City. The
petition was denied due course and summarily dismissed,6 without prejudice, on the ground of lack of jurisdiction, the alleged detention having been
perpetrated in Kalookan City.

Petitioner, thereafter, filed a criminal complaint7 with the Office of the City Prosecutor of Kalookan City against the spouses Ty. Dr. Ty, in her counter-affidavit,
admitted that petitioners child, Arabella, had for some time been in her custody. Arabella was discharged from the clinic in April, 1989, and was, in the
presence of her clinic staff, turned over to someone who was properly identified to be the childs guardian.

In the face of the refusal of the spouses Ty to turn over Arabella to her, she had sought the help of Barangay Captains Alfonso and Bautista of Kalookan City,
Mayor Asistio of the same city, and even Congresswoman Hortensia L. Starke of Negros Occidental. Their efforts to help availed her nothing.

On September 4, 1992, the Office of the City Prosecutor of Kalookan City, on the basis of petitioners complaint, filed an information8 against the spouses Ty
for Kidnapping and Illegal Detention of a Minor before the Regional Trial Court of Kalookan City.9 On September 16, 1992, an order for the arrest of the
spouses Ty was issued in the criminal case. Facing arrest, Dra. Ty disclosed the possibility that the child, Arabella, may be found at No. 23 Jesus Street, San
Francisco del Monte, Quezon City. The agents of the National Bureau of Investigation went to said address and there found a female child who answered to
the name of Cristina Grace Neri. Quite significantly, the evidence disclosed that the child, Cristina, had been living with respondent Marietta Neri Alviar since
1988. When she was just a baby, Cristina was abandoned by her parents at the Sir John Clinic. On April 18, 1988, Dr. Fe Mallonga, a dentist at the Sir John
Clinic and niece of both Dra. Ty and respondent Alviar, called the latter up to discuss the possibility of turning over to her care one of the several abandoned
babies at the said clinic. Respondent Alviar was told that this baby whose name was unknown had long been abandoned by her parents and appeared to be
very small, very thin, and full of scabies. Taking pity on the baby, respondent Alviar and her mother, Maura Salacup Neri, decided to take care of her.

This baby was baptized at the Good Samaritan Church on April 30, 1988. Her Certificate of Baptism10 indicates her name to be Cristina Grace S. Neri; her
birthday to be April 30, 1987; her birthplace to be Quezon City; and her foster father and foster mother to be Cicero Neri and Maura Salacup, respectively.
Respondent Alviar was invited by the National Bureau of Investigation for questioning on September 22, 1992 in the presence of Dra. Ty and petitioner.
Cristina was also brought along by said respondent. At that confrontation, Dra. Ty could not be sure that Cristina was indeed petitioners child, Arabella.
Neither could petitioner with all certainty say that Cristina was her long lost daughter.

On October 13, 1992, petitioner filed a petition for the issuance of a Writ of Habeas Corpus with the Regional Trial Court11 of Quezon City. The trial court
conducted a total of eight (8) hearings, for the period, from October 28, 1992 to December 11, 1992. On January 15, 1993, it rendered a decision granting
the Petition for Habeas Corpus and ordering respondent Alviar to immediately deliver the person of Cristina Grace Neri to the petitioner, the court having
found Cristina to be the petitioners long lost child, Arabella.

The trial court, in justification of its conclusions, discussed that:

On the issue of whether or not the minor child, in question, is the daughter of the petitioner, there seems to be no question, to the mind of this Court, that the
petitioner, is, indeed, the mother of the child, registered by the name of Arabella O. Sombong, per her Certificate of Birth x x x and later caused to be
baptized as Cristina Grace S. Nery (sic) x x x For, this child is the same child which was delivered by the Sir John Clinic at Kalookan City, owned by Dra.
Carmen Ty, to Dra. Fe Mallonga and later given to the custody of the respondents. In fact, Dra. Carmen Ty, in her testimony admitted that the petitioner is the
mother of Arabella xxx

On the question of whether or not the petitioner has the rightful custody of the minor child, in question, which is being withheld by the respondents from her,
as will authorize the granting of the petition for habeas corpus x x x there is no question that the minor x x x is only about five (5) years old x x x it follows that
the child must not be separated from the mother, who is the petitioner, unless, of course, this Court finds compelling reasons to order otherwise.

Heretofore, under the New Civil Code of the Philippines, the compelling reasons which may deprive the parents of their authority or suspend exercise thereof
are stated. It was then provided in Article 332, supra, that:
The courts may deprive the parents of their authority x x x if they should treat their children with excessive harshness x x x or abandon them. x x x (Italics
supplied by the RTC)

Unfortunately, the foregoing article, which was under Title XI, parental authority, was expressly repealed by Article 254 of the Family Code of the Philippines
xxx xxx xxx xxx

It can be seen, therefore, that the words or abandoned them mentioned in Article 332 of the New Civil Code x x x is (sic) no longer mentioned in the
amending (of) Art. 231 of the Family Code of the Philippines.

It is clear x x x that under the law presently controlling, abandonment is no longer considered a compelling reason upon the basis of which the Court may
separate the child below seven (7) years old from the mother.

Conceivably, however, in paragraph 6 of Article 231, supra, the effects of culpable negligence on the part of the parent may be considered by this Court in
suspending petitioners parental authority over her daughter, in question x x x

The question, therefore, is whether there is culpable negligence on the part of the petitioner so that her parental authority over her child, in question, may at
least be suspended by this Court.

This Court is not persuaded that the petitioner is guilty of culpable negligence vis-a-vis her daughter, in question, upon the bases of the facts adduced. For,
there is no question that from April, 1988 she kept on demanding from Dra. Carmen Ty x x x the return of her child to her but the latter refused even to see
her or to talk to her. Neither did Vicente Ty, the husband of Dra. Carmen Ty, respond to her entreaties to return her daughter.
xxx xxx xxx
Besides, in the interim, while petitioner was looking for her daughter, she made representations for her recovery with Barangay Captains Alfonso and
Bautista, and Mayor Asistio, all of Kalookan City, as well as with Congresswoman Hortensia L. Starke to intervene in her behalf.

It cannot be said, therefore, no matter how remotely, that the petitioner was negligent, nay culpably, in her efforts for the recovery of her daughter.
xxx xxx xxx
Certainly, the respondents have no right to the parental authority of the child, superior to that of the petitioner as they are not her parents. They have,
therefore, no right to the custody of petitioners daughter. The Sir John Clinic, or Dra. Carmen Ty, have (sic) no right to deliver the child, in question, to Dra.
Fe Mallonga. Neither had the latter the right and the authority to gave (sic) the child to the respondents, whose custody of petitioners daughter is,
consequently, illegal.12

Herein private respondents filed an appeal from the decision of the Regional Trial Court to the Court of Appeals. The Appellate Court took cognizance of the
following issues: (1) The propriety of the habeas corpus proceeding vis-a-vis the problem respecting the identity of the child subject of said proceeding; (2) If
indeed petitioner be the mother of the child in question, what the effect would proof of abandonment be under the circumstances of the case; and (3) Will the
question of the childs welfare be the paramount consideration in this case which involves child custody.

The Court of Appeals reversed and set aside the decision of the trial court, ruling as it did that:

x x x the lower court erred in sweepingly concluding that petitioners child Arabella Sombong and respondents foster child Cristina Neri are one and the same
person to warrant the issuance of the writ. x x x

As clearly stated in the facts of this case, not even petitioner herself could recognize her own child when respondents foster child Cristina Neri was
presented to her before the NBI and respondent court. Dr. Carmen Ty at the NB! investigation could not also ascertain whether or not Cristina Neri and
petitioners missing child are one and the same person.

Before the lower court, petitioner-appellee presented two physicians from the Sir John Clinic, namely, Dr. Carmen Ty and Dr. Angelina Trono to identify the
child in question. But both witnesses could not positively declare that Cristina Neri is the same missing child Arabella Sombong of petitioner. Dr. Trono even
declared in court that there were other babies left in the clinic and that she could not be certain which baby was given to respondents (pp. 48-49, tsn, Nov.
10, 1992). x x x Petitioner, herself, could not identify her own child, prompting the respondent court to call for child Cristina Neri to come forward near the
bench for comparison of her physical features with that of her alleged mother, the petitioner (p. 32, tsn, Nov. 5, 1992). After a comparison of petitioner and
Cristina Neris physical features, the lower court found no similarity and to which petitioner agreed claiming that said child looked like her sister-in-law (p. 33,
id.) When the lower court instructed petitioner to bring said sister-in-law in the next hearing, petitioner stated they were not on good terms (p. 34, id.) No one,
therefore, up to this time has come forward to testify as a witness in order to positively identify respondents child Cristina Neri to be one and the same as
petitioners missing child, Arabella Sombong.
xxx xxx xxx
The issuance of a writ of habeas corpus does not lie in this case considering that petitioner is not entitled to the custody of Cristina Neri because she is not
the mother of the said child, and does not have the right to have custody over said child.
xxx xxx xxx
We do not agree with the lower court that the ground of abandonment of a child has been repealed by Art. 231 of the Family Code for abandonment can also
be included under the phrase cases which have resulted from culpable negligence of the parent (par. 2, Art. 231 of the Family Code). What can be the worst
culpable negligence of a parent than abandoning her own child. This court does not believe petitioner-appellees explanation that she had been negotiating
for the discharge of her child for the past five years. That was too long a time for negotiation when she could have filed immediately a complaint with the
authorities or the courts x x x

As to the issue of the welfare of the child, petitioner-appellees capability to give her child the basic needs and guidance in life appear (sic) to be bleak.
Before the lower court petitioner-appellee filed a motion to litigate as pauper as she had no fixed income. She also admitted that she had no stable job, and
she had been separated from a man previously married to another woman. She also confessed that she planned to go abroad and leave her other child
Johannes to the care of the nuns. The child Arabella Sombong wherever she is certainly does not face a bright prospect with petitioner-appellee.13

This prompted the petitioner to file this petition.

We do not find the petition to be meritorious.

While we sympathize with the plight of petitioner who has been separated from her daughter for more than eight years, we cannot grant her the relief she is
seeking, because the evidence in this case does not support a finding that the child, Cristina, is in truth and in fact her child, Arabella; neither is there
sufficient evidence to support the finding that private respondents custody of Cristina is so illegal as to warrant the grant of a Writ of Habeas Corpus. In
general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for
a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. The writ of habeas corpus was devised
and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A
prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient.14

Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation
of freedom of action. This is the basic requisite under the first part of Section 1, Rule 102, of the Revised Rules of Court, which 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.

In the second part of the same provision, however, Habeas Corpus may be resorted to in cases where the rightful custody of any person is withheld from the
person entitled thereto. Thus, although the Writ of Habeas Corpus ought not to be issued if the restraint is voluntary, we have held time and again that the
said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of her own
free will.15
It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the
availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

The controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority
age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or
guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and
just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of
adults, but on the courts view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not
bound to deliver a child into the custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare
at the time appears to require. In short, the childs welfare is the supreme consideration.

Considering that the childs welfare is an all-important factor in custody cases, the Child and Youth Welfare Code16 unequivocally provides that in all
questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration.17 In the same vein, the Family Code
authorizes the courts to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as
may be proper under the circumstances.18

The foregoing principles considered, the grant of the writ in the instant case will all depend on the concurrence of the following requisites: (1) that the
petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is being withheld from the petitioner by the respondent; and (3)
that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.

Not all of these requisites exist in this case. The dismissal of this petition is thus warranted.

As to the question of identity.

Petitioner does not have the right of custody over the minor Cristina because, by the evidence disclosed before the court a quo, Cristina has not been shown
to be petitioners daughter, Arabella. The evidence adduced before the trial court does not warrant the conclusion that Arabella is the same person as
Cristina. It will be remembered that, in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions
including those as to identity of person.19 These presumptions may yield, however, to the evidence proffered by the parties.

Identity may be thought of as a quality of a person or thing, - the quality of sameness with another person or thing. The essential assumption is that two
persons or things are first thought of as existing, and that then the one is alleged, because of common features, to be the same as the other.20

Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the
same. The process is both logical and analytical.

x x x it operates by comparing common marks found to exist in the two supposed separate objects of thought, with reference to the possibility of their being
the same. It follows that its force depends on the necessariness of the association between the mark and a single object. Where a certain circumstance,
feature, or mark, may commonly be found associated with a large number of objects, the presence of that feature or mark in two supposed objects is little
indication of their identity, because x x x the other conceivable hypotheses are so numerous, i.e., the objects that possess that mark are numerous and
therefore any two of them possessing it may well be different. But where the objects possessing the mark are only one or a few, and the mark is found in two
supposed instances, the chances of two being different are nil or are comparatively small.

Hence, in the process of identification of two supposed objects, by a common mark, the force of the inference depends on the degree of necessariness of
association of that mark with a single object.

For simplicitys sake, the evidential circumstance may thus be spoken of as a mark. But in practice it rarely occurs that the evidential mark is a single
circumstance. The evidencing feature is usually a group of circumstances, which as a whole constitute a feature capable of being associated with a single
object. Rarely can one circumstance alone be so inherently peculiar to a single object. It is by adding circumstance to circumstance that we obtain a
composite feature or mark which as a whole cannot be supposed to be associated with more than a single object.

The process of constructing an inference of identity thus consists usually in adding together a number of circumstances, each of which by itself might be a
feature of many objects, but all of which together make it more probable that they co-exist in a single object only. Each additional circumstance reduces the
chances of there being more than one object so associated.21

In the instant case, the testimonial and circumstantial proof establishes the individual and separate existence of petitioners child, Arabella, from that of
private respondents foster child, Cristina.

We note, among others, that Dr. Trono, who is petitioners own witness, testified in court that, together with Arabella, there were several babies left in the
clinic and so she could not be certain whether it was Arabella or some other baby that was given to private respondents. Petitioners own evidence shows
that, after the confinement of Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited the clinic. This corroborates the
testimony of petitioners own witness, Dra. Ty, that Arabella was physically confined in the clinic from November, 1987 to April, 1989. This testimony tallies
with her assertion in her counter-affidavit to the effect that Arabella was in the custody of the hospital until April, 1989. All this, when juxtaposed with the
unwavering declaration of private respondents that they obtained custody of Cristina in April, 1988 and had her baptized at the Good Samaritan Church on
April 30, 1988, leads to the conclusion that Cristina is not Arabella.

Significantly, Justice. Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the herein assailed decision, set the case for hearing on August 30,
1993 primarily for the purpose of observing petitioners demeanor towards the minor Cristina. She made the following personal but relevant manifestation:

The undersigned ponente as a mother herself of four children, wanted to see how petitioner as an alleged mother of a missing child supposedly in the
person of Cristina Neri would react on seeing again her long lost child. The petitioner appeared in the scheduled hearing of this case late, and she walked
inside the courtroom looking for a seat without even stopping at her alleged daughters seat; without even casting a glance on said child, and without even
that tearful embrace which characterizes the reunion of a loving mother with her missing dear child. Throughout the proceedings, the undersigned ponente
noticed no signs of endearment and affection expected of a mother who had been deprived of the embrace of her little child for many years. The conclusion
or finding of undersigned ponente as a mother, herself, that petitioner-appellee is not the mother of Cristina Neri has been given support by aforestated
observation x x x.22

The process of constructing an inference of identity having earlier been explained to consist of adding one circumstance to another in order to obtain a
composite feature or mark which as a whole cannot be supposed to be associated with more than a single object, the reverse is also true, i.e., when one
circumstance is added to another, and the result is a fortification of the corporeality of. each of the two objects the identity of which is being sought to be
established, the nexus of circumstances correspondingly multiply the chances of there being more than one object so associated. This is the situation that
confronts us in this case, and so the inevitable but sad conclusion that we must make is that petitioner has no right of custody over the minor Cristina,
because Cristina is not identical with her missing daughter, Arabella.

II
Private respondents not unlawfully withholding custody.

Since we hold that petitioner has not been established by evidence to be entitled to the custody of the minor Cristina on account of mistaken identity, it
cannot be said that private respondents are unlawfully withholding from petitioner the rightful custody over Cristina. At this juncture, we need not inquire into
the validity of the mode by which private respondents acquired custodial rights over the minor, Cristina. This matter is not ripe for adjudication in this instant
petition for habeas corpus.

III
Private respondents have the interest of the child Cristina at heart.
We find that private respondents are financially, physically and spiritually in a better position to take care of the child, Cristina. They have the best interest of
Cristina at heart. On the other hand, it is not to the best interest of the minor, Cristina, to be placed in the custody of petitioner, had the petitioners custody
rights over Cristina been established. The Court of Appeals gave the reason:

As to the issue of the welfare of the child, petitioner-appellees capability to give her child the basic needs and guidance in life appear (sic) to be bleak.
Before the lower court petitioner-appellee filed a motion to litigate as pauper as she had no fixed income. She also admitted that she had no stable job, and
she had been separated from a man previously married to another woman. She also confessed that she planned to go abroad and leave her other child
Johannes to the care of the nuns. The child Arabella Sombong wherever she is certainly does not face a bright prospect with petitioner-appellee 23

In the light of the aforegoing premises, we are constrained to rule that Habeas Corpus does not lie to afford petitioner the relief she seeks.

WHEREFORE, the appealed decision of the Court of Appeals in CA-G.R. SP No. 30574 is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

Padilla (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 SECOND DIVISION

AGNES GAMBOA-HIRSCH G.R. No. 174485

- versus
HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH, Respondents
x-----------------------------------------------------------------------------------------x
R E S O LU T I O N
VELASCO, JR., J.:

This is a petition for certiorari[1] under Rule 65 which seeks to set aside the June 8, 2006 Decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 94329,
which granted private respondent Franklin Harvey Hirsch (Franklin) joint custody with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor daughter
Simone Noelle Hirsch (Simone); and the August 3, 2006 CA Resolution[3] denying petitioners Motion for Reconsideration for lack of merit. Petitioner also
prays for the issuance of a temporary restraining order/injunction preventing the execution and implementation of the assailed June 8, 2006 CA Decision.

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

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

Petitioner now comes before this Court praying that we set aside the June 8, 2006 Decision and August 3, 2006 Resolution of the CA, and that we issue a
temporary restraining order/injunction on the execution and implementation of the assailed rulings of the CA based on the following grounds:

(A)

The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled upon, granted, and
decided the matter of custody x x x during the May 26, 2006 hearing conducted on the petition for writ of habeas corpus in relation to and with custody of a
minor under A.M. No. 03-03-04-SC, C.A.-GR SP. No. 94329, as no reception of evidence to support said decision was had thereon, and the honorable court
merely based its decision on mere conjectures and presumptions.

(B)

The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the motion for
reconsideration filed by [petitioner Agnes] and only made addendums thereon appertaining to the custody aspect in its Decision that the same is deemed
necessary for the protection of the interest of the child and a mere temporary arrangement while the case involving the herein parties are pending before the
Regional Trial Court x x x quite contrary to its pronouncements during the May 26, 2006 hearing when the matter of custody was insisted upon by
[respondent Franklin].

(C)

The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it granted joint custody in
utter disregard of the provisions of the Family Code, as to minors seven (7) years of age and below, in relation to the jurisprudence and pronouncements laid
down by the Honorable Supreme Court on the matter of the said provision.[4]

Acting on the petition, this Court issued its October 2, 2006 Resolution denying petitioners prayer for the issuance of a temporary restraining order. Petitioner
then filed a Motion for Reconsideration of this Resolution, and on April 11, 2007, this Court granted petitioners Motion for Reconsideration, issued a
temporary restraining order, and awarded the sole custody of the minor, Simone, to petitioner.

This petition has merit.

The CA committed grave abuse of discretion when it granted joint custody of the minor child to both parents.

The Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (emphasis supplied).[5] The Child
and Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care and custody, among others, of the child, his/her
welfare shall be the paramount consideration.[6]

The so-called tender-age presumption under Article 213 of the Family Code may be overcome only by compelling evidence of the mothers unfitness. The
mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease.[7] Here, the mother was not shown to be
unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has been adduced to wrench the child from the mothers custody.

WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The June 8, 2006 Decision and August 3, 2006 Resolution of the CA are hereby
SET ASIDE. Sole custody over Simone Noelle Hirsch is hereby AWARDED to the mother, petitioner Agnes Gamboa-Hirsch.

SO ORDERED.

THIRD DIVISION
[G.R. No. 154994. June 28, 2005]
JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO V, respondent.
DECISION
PANGANIBAN, J.:

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 of age. There being no
sufficient proof of any compelling reason to separate the minor from his mother, custody should remain with her.

The Case

Before us are two consolidated petitions. The first is a Petition for Review[1] filed by Joycelyn Pablo-Gualberto under Rule 45 of 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 Decision disposed as follows:

WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET ASIDE and
ANNULLED. The custody of the child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].

The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioners] motion to lift the award of custody pendente lite of the child to
[respondent].[3]

The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of Court, charging the appellate court with grave
abuse of discretion for denying his Motion for Partial Reconsideration of the August 30, 2002 Decision. The denial was contained in the CAs November 27,
2002 Resolution, which we quote:

We could not find any cogent reason why the [last part of the dispositive portion of our Decision of August 30, 2002] should be deleted, hence, subject
motion is hereby DENIED.[5]

The Facts

The CA narrated the antecedents as follows:

x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of Paraaque City] a petition for declaration of nullity of
his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente lite of their almost 4-year-old son, minor Rafaello (the child,
for brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his school (Infant Toddlers Discovery Center in Paraaque City) when
[she] decided to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of
[Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and Ms.
Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded
custody pendente lite of the child to [Crisanto.] [T]he Order partly read x x x:

x x x 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 enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he has failed to see his child. [Joycelyn] and the child are at
present staying with the formers step-father at the latters [residence] at Caminawit, San Jose, Occidental Mindoro.

Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up
with the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu City.

The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the spouses who stated that [the mother] does not care for the child
as she very often goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.

Art. 211 of the Family Code provides as follows:

The father and the mother shall jointly exercise parental authority over the persons of their children. In the case of disagreement, the fathers decision shall
prevail, unless there is a judicial order to the contrary.

The authority of the father and mother over their children is exercised jointly. This recognition, however, does not place her in exactly the same place as the
father; her authority is subordinated to that of the father.

In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child,
taking into account the respective resources and social and moral situations of the contending parties.

The Court believes that [Joycelyn] had no reason to take the child with her. Moreover, per Sheriff returns, she is not with him at Caminawit, San Jose,
Occidental Mindoro.

WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto
V.

x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of custody pendente lite of the child to [Crisanto] was set but the former did not
allegedly present any evidence to support her motion. However, on May 17, 2002, [the] Judge allegedly issued the assailed Order reversing her Order of
April 3, 2002 and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to wit:

Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyns] Motion to Dismiss and the respective Oppositions thereto.

[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to in the caption of the Petition is one JOCELYN Pablo Gualberto and
not Joycelyn Pablo Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As a matter of fact, the body of the Complaint states her
name correct[ly]. The law is intended to facilitate and promote the administration of justice, not to hinder or delay it. Litigation should be practicable and
convenient. The error in the name of Joycelyn does not involve public policy and has not prejudiced [her].

This case was filed on March 12, 2002. Several attempts were made to serve summons on [Joycelyn] as shown by the Sheriffs returns. It appears that on
the 4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns mother and stepfather, respectively,] read the contents of the
documents presented after which they returned the same.

The Court believes that on that day, summons was duly served and this Court acquired jurisdiction over [Joycelyn].

The filing of [Joycelyns 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, x x x [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 Crisantos favor, the CA ruled that grave abuse of discretion had been committed by the trial court in reversing the latter courts 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 Joycelyns 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 Joycelyns 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 x x x 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

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 Courts 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 Joycelyns Petition.

Timeliness of the Petition

The manner of filing and service Joycelyns 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. xxx 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.

xxxxxxxxx

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 CAs 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.

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 CAs final denial of Crisantos Motion for Reconsideration, Joycelyns 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.

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, Joycelyns 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. x x x.

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.

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 latters welfare shall be paramount. No mother shall be separated from
her child under seven years of age, unless the court finds compelling reasons for such measure.(Italics supplied)

The general rule that children under seven years of age shall not be separated from their mother finds its raison detre in the basic need of minor children for
their mothers loving care.[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 mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the
(relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet
unable to understand the situation. (Report of the Code Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No. 603).[34] Article 17 of the same Code is even more
explicit in providing for the childs custody under various circumstances, specifically in case the parents are separated. It clearly mandates that no child under
five years of age shall be separated from his mother, unless the court finds compelling reasons to do so. The provision is reproduced in its entirety as
follows:

Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just and reasonable parental authority and responsibility over their legitimate
or adopted children. In case of disagreement, the fathers decision shall prevail unless there is a judicial order to the contrary.

In case of the absence or death of either parent, the present or surviving parent shall continue to exercise parental authority over such children, unless in
case of the surviving parents remarriage, the court for justifiable reasons, appoints another person as guardian.

In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so.
(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 childrens well-
being and development. Aside from the material resources and the moral and social situations of each parent, other factors may also be considered to
ascertain which one has the capability to attend to the physical, educational, social and moral welfare of the children.[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 childrens 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 order otherwise.[48]

The so-called tender-age presumption under Article 213 of the Family Code may be overcome only by compelling evidence of the mothers unfitness. The
mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.[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 mothers 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]

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 childs uncle. Under that
circumstance, the Court deemed it in the nine-year-old childs 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 childs] 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 x x x.

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 childs proper
moral development. Such a fact has not been shown here. There is no evidence that the son was exposed to the mothers 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 childs behavior in the presence of each parent, should carry more weight than a mere
reliance on the records. All told, no compelling reason has been adduced to wrench the child from the mothers custody.

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 Crisantos 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.

SO ORDERED.

THIRD DIVISION
[G.R. No. 124724. December 22, 1997]
RENE UY GOLANGCO, petitioner, vs. THE COURT OF APPEALS, HON. CANDIDO VILLANUEVA, PRESIDING JUDGE OF THE REGIONAL TRIAL
COURT, BRANCH 144, MAKATI CITY AND LUCIA GOLANGCO, respondents.

DECISION
ROMERO, J.:

This is a petition for review on certiorari which seeks to annul and set aside the resolution of the Court of Appeals dated January 10, 1996 in CA-G.R. SP No.
38866,[1] dismissing the petition for violation of Supreme Court Circular No. 28-91 on forum-shopping.

The facts of the case are as follows:

A petition for annulment of marriage was filed by private respondent Lucia Carlos Golangco against petitioner Rene Uy Golangco before the Regional Trial
Court of Makati, Branch 144.[2] The couple had two children, Justin Rene and Stefan Rafael. During the proceedings of the case, a hearing for custody
pendente lite of the two children was held. In an order dated July 21, 1994,[3] the trial court awarded the two children to Lucia while Rene was given
visitation rights of at least one week in a month. Thereafter Rene questioned the order dated July 21, 1994 with the Court of Appeals. The Court of Appeals,
however, dismissed the petition and instead affirmed the order of the trial court. Not contented, Rene appealed the resolution of the Court of Appeals
affirming the order dated July 21, 1994 before this Court, and the case was docketed as G.R. No. 120831. On July 17, 1995, the Court resolved to dismiss
the petition for failure of petitioner Rene to show that grave abuse of discretion had been committed by the appellate court.

On August 15, 1995, Lucia filed with the trial court a motion for reconsideration with prayer for the issuance of a writ of preliminary injunction.[4] She sought
redress due to an alleged incident on July 5, 1995, in which her estranged husband physically abused their son Justin. On said date, he allegedly went to the
art class of Justin at 2167 Paraiso Street, Dasmarinas Village, Makati. When they met, he asked his son to kiss him, but Justin refused. Irked by his sons
reaction, Rene hit him which produced contusions.[5]

Due to the incident, a criminal complaint for slight physical injuries was filed on July 1995 against Rene by his son Justin with the Metropolitan Trial Court of
Makati on the basis of Justins complaint-affidavit. On August 16, 1995, the trial court issued a temporary restraining order[6] against him and set the hearing
of the motion. The spouses thereafter presented their respective evidence and witnesses. In an order dated October 4, 1995, [7] the trial court granted the
writ of preliminary injunction restraining Rene from seeing his children.

Aggrieved, Rene filed a petition for certiorari under Rule 65 of the Revised Rules of Court before the Court of Appeals (docketed as CA-G.R. SP. No. 38866),
alleging grave abuse of discretion on the part of the trial court in issuing the October 4, 1995 order.

In a resolution dated January 10, 1996, the Court of Appeals dismissed the petition for violation of Circular No. 28-91 on non- forum shopping.[8] Hence, this
petition.

The issue before us is whether or not petitioner violated the rule on non- forum shopping.

There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) from
another. [9]

In this case, the Court of Appeals dismissed the petition questioning the order dated October 4, 1995, on the ground that there was a petition for review filed
before this Court (G.R. No. 120381) questioning the order dated July 21, 1994 regarding the award of custody of the two children to Lucia.[10]

We should first distinguish between what is being questioned in G.R. No. 120381, that is the order dated July 21, 1994 and in CA-G.R. SP No. 38866, the
order dated October 4, 1995.

The latter case questioned the October 4, 1995 order of the trial court granting the writ of preliminary injunction prayed for by Lucia, which enjoined her
husband from seeing their children. On the other hand, G.R. No. 120381 questioned the order dated July 21, 1994, affirmed by the Court of Appeals, which
granted custody pendente lite of the children to their mother.

In the case at bar, the Court of Appeals ruled that there was forum-shopping since the two petitions, (G.R. No. 120381 and CA-G.R. SP No. 38866) dealt
with the same question or issue, that is, whether Rene should be prohibited from seeing his children.[11]

We disagree.

In assailing the October 4, 1995 order, petitioner was actually questioning the propriety of the issuance of the writ of injunction. He alleged therein that the
trial court acted with grave abuse of discretion in issuing the order since it disregarded his right to procedural due process. Moreover the said order
restrained him from seeing his children. He, therefore, sought the reinstatement of the July 21, 1994 order wherein he was given visitation rights of at least
one week in a month.

On the other hand, in the order dated July 21, 1994, petitioner specifically questioned the award of custody of the children to his wife and prayed for more
time to spend with his children.

Thus, it is clear from the foregoing that the issues raised in the two petitions, that is, first questioning the order dated July 21, 1994 and second, the order
dated October 4, 1995 are distinct and different from one another.

In First Philippine International Bank v. Court of Appeals,[12] this Court had the occasion to lay down the test to determine whether there is a violation of the
rule on forum-shopping:

Consequently, where a litigant (or one representing the same interest or person) sues the same party against whom another action or actions for the alleged
violation of the same right and the enforcement of the same relief is/are still pending, the defense of litis pendentia in one case is a bar to the others; and, a
final judgment in one would constitute res judicata and thus would cause the dismissal of the rest. x x x.

xxxxxxxxx

Ultimately, what is truly important to consider in determining whether forum-shopping exists or not is the vexation caused the courts and parties-litigant by a
party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs,
in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issues. x x x.

In sum, two different orders were questioned, two distinct causes of action and issues were raised, and two objectives were sought; thus, forum-shopping
cannot be said to exist in the case at bar.

As to the issue of the propriety of the writ of injunction, this Court finds the necessity of ruling on the same to expedite the case in the interest of justice and
to prevent further delay.

In the case of Heirs of Crisanta Y Gabriel-Almoradie v. Court of Appeals,[13] this Court ruled:

It is a rule of procedure for the Supreme Court to strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of
future litigation. No useful purpose will be served if a case or the determination of an issue in a case is remanded to the trial court only to have its decision
raised again to the Court of Appeals and from there to the Supreme Court (citing Board of Commissioners vs Judge Joselito de la Rosa and Judge
Capulong, G.R. No. 95122-23).

We have laid down the rule that the remand of the case or of an issue to the lower court for further reception of evidence is not necessary where the Court is
in position to resolve the dispute based on the records before it and particularly where the ends of justice would not be subserved by the remand thereof.
(Escudero vs Dulay, 158 SCRA 69) Moreover, the Supreme Court is clothed with ample authority to review matters, even those not raised on appeal if it
finds that their consideration is necessary in arriving at a just disposition of the case.
In this case, to remand the case to the Court of Appeals would, in all probability, only cause further delay since the decision would again be appealed to this
Court. Thus, for the expeditious administration of justice, this Court shall resolve the propriety of the issuance of the writ of injunction by the trial court.

Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts.[14] The rules provide that no preliminary injunction shall be granted without hearing and prior notice to the
party or person sought to be enjoined.[15]

In this case, petitioner assailed the issuance of the writ of preliminary injunction by the trial court on the ground that he was denied procedural due process
when he was not allowed to present evidence to oppose the motion filed by his wife.

The trial court granted the writ of injunction after a hearing was conducted thereon. Based on the records, the temporary restraining order was issued on
August 16, 1995, after the motion for reconsideration was filed by private respondent. During the hearing on the motion, Lucia presented as witnesses her
sons Justin and Stefan Carlos Golangco, Dr. Pedro Solis and Dra. Llamanzares.

Justin, testified on the incident of July 5, 1995, wherein his father allegedly hit him causing his head to bump against the wall resulting in injuries to his upper
eyelid, temporal area of the head and neck.[16] This was corroborated by Dr. Pedro Solis, Medico-Legal consultant of the Makati Medical Center Hospital.

Petitioner, on the other hand, presented three witnesses, namely, Sylvia Cancio Lim, Martha Oroza Uy and Patria Judith Gonzales. Lim and Uy testified that
Rene was a loving and caring father to his sons.

After the presentation of evidence, the trial court granted the writ of preliminary injunction, stating that petitioner failed to present any controverting evidence
to warrant the denial of the motion.[17]

In the case of Bataclan v. Court of Appeals,[18] this Court held:

A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for
no other purpose during the pendency of the principal action. In the issuance thereof, the courts are given sufficient discretion to determine the necessity for
the grant of the relief prayed for as it affects the respective rights of the parties, with the caveat that extreme caution be observed in the exercise of such
discretion. Quintessentially, it is with an equal degree of care and caution that courts ought to proceed in the denial of the writ. It should not just summarily
issue an order of denial without an adequate hearing and judicious evaluation of the merits of the application. A perfunctory and improvident action in this
regard would be denial of procedural due process and could result in irreparable prejudice to a party. (Underscoring supplied; citations omitted)

In the case at bar, the trial court gave both parties the opportunity to present their respective evidence and witnesses. An adequate hearing was conducted
and, based on the evidence, the trial court deemed it proper to grant the writ of preliminary injunction.

The assessment and evaluation of evidence in the issuance of the writ of preliminary injunction involves findings of facts ordinarily left to the trial court for its
conclusive determination.

It is a fundamental and settled rule that conclusions and findings of fact by the trial court are entitled to great weight and should not be disturbed on appeal,
unless strong and cogent reasons dictate otherwise. This is because the trial court is in a better position to examine the real evidence, as well as to observe
the demeanor of the witnesses while testifying in the case.[19]

This Court, therefore, finds no justifiable reason or exception[20] sufficient to cause the reversal of the trial courts declaration in granting the writ of
preliminary injunction against petitioner.

WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The decision of the Court of Appeals in C.A.-G.R. No. 38866 dated January 10, 1996,
is SET ASIDE. The order dated October 4, 1995, issued by the court a quo is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

SECOND DIVISION
[G.R. No. 118870. March 29, 1996]
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (Ninth Division) and RAY C. PEREZ, respondents.
DECISION
ROMERO, J.:

Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of
resolving conflicts, the most celebrated case being that when his authority was invoked to determine the identity of the real mother as between two women
claiming the same infant. Since there could only be one mother, the daunting task that confronted the king/judge was to choose the true one.

In the instant case, we are faced with the challenge of deciding, as between father and mother, who should have rightful custody of a child who bears in his
person both their genes.

While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a decision have arrived at diametrically
opposite conclusions.

It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the other.

On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boys father Ray C. Perez, reversing the trial courts
decision to grant custody to Nerissa Z. Perez, the childs mother.

Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner herein, is a registered nurse. They were
married in Cebu on December 6, 1986. After six miscarriages, two operations and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New
York on July 20, 1992.

Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest house in Mandaue City, Cebu. She also
sought medical attention for her successive miscarriages in New York. She became a resident alien in February 1992.

Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his wife, however, he had only a tourist visa
and was not employed.

On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the U.S. She alleged that they came home only
for a five-week vacation and that they all had round-trip tickets. However, her husband stayed behind to take care of his sick mother and promised to follow
her with the baby. According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and
continued working. She was supposed to come back immediately after winding up her affairs there.

When Nerissa came home a few days before Ray IIs first birthday, the couple was no longer on good terms. That their love for each other was fading
became apparent from their serious quarrels. Petitioner did not want to live near her in-laws and rely solely on her husbands meager income of P5,000.00.1
She longed to be with her only child but he was being kept away from her by her husband. Thus, she did not want to leave RJ (Ray Junior) with her husband
and in-laws. She wished for her son to grow up with his mother.

On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He maintained that it would not be difficult to
live here since they have their own home and a car. They could live comfortably on his P 15,000.00 monthly income2 as they were not burdened with having
to pay any debts.

Petitioner was forced to move to her parents home on Guizo Street in Mandaue. Despite mediation by the priest who solemnized their marriage, the couple
failed to reconcile.

On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus3 asking respondent Ray C. Perez to surrender the custody of their son, Ray Z. Perez
II, to her.

On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother, Nerissa Perez, citing the second paragraph
of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise. The dispositive portion of the Order reads:

WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn over the custody of their child Ray Cortes Perez II,
his passport and roundtrip ticket to herein petitioner with a warning that if he will escape together with the child for the purpose of hiding the minor child
instead of complying with this Order, that warrant for his arrest will be issued.

SO ORDERED.4

Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial courts order and awarded custody of the boy to his father.5

Petitioners motion for reconsideration having been denied,6 she filed the instant petition for review where the sole issue is the custody of Ray Perez II, now
three years old.

Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa Perez custody over Ray II even if the
child is under seven years old. It held that granting custody to the boys father would be for the childs best interest and welfare.7

Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only child. It is sad that petitioner and private
respondent have not found it in their hearts to understand each other and live together once again as a family. Separated in fact, they now seek the Courts
assistance in the matter of custody or parental authority over the child.

The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the mother complement each other in giving
nurture and providing that holistic care which takes into account the physical, emotional, psychological, mental, social and spiritual needs of the child. By
precept and example, they mold his character during his crucial formative years.

However, the Courts intervention is sought in order that a decision may be made as to which parent shall be given custody over the young boy. The Courts
duty is to determine whether Ray Perez II will be better off with petitioner or with private respondent. We are not called upon to declare which party
committed the greater fault in their domestic quarrel.

When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It 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. (Italics supplied)

Since the Code does not qualify the word separation to mean legal separation decreed by a court, couples who are separated in fact, such as petitioner and
private respondent, are covered within its terms.8

The Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides:

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 questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance 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 chosen be unfit to
take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be
separated from its mother, unless the court finds there are compelling reasons therefor. (Italics supplied)
The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds
compelling reasons to order otherwise. The use of the word shall in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court
connotes a mandatory character. In the case of Lacson v. San Jose-Lacson,9 the Court declared:

The use of the word shall in Article 36310 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal
provision, underscores its mandatory character. It prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such
separation is grounded upon compelling reasons as determined by a court.11

The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code Commission:

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 mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the
divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as
yet unable to understand her situation. (Report of the Code Commission, p. 12)12

The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be separated from the mother (Article 363), has
expressly repealed the earlier Article 17, paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603) which reduced the childs age
to five years.13

The general rule that a child under seven years of age shall not be separated from his mother finds its raison detre in the basic need of a child for his
mothers loving care.14 Only the most compelling of reasons shall justify the courts awarding the custody of such a child to someone other than his mother,
such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of
custody and parental authority: neglect, abandonment,15 unemployment and immorality,16 habitual drunkenness,17 drug addiction, maltreatment of the
child, insanity and being sick with a communicable disease.18

It has long been settled that in custody cases,19 the foremost consideration is always the Welfare and best interest of the child. In fact, no less than an
international instrument, the Convention on the Rights of the Child provides: In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.20

Courts invariably look into all relevant factors presented by the contending parents, such as their material resources, social and moral situations.21

In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means.

Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point against her. The records, however, show that
she is employed in a New York hospital22 and was, at the time the petition was filed, still abroad.23 She testified that she intends to apply for a job
elsewhere, presumably to improve her work environment and augment her income, as well as for convenience.24 The Court takes judicial notice of the fact
that a registered nurse, such as petitioner, is still very much in demand in the United States. Unlike private respondent, a doctor who by his own admission
could not find employment there, petitioner immediately got a job in New York. Considering her skill and experience, petitioner should find no difficulty in
obtaining work elsewhere, should she desire to do so.

The decision under review casts doubt on petitioners capability to take care of the child, particularly since she works on twelve-hour shifts thrice weekly, at
times, even at night. There being no one to help her look after the child, it is alleged that she cannot properly attend to him. This conclusion is as
unwarranted as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of
working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously.
Second, many a mother, finding herself in such a position, has invited her own mother or relative to join her abroad, providing the latter with plane tickets and
liberal allowances, to look after the child until he is able to take care of himself. Others go on leave from work until such time as the child can be entrusted to
day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the
latter exercises supervision, for even in our culture, children are often brought up by housemaids or yayas under the eagle eyes of the mother. Third, private
respondents work schedule was not presented in evidence at the trial. Although he is a general practitioner, the records merely show that he maintains a
clinic, works for several companies on retainer basis and teaches part-time.25 Hence, respondent courts conclusion that his work schedule is flexible (and
h)e can always find time for his son26 is not well-founded. Fourth, the fact that private respondent lives near his parents and sister is not crucial in this case.
Fifth, petitioners work schedule cited in the respondent courts decision is not necessarily permanent. Hospitals work in shifts and, given a mothers instinctive
desire to lavish upon her child the utmost care, petitioner may be expected to arrange her schedule in such a way as to allocate time for him. Finally, it does
not follow that petitioner values her career more than her family simply because she wants to work in the United States. There are any number of reasons for
a persons seeking a job outside the country, e.g. to augment her income for the familys benefit and welfare, and for psychological fulfillment, to name a few.
In the instant case, it has been shown that petitioner earned enough from her job to be able to construct a house for the family in Mandaue City. The record
describes sketchily the relations between Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did not exert
earnest efforts and make sacrifices to save her marriage.

It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated several times over a period of six years to
finally bear one, only for the infant to be snatched from her before he has even reached his first year. The mothers role in the life of her child, such as Ray II,
is well-nigh irreplaceable. In prose and poetry, the depth of a mothers love has been immortalized times without number, finding as it does, its justification,
not in fantasy but in reality.

WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27, 1994 as well as its Resolution dated January
24, 1995 are hereby REVERSED and SET ASIDE. The Order of the trial court dated August 27, 1993 is hereby REINSTATED. Custody over the minor Ray
Z. Perez II is awarded to his mother, herein petitioner Nerissa Z. Perez. This decision is immediately executory.

SO ORDERED.

Regalado (Chairman), Puno, and Mendoza, JJ., concur.

Torres, Jr., J., on leave.