As a general rule, the father and the mother shall jointly exercise parental authority over the persons of

their common children. 53 However, insofar as illegitimate children are concerned, Article 17654 of the
Family Code states that illegitimate children shall be under the parental authority of their mother.
Accordingly, mothers (such as Renalyn) are entitled to the sole parental authority of their illegitimate
children (such as Queenie), notwithstanding the father's recognition of the child. In the exercise of that
authority, mothers are consequently entitled to keep their illegitimate children in their company, and
the Court will not deprive them of custody, absent any imperative cause showing the mother's unfitness
to exercise such authority and care.

RENALYN A. MASBATE and SPOUSES RENATO MASBATE and MARLYN.MASBATE Vs. RICKY JAMES
RELUCIO, G.R. No. 235498, 3 0 JUL 2018

In addition, Article 213 of the same Code provides for the so-called tender-age presumption, stating that
"[n]o child under seven [(7)] years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise." The rationale behind the rule was explained by the Code
Commission in this wise: The general rule is recommended in order to avoid many a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for "compelling
reasons" for the good of the child; those cases must indeed be rare, if the mother's heart is not to be
unduly hurt. x x x5
backtrack

*************
By granting temporary albeit limited custody ahead of trial, the appellate court overturned the tender-
age presumption with nothing but Ricky James' bare allegations, to which the Court cannot give its
imprimatur. As earlier intimated, the issue surrounding Renalyn' s fitness as a mother must be properly
threshed out in the trial court before she can be denied custody, even for the briefest of periods, over
Queenie. In view of the disposition in Silva and Briones and the rules quoted above, the Court can only
uphold Ricky James' visitation rights, which shall be limited to two (2) days per week, without prejudice
to Renalyn allowing him additional days. However, consistent with the aforesaid cases, as well as the
more recent case of Grande v. Antonio,74 Ricky James may take Queenie out only upon the written
consent of Renalyn. Contrary to the posturing 75 of the appellate court, the requirement for the consent
of the mother is consistent with the regime of sole maternal custody under the second paragraph of
Article 213 of the Family Code with respect to children under seven (7) years of age, which may be
overcome only by compelling evidence of the mother's unfitness. 76 Until and unless Ricky James is able
to substantiate his allegations, he can only claim visitation rights over his daughter. WHEREFORE,

88888

here 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.
JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO
RAFAELITO GUALBERTO V, respondent.

[G.R. No. 156254. June 28, 2005]

CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF

APPEALS; Hon. HELEN B. RICAFORT,
The Ruling of the Court
Upon review of the records, the Court agrees with the findings and recommendation of the OCA that
Judge Trocino acted with gross ignorance of the law when he issued, ex parte, the December 23,
2005 TPO pursuant to A.M. No. 04-10-11-SC in relation to R.A. No. 9262, which granted, among
others, the temporary custody of the minor child to Peña and issued a protection order against
complainant effective for thirty (30) days. He deliberately ignored the provisions of the Family Code,
A.M. No. 03-04-04- SC otherwise known as the Rule on Custody of Minors and Writ of Habeas
Corpus in relation to Custody of Minors and A.M. No. 04-10-11-SC or the Rule on Violence against
Women and their Children.

Gross ignorance of the law is the disregard of the basic rules and settled jurisprudence.17 A judge
owes it to his office to simply apply the law when the law or a rule is basic18 and the facts are
evident.19 Not to know it or to act as if one does not know it constitutes gross ignorance of the law.20

On Child Custody

Article 176 of the Family Code explicitly confers the sole parental authority of an illegitimate child to
the mother. This preference favoring the mother is reiterated in Article 213 of the Family Code which
provides that no child under seven years of age shall be separated from the mother. Only the most
compelling of reasons, such as the mother's unfitness to exercise sole parental authority, shall justify
her deprivation of parental authority and the award of custody to someone else.21 The mother's
fitness is a question of fact to be properly entertained in the special proceedings before the trial
court.22

November 7, 2017

A.M. No. RTJ-17-2508

MARIE ROXANNE G. RECTO, Complainant

vs.
HON. HENRY J. TROCINO, REGIONAL TRIAL COURT, BRANCH 62, BAGO CITY, NEGROS
OCCIDENTAL, Respondent

************
It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to
judicial custodial agreements based on its text that "No child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise." To limit
this provision’s enforceability to court sanctioned agreements while placing private agreements
beyond its reach is to sanction a double standard in custody regulation of children under seven
years old of separated parents. This effectively empowers separated parents, by the simple
expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole
custody of her children under seven years of age "to avoid a tragedy where a mother has seen her
baby torn away from her."23 This ignores the legislative basis that "[n]o man can sound the deep
sorrows of a mother who is deprived of her child of tender age."24

HERALD BLACK DACASIN, Petitioner,

vs.
SHARON DEL MUNDO DACASIN, G.R. No. 168785 February 5, 2010

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the
mother when she refused to allow joint custody by the father. The Agreement would be valid if the
spouses have not divorced or separated because the law provides for joint parental authority when
spouses live together.21 However, upon separation of the spouses, the mother takes sole custody
under the law if the child is below seven years old and any agreement to the contrary is void. Thus,
the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced
spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law
decides for the separated or divorced parents how best to take care of the child and that is to give
custody to the separated mother. Indeed, the separated parents cannot contract away the provision
in the Family Code on the maternal custody of children below seven years anymore than they can
privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or
afflicted with a communicable disease will have sole custody of a child under seven as these are
reasons deemed compelling to preclude the application of the exclusive maternal custody regime
under the second paragraph of Article 213.22 (ibid)

G.R. No. 111180 November 16, 1995

DAISIE T. DAVID, petitioner,
vs.
COURT OF APPEALS, RAMON R. VILLAR,

***************

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 one's 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 petitioner's 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.

G.R. No. 105308 September 25, 1998

HERBERT CANG, petitioner,

vs.
COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO