PARENTAL AUTHORITY

G.R. No. 235498, July 30, 2018

RENALYN A. MASBATE AND SPOUSES RENATO MASBATE AND MARLYN

MASBATE, Petitioners, v. RICKY JAMES RELUCIO, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated January 12, 2017 and
the Omnibus Resolution3 dated October 3, 2017 of the Court of Appeals (CA) in CA-G.R. SP No.
144406, which set aside the Orders dated December 4, 20154 and January 7, 20165 of the
Regional Trial Court of Legazpi City, Albay, Branch 8 (RTC) in Special Proceeding (SP) No. FC-
15-239, directed the remand of the case to the RTC for trial, and granted respondent Ricky
James Relucio (Ricky James) "temporary custody" once a month for a period not exceeding
twenty-four (24) hours over the minor, Queenie Angel M. Relucio (Queenie), his illegitimate
daughter with petitioner Renalyn A. Masbate (Renalyn), on top of visitation rights fixed at two
(2) days per week.

The Facts

Queenie was born on May 3, 2012 to Renalyn and Ricky James, who had been living together
with Renalyn's parents without the benefit of marriage. Three (3) years later, or in April 2015,
the relationship ended. Renalyn went to Manila, supposedly leaving Queenie behind in the care
and custody of her father, Ricky James.6

Ricky James alleged that on November 7, 2015, Spouses Renata and Marlyn Masbate (Renalyn's
parents) took Queenie from the school where he had enrolled her. When asked to give Queenie
back, Renalyn's parents refused and instead showed a copy of a Special Power of
Attorney7 (SPA) executed by Renalyn granting full parental rights, authority, and custody over
Queenie to them. Consequently, Ricky James filed a petition for habeas corpus and child
custody8docketed as SP No. FC-15-239 before the RTC (petition a quo).9

A hearing was conducted on December 3, 2015, where Renalyn brought Queenie and expressed
the desire for her daughter to remain in her custody. 10

The RTC Ruling

In an Order11 dated December 4, 2015, the RTC ruled that the custody of three (3)-year-old
Queenie rightfully belongs to Renalyn, citing the second paragraph of Article 213 of the Family
Code, which states that "[n]o child under seven [(7)] years of age shall be separated from the
mother x x x." The RTC likewise found that, while Renalyn went to Manila to study dentistry and
left Queenie in the custody of her parents, her intention was to bring Queenie to Manila at a
later time. Thus, in the fallo of said Order, the RTC declared that it will "NOT GIVE FURTHER DUE
COURSE" to the petition a quo.12

Dissatisfied, Ricky James moved for reconsideration,13 lamenting the "[extraordinary] speed in
the issuance of the x x x award of custody over the child to [petitioners]." 14 He claimed that the
hearing conducted on December 3, 2015 was not the kind of hearing that was procedurally
contemplated under A.M. No. 03-04-04-SC,15 otherwise known as the "Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to Custody of Minors," because the RTC merely
propounded random questions without placing the witnesses on the stand to testify under oath.
Moreover, he was allegedly deprived of his right to due process when the RTC refused to give
further due course to the petition a quo.16

The motion was denied in an Order17 dated January 7, 2016, wherein the RTC emphasized that
Queenie was born out of wedlock, for which reason she shall be under the parental authority of
her mother, Renalyn, pursuant to Article 176 18 of the Family Code. In addition, the RTC faulted
Ricky James for failing to present credible evidence in court to demonstrate that Renalyn is unfit
to take custody of their daughter.19

Aggrieved, Ricky James filed an appeal20 before the CA, imputing error upon the RTC: (a) in not
conducting a full blown trial and not receiving evidence; (b) in granting sole custody to Renalyn
without giving paramount consideration to the best interests of the child; and (c) in not granting
him shared custody and/or visitation rights.21 Ricky James insisted that the tender-age
presumption in Article 213 of the Family Code is rebuttable by evidence of the mother's neglect,
abandonment, and unemployment, among other factors, and claimed that Renalyn abandoned
Queenie when she went to live in Manila and failed to seek employment to support her
daughter.22

For their part, Renalyn and her parents (petitioners) moved for the outright dismissal of the
appeal on the ground that no appeal can be had against an order denying a motion for
reconsideration. In addition, petitioners argued that being the illegitimate father of Queenie,
Ricky James has absolutely no right of custody over her, and that Renalyn's act of entrusting the
care of Queenie to her parents was not a renunciation of parental authority but only a temporary
separation necessitated by her need to adjust to her studies, which she undertook to improve
her and Queenie's life.23

On September 2, 2016, the case was referred to mediation, but the parties were unable to arrive
at a settlement.24

The CA Ruling

In a Decision25 dated January 12, 2017, the CA set aside the assailed RTC Orders and remanded
the case to the lower court for determination of who should exercise custody over
Queenie.26 The CA found that the RTC hastily dismissed the petition a quo upon Queenie's
production in court, when the objective of the case was to establish the allegation that Renalyn
had been neglecting Queenie, which was a question of fact that must be resolved by
trial.27 Citing Section 18 of A.M. No. 03-04-04-SC, which states that, "[a]fter trial, the court shall
render judgment awarding the custody of the minor to the proper party considering the best
interests of the minor," the CA declared that the dismissal by the RTC of the petition a quo was
not supported by the Rules.28

Nonetheless, the CA affirmed the RTC Orders granting custody to Renalyn "pending the outcome
of the case," stating that only Queenie's mother, Renalyn, has parental authority over her as she
is an illegitimate child. Further, the CA declared that the RTC must thresh out Renalyn's capacity
to raise her daughter, which shall, in tum, determine whether or not the tender-age presumption
must be upheld, or whether Queenie's well-being is better served with her remaining in the
custody of her maternal grandparents in the exercise of their substitute parental authority or
with Ricky James, who was Queenie's actual custodian before the controversy. 29
Finally, the CA granted Ricky James visitation rights of two (2) days a week, with provision for
additional visitation days that may be permitted by Renalyn.30

Petitioners filed a motion for reconsideration,31 while Ricky James filed a motion for
clarification32 asking that he be allowed to pick up Queenie from petitioners' residence on a
Friday afternoon and to return the child on a Sunday afternoon.33 In their
Comment,34 petitioners argued that the arrangement proposed by Ricky James is not within the
scope of his visitation rights, but that he may, through Renalyn's written consent, take Queenie
home on certain family occasions.35

In its Omnibus Resolution36 dated October 3, 2017, the CA denied petitioners' motion for
reconsideration for lack of merit, insisting on its application of the case of Bagtas v.
Santos,37 which held that a trial is still necessary to determine the issue of custody despite the
production of the child.38 On the other hand, the CA ruled in favor of Ricky James' motion for
clarification, granting the latter what it calls a " limited and temporary custody" that will allow
him to take Queenie out once a month, or on the first Saturday of each month, for a period not
exceeding twenty-four (24) hours, but which shall not reduce his visitation days fixed at two (2)
days per week.39 In so holding, the appellate court cited "humane and practical
considerations"40 and argued that it is in Queenie's best interest to have an exclusive time with
Ricky James.41

Undaunted, petitioners filed the instant petition for review on certiorari, maintaining that the
RTC correctly dismissed the petition a quo after the hearing on December 3, 2015 on the
grounds that: (a) the purported custodial right that Ricky James seeks to enforce in filing his
petition has no legal basis; (b) the petition a quo does not comply with the requisites for habeas
corpus petitions involving custody of minors; and (c) there are no more factual issues to be
resolved as it had already been admitted by Renalyn during the hearing that she goes to Manila
to study but that she comes home every week for Queenie and whenever there is a problem. 42

Ricky James filed a Comment/Opposition43 as well as an Urgent Omnibus Motion44 to dismiss the
petition and for immediate execution pending appeal of the Omnibus Resolution dated October
3, 2017, claiming that the instant petition was filed out of time and that it was erroneous for
petitioners to state that the last day of filing fell on November 4, 2017, a Saturday, which
compelled them to file their petition on November 6, 2017, a Monday. By his calculation, the
fifteen (15)-day reglementary period, which commenced to run upon petitioners' receipt on
October 19, 2017 of the Omnibus Resolution dated October 3, 2017, ended on November 3,
2017, a Friday, and not on November 4, 2017.45

The Issue Before the Court

The main issue for the Court's resolution is whether or not the CA correctly remanded the case a
quo for determination of who should exercise custody over Queenie.

The Court's Ruling

The petition is partially meritorious.

I.

At the outset, it must be stressed that while petitioners may have erroneously determined the
expiration of the reglementary period for filing the instant petition, which resulted in the same
being filed a day late on November 6, 2017, the Court finds it proper to overlook this procedural
lapse given the compelling merit of the petition in the interest of substantial justice.

The Court has declared that rules on the perfection of appeals, particularly on the period of filing
thereof, must occasionally yield to the loftier ends of substantial justice and equity. In the same
manner that the CA took cognizance of respondent's appeal from the denial of his motion for
reconsideration of the RTC Order dated December 4, 2015, 46which is technically prohibited under
the Rules of Court, so shall this Court hold that the ends of justice would be served better when
cases are determined, not on mere technicality or some procedural nicety, but on the merits –
after all the parties are given full opportunity to ventilate their causes and defenses. Lest it be
forgotten, dismissal of appeals purely on technical grounds is frowned upon. The rules of
procedure ought not to be applied in a very rigid, technical sense, for they have been adopted to
help secure – not override – substantial justice.47

In this relation, it may not be amiss to point out that the fundamental policy of the State, as
embodied in the Constitution in promoting and protecting the welfare of children, shall not be
disregarded by the courts by mere technicality in resolving disputes which involve the family and
the youth.48 The State is mandated to provide protection to those of tender years. Through its
laws, it safeguards them from everyone, even their own parents, to the end that their eventual
development as responsible citizens and members of society shall not be impeded, distracted or
impaired by family acrimony.49

Accordingly, the Court shall delve into the substantive arguments propounded in this case.

II.

It is settled that habeas corpus may be resorted to in cases where "the rightful custody of any
person is withheld from the person entitled thereto."50 In custody cases involving minors, the
writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a
child. The grant of the writ depends 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 respondents; 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 respondents. 51

"The right of custody accorded to parents springs from the exercise of parental authority.
Parental authority or patria potestas in Roman Law is the juridical institution whereby parents
rightfully assume control and protection of their unemancipated children to the extent required
by the latter's needs. It is a mass of rights and obligations which the law grants to parents for
the purpose of the children's physical preservation and development, as well as the cultivation of
their intellect and the education of their heart and senses. As regards parental authority, 'there
is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred
trust for the welfare of the minor.'"52

As a general rule, the father and the mother shall jointly exercise parental authority over the
persons of their common children.53However, 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.55
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 x56

According to jurisprudence, the following instances may constitute "compelling reasons" to wrest
away custody from a mother over her child although under seven (7) years of age: neglect,
abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment
of the child, insanity or affliction with a communicable disease. 57

As the records show, the CA resolved to remand the case to the RTC, ratiocinating that there is a
need to establish whether or not Renalyn has been neglecting Queenie,58 for which reason, a
trial is indispensable for reception of evidence relative to the preservation or overturning of the
tender-age presumption under Article 213 of the Family Code.59 In opposition, petitioners
contend that the second paragraph of Article 213 of the Family Code would not even apply in
this case (so as to determine Renalyn's unfitness as a mother) because the said provision only
applies to a situation where the parents are married to each other. 60 As basis, petitioners rely on
the Court's ruling in Pablo-Gualberto v. Gualberto V61 (Pablo-Gualberto), the pertinent portion of
which reads:

In like manner, the word "shall" in Article 213 of the Family Code and Section 6 of Rule 99 of the
Rules of Court has been held to connote a mandatory character. 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. x x x62

For easy reference, Article 213 of the Family Code and Section 6, Rule 99 of the Rules of Court,
which were cited in Pablo-Gualberto, are quoted hereunder in full:

Article 213 of the Family Code

Article 213. In case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise.

Section 6, Rule 99 of the Rules of Court

Section 6. Proceedings as to child whose parents are separated. Appeal. – When husband and
wife are divorced or living separately and apart from each other, and the question 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 so chosen be unfit to take charge of the child by
reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it
appears that both parents are improper persons to have the care, custody, and control of the
child, the court may either designate the paternal or maternal grandparent of the child, or his
oldest brother or sister, or some reputable and discreet person to take charge of such child, or
commit it to any suitable asylum, children's home, or benevolent society. The court may in
conformity with the provisions of the Civil Code order either or both parents to support or help
support said child, irrespective of who may be its custodian, and may make any order that is
just and reasonable permitting the parent who is deprived of its care and custody to visit the
child or have temporary custody thereof. Either parent may appeal from an order made in
accordance with the provisions of this section. No child under seven years of age shall be
separated from its mother, unless the court finds there are compelling reasons therefor.

Notably, after a careful reading of Pablo-Gualberto, it has been determined that the aforequoted
pronouncement therein is based on a previous child custody case, namely, Briones v.
Miguel63(Briones),wherein the Court pertinently held as follows:

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision
contemplates a situation in which the parents of the minor are married to each other but are
separated either by virtue of a decree of legal separation or because they are living
separately de facto. In the present case, it has been established that petitioner and Respondent
Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose
which parent to live with is deleted, but without disregarding the obligation of petitioner to
support the child.64

For guidance, the relevant issue in Briones for which the stated excerpt was made is actually the
application of Section 6, Rule 99 of the Rules of Court insofar as it permits the child over ten
(10) years of age to choose which parent he prefers to live with. As the Court's ruling
in Briones was prefaced: "[t]he Petition has no merit. However, the assailed Decision should be
modified in regard to its erroneous application of Section 6 of Rule 99 of the Rules of
Court."65 Accordingly, since the statement in Pablo-Gualberto invoked by
petitioners, i.e., that "Article 213 and Rule 99 similarly contemplate a situation in which the
parents of the minor are married to each other x x x," was based on Briones, then that same
statement must be understood according to its proper context – that is, the issue pertaining to
the right of a child to choose which parent he prefers to live with. The reason as to why this
statement should be understood in said manner is actually not difficult to discern: the choice of a
child over seven (7) years of age (first paragraph of Article 213 of the Family Code) and over ten
(10) years of age (Rule 99 of the Rules of Court) shall be considered in custody disputes only
between married parents because they are, pursuant to Article 211 of the Family Code,
accorded joint parental authority over the persons of their common children. On the other hand,
this choice is not available to an illegitimate child, much more one of tender age such as Queenie
(second paragraph of Article 213 of the Family Code), because sole parental authority is given
only to the mother, unless she is shown to be unfit or unsuitable (Article 176 of the Family
Code). Thus, since the issue in this case is the application of the exception to the tender-age
presumption under the second paragraph of Article 213 of the Family Code, and not the option
given to the child under the first paragraph to choose which parent to live with, petitioners'
reliance on Pablo-Gualberto is grossly misplaced.

In addition, it ought to be pointed out that the second paragraph of Article 213 of the Family
Code, which was the basis of the CA's directive to remand the case, does not even distinguish
between legitimate and illegitimate children – and hence, does not factor in whether or not the
parents are married – in declaring 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." "Ubi
lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this
Court) also ought not to recognize any distinction."66 As such, petitioners' theory that Article 213
of the Family Code is herein inapplicable – and thus, negates the need for the ordered remand –
is not only premised on an erroneous reading of jurisprudence, but is also one that is
fundamentally off-tangent with the law itself.

III.

The Court cannot also subscribe to petitioners' contention that even if there are compelling
reasons to separate Queenie from her mother, Renalyn, pursuant to the second paragraph of
Article 213 of the Family Code, Ricky James would still not acquire custody over their daughter
because there is no provision of law granting custody rights to an illegitimate father. 67

In the event that Renalyn is found unfit or unsuitable to care for her daughter, Article 214 of the
Family Code mandates that substitute parental authority shall be exercised by the surviving
grandparent.However, the same Code further provides in Article 216 that "[i]n default of
parents or judicially appointed guardian, the following persons shall exercise substitute parental
authority over the child in the order indicated:"

Article 216. x x x
(1)
The surviving grandparent as provided in Art. 214;

(2)
The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3)
The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

The same order of preference with respect to substitute parental authority is reiterated in
Section 13 of A.M. No. 03-04-04-SC, the "Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors," to wit:

Section 13. Provisional order awarding custody. – After an answer has been filed or after
expiration of the period to file it, the court may issue a provisional order awarding custody of the
minor. As far as practicable, the following order of preference shall be observed in the award of
custody:

(a) Both parents jointly;

(b) Either parent, taking into account all relevant considerations, especially the choice of the
minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;

(c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor
over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or
disqualified;

(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or
disqualified;
(e) The actual custodian of the minor over twenty-one years of age, unless the former
is unfit or disqualified;or

(f) Any other person or institution the court may deem suitable to provide proper care and
guidance for the minor.

It was not disputed that Ricky James was in actual physical custody of Queenie when Renalyn
left for Manila to pursue her studies until the instant controversy took place. As such, Ricky
James had already assumed obligations and enjoyed privileges of a custodial character, giving
him a cause of action to file a case of habeas corpus to regain custody of Queenie as her actual
custodian.

Indeed, it may be argued that Article 176 of the Family Code has effectively disqualified the
father of an illegitimate child from exercising substitute parental authority under Article 216
even if he were the actual custodian of the child under the premise that no one is allowed to do
indirectly what he is prohibited to do directly. However, the Court cannot adopt a rigid view,
without running afoul to the overarching consideration in custody cases, which is the best
interest of the minor. Even way back, Article 363 of the Civil Code provides that in all
questions relating to the care, custody, education and property of the children, the latter's
welfare is paramount.68 Under present rules, A.M. No. 03-04-04-SC explicitly states that "[i]n
awarding custody, the court shall consider the best interests of the minor and shall give
paramount consideration to [her] material and moral welfare. The best interests of the minor
refer to the totality of the circumstances and conditions as are most congenial to the survival,
protection, and feelings of security of the minor encouraging to [her] physical, psychological and
emotional development. It also means the least detrimental available alternative for
safeguarding the growth and development of the minor."69

In light of the foregoing, the Court finds that Queenie's best interest demands that a proper trial
be conducted to determine if she had, indeed, been neglected and abandoned by her mother,
rendering the latter unfit to exercise parental authority over her, and in the event that Renalyn
is found unsuitable, whether it is in Queenie's best interest that she be in the custody of her
father rather than her grandparents upon whom the law accords a far superior right to exercise
substitute parental authority. In the case of Bagtas v. Santos,70 which was a tug-of-war between
the maternal grandparents of the illegitimate minor child and the actual custodians of the latter,
the Court faulted the trial court for hastily dismissing the petition for habeas corpus and
awarding the custody of the minor to the grandparents without conducting any trial. The import
of such decision is that the preference accorded by Article 216 of the Family Code does not
automatically attach to the grandparents, and is conditioned upon the determination of their
fitness to take care of their grandchild. In ruling as it did, the Court ratiocinated that the child's
welfare being the most important consideration, it is not bound by any legal right of a
person over the child. Reiterating its pronouncement in the early case of Sombong v.
CA,71 the Court held that:

[I]n 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 court's 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 child's welfare is the supreme
consideration.

Considering that the child's welfare is an all-important factor in custody cases, the Child and
Youth Welfare Code unequivocally provides that in all questions regarding the care and custody,
among others, of the child, his welfare shall be the paramount consideration. 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.72

The Court cannot close its eyes to the sad reality that not all fathers, especially those who have
sired children out of wedlock, have risen to the full height of a parent's responsibility towards his
offspring. Yet, here is a father of an illegitimate child who is very much willing to take on the
whole gamut of parenting. He, thus, deserves, at the very least, to be given his day in court to
prove that he is entitled to regain custody of his daughter. As such, the CA's order to remand
the case is proper.

IV.

While the appellate court correctly remanded the case for trial, the Court, however, holds that it
erred in granting Ricky James temporary custody for a limited period of twenty-four (24)
consecutive hours once every month, in addition to visitation rights, invoking "humane and
practical considerations,"73 which were based solely on Ricky James' allegations.

It should be stressed that Section 15 of A.M. No. 03-04-04-SC provides for temporary visitation
rights, not temporary custody, as follows:

Section 15. Temporary visitation rights. – The court shall provide in its order awarding
provisional custody appropriate visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.

The temporary custodian shall give the court and non-custodial parent or parents at least five
days' notice of any plan to change the residence of the minor or take him out of his residence for
more than three days provided it does not prejudice the visitation rights of the non-custodial
parent or parents.

It is only after trial, when the court renders its judgment awarding the custody of the minor to
the proper party, that the court may likewise issue "any order that is just and reasonable
permitting the parent who is deprived of the care and custody of the minor to visit or have
temporary custody," pursuant to Section 18 of A.M. No. 03-04-04-SC, to wit:

Section 18. Judgment. – After trial, the court shall render judgment awarding the custody of the
minor to the proper party considering the best interests of the minor.

If it appears that both parties are unfit to have the care and custody of the minor, the court may
designate either the paternal or maternal grandparent of the minor, or his oldest brother or
sister, or any reputable person to take charge of such minor, or to commit him to any suitable
home for children.

In its judgment, the court may order either or both parents to give an amount necessary for the
support, maintenance and education of the minor, irrespective of who may be its custodian. In
determining the amount of support, the court may consider the following factors: (1) the
financial resources of the custodial and non-custodial parent and those of the minor; (2) the
physical and emotional health, special needs, and aptitude of the minor; (3) the standard of
living the minor has been accustomed to; and (4) the non-monetary contributions that the
parents would make toward the care and well-being of the minor.

The court may also issue any order that is just and reasonable permitting the parent
who is deprived of the care and custody of the minor to visit or have temporary
custody. (Emphasis supplied)

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, the petition is PARTLY GRANTED. The Decision dated January 12, 2017 and the
Omnibus Resolution dated October 3, 2017 of the Court of Appeals in CA-G.R. SP No. 144406
are hereby AFFIRMEDwith the MODIFICATION deleting the grant of limited and temporary
custody for lack of legal and factual basis. The grant of visitation rights of two (2) days per week
shall be maintained. Respondent Ricky James Relucio may take his daughter, Queenie Angel M.
Relucio, out but only with the written consent of petitioner Renalyn A. Masbate in accordance
with this Decision.

The Regional Trial Court of Legazpi City, Albay, Branch 8 is DIRECTEDto immediately proceed
with hearing Special Proceeding No. FC-15-239 upon notice of this Decision.

SO ORDERED.
G.R. No. 156343 October 18, 2004

JOEY D. BRIONES, petitioner,

vs.
MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents.

DECISION

PANGANIBAN, J.:

An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled
to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing
her unfitness to exercise such authority and care.

The Case

The Petition for Review1 before the Court seeks to reverse and set aside the August 28, 2002 Decision2 and the
December 11, 2002 Resolution3 of the Court of Appeals in CA-GR SP No. 69400.4 The dispositive portion of the
assailed Decision reads as follows:

"WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have custody over
the child Michael Kevin Pineda until he reaches ten (10) years of age. Once the said child is beyond ten (10)
years of age, the Court allows him to choose which parent he prefers to live with pursuant to Section 6, Rule
99 of the 1997 Rules of Civil Procedure, as amended. The petitioner, Joey D. Briones, shall help support the
child, shall have visitorial rights at least once a week, and may take the child out upon the written consent of
the mother.

"Acting on the petitioner’s ‘Urgent Motion for a Hold Departure Order’, and finding it to be without merit, the
same is DENIED."5

The challenged Resolution denied reconsideration.

The Facts

The CA summarized the antecedents of the case in this wise:

"On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against respondents
Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child Michael Kevin
Pineda.

"On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the mother of the
minor, as one of the respondents.

"A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents to produce
before this Court the living body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00 o’clock in the
afternoon.

"The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with respondent Loreta P.
Miguel. He was born in Japan on September 17, 1996 as evidenced by his Birth Certificate. The respondent
Loreta P. Miguel is now married to a Japanese national and is presently residing in Japan.

"The petitioner further alleges that on November 4, 1998 he caused the minor child to be brought to the
Philippines so that he could take care of him and send him to school. In the school year 2000-2001, the
petitioner enrolled him at the nursery school of Blessed Angels L.A. School, Inc. in Caloocan City, where he
finished the nursery course.
 "According to the petitioner, his parents, who are both retired and receiving monthly pensions, assisted him
in taking care of the child.

"On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of the
petitioner in Caloocan City on the pretext that they were visiting the minor child and requested that they be
allowed to bring the said child for recreation at the SM Department store. They promised him that they will
bring him back in the afternoon, to which the petitioner agreed. However, the respondents did not bring him
back as promised by them.

"The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City but he was
informed that the child is with the latter’s mother at Batal Heights, Santiago City. When he went there,
respondent Francisca P. Miguel told him that Michael Kevin Pineda is with her daughter at Tuguegarao City.

"He sought the assistance of the police and the Department of Social Welfare to locate his son and to bring
him back to him, but all his efforts were futile.

"Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan
City which was docketed as SPC No. 2711. However, the said case was withdrawn ex-parte.

"The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his biological
father and [as] he has demonstrated his capability to support and educate him.

"On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002 Resolution of
this Court.

"In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that he was the
one who brought their child to the Philippines and stated that she was the one who brought him here
pursuant to their agreement.

"Respondent Loreta P. Miguel likewise denies petitioner’s allegation that respondents Maricel P. Miguel and
Francisca P. Miguel were the ones who took the child from the petitioner or the latter’s parents. She averred
that she was the one who took Michael Kevin Pineda from the petitioner when she returned to the
Philippines and that the latter readily agreed and consented.

"Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was deported from
Japan under the assumed name of Renato Juanzon when he was found to have violated or committed an
infraction of the laws of Japan. She further stated that since the time the petitioner arrived in the Philippines,
he has not been gainfully employed. The custody of the child, according to respondent Loreta P. Miguel was
entrusted to petitioner’s parents while they were both working in Japan. She added that even before the
custody of the child was given to the petitioner’s parents, she has already been living separately from the
petitioner in Japan because the latter was allegedly maintaining an illicit affair with another woman until his
deportation.

"She likewise stated in her Comment that her marriage to a Japanese national is for the purpose of availing
of the privileges of staying temporarily in Japan to pursue her work so she could be able to send money
regularly to her son in the Philippines. She further stated that she has no intention of staying permanently in
Japan as she has been returning to the Philippines every six (6) months or as often as she could.

"Respondent Loreta P. Miguel prays that the custody of her minor child be given to her and invokes Article
213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the Philippines."

Ruling of the Court of Appeals

Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of Michael Kevin Pineda Miguel
to his mother, Respondent Loreta P. Miguel. While acknowledging that petitioner truly loved and cared for his son
and considering the trouble and expense he had spent in instituting the legal action for custody, it nevertheless
found no compelling reason to separate the minor from his mother. Petitioner, however, was granted visitorial
rights.

Hence, this Petition.6

Issue

In his Memorandum, petitioner formulated the "ultimate" issue as follows: "x x x [w]hether or not [he], as the natural
father, may be denied the custody and parental care of his own child in the absence of the mother who is away." 7

The Court’s Ruling

The Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application
of Section 6 of Rule 99 of the Rules of Court.

Sole Issue

Who Should Have Custody of the Child?

Petitioner concedes that Respondent Loreta has preferential right over their minor child. He insists, however, that
custody should be awarded to him whenever she leaves for Japan and during the period that she stays there. In
other words, he wants joint custody over the minor, such that the mother would have custody when she is in the
country. But when she is abroad, he -- as the biological father -- should have custody.

According to petitioner, Loreta is not always in the country. When she is abroad, she cannot take care of their child.
The undeniable fact, he adds, is that she lives most of the time in Japan, as evidenced by her Special Power of
Attorney dated May 28, 2001,8 granting to her sister temporary custody over the minor.

At present, however, the child is already with his mother in Japan, where he is studying, 9 thus rendering petitioner’s
argument moot. While the Petition for Habeas Corpus was pending before the CA, petitioner filed on July 30, 2002,
an "Urgent Motion for a Hold Departure Order,"10 alleging therein that respondents were preparing the travel papers
of the minor so the child could join his mother and her Japanese husband. The CA denied the Motion for lack of
merit.11

Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and Respondent
Loreta. Article 176 of the Family Code of the Philippines12 explicitly provides that "illegitimate children shall use the
surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with
this Code." This is the rule regardless of whether the father admits paternity.13

Previously, under the provisions of the Civil Code, illegitimate children were generally classified into two groups: (1)
natural, whether actual or by legal fiction; and (2) spurious, whether incestuous, adulterous or illicit.14 A natural child
is one born outside a lawful wedlock of parents who, at the time of conception of the child, were not disqualified by
any impediment to marry each other.15 On the other hand, a spurious child is one born of parents who, at the time of
conception, were disqualified to marry each other on account of certain legal impediments. 16

Parental authority over recognized natural children who were under the age of majority was vested in the father or
the mother recognizing them.17 If both acknowledge the child, authority was to be exercised by the one to whom it
was awarded by the courts; if it was awarded to both, the rule as to legitimate children applied. In other words, in the
latter case, parental authority resided jointly in the father and the mother.18

The fine distinctions among the various types of illegitimate children have been eliminated in the Family
Code.19Now, there are only two classes of children -- legitimate (and those who, like the legally adopted, have the
rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are
illegitimate, unless the law itself gives them legitimate status. 20
Article 54 of the Code provides these exceptions: "Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate.
Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate."

Under Article 176 of the Family Code, all illegitimate children are generally placed under one category, without any
distinction between natural and spurious.21 The concept of "natural child" is important only for purposes of
legitimation.22 Without the subsequent marriage, a natural child remains an illegitimate child.

Obviously, Michael is a natural ("illegitimate," under the Family Code) child, as there is nothing in the records
showing that his parents were suffering from a legal impediment to marry at the time of his birth. Both acknowledge
that Michael is their son. As earlier explained and pursuant to Article 176, parental authority over him resides in his
mother, Respondent Loreta, notwithstanding his father’s recognition of him.

David v. Court of Appeals 23 held that the recognition of an illegitimate child by the father could be a ground for
ordering the latter to give support to, but not custody of, the child. The law explicitly confers to the mother sole
parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and
authority over the minor. Of course, the putative father may adopt his own illegitimate child; 24 in such a case, the
child shall be considered a legitimate child of the adoptive parent. 25

There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the
minor, is entitled to have custody of him.26 She has the right to keep him in her company.27 She cannot be deprived
of that right,28 and she may not even renounce or transfer it "except in the cases authorized by law."29

Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under seven years of age
shall be separated from the mother, except when the court finds cause to order otherwise.

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. 30 In the past, the following grounds
have been considered ample justification to deprive a mother of custody and parental authority: neglect or
abandonment,31 unemployment, immorality,32 habitual drunkenness, drug addiction, maltreatment of the child,
insanity, and affliction with a communicable disease.

Bearing in mind the welfare and the best interest of the minor as the controlling factor, 33 we hold that the CA did not
err in awarding care, custody, and control of the child to Respondent Loreta. There is no showing at all that she is
unfit to take charge of him.

We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of Appeals, 34 the Court
sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent
and natural right of parents over their children. 35 Even when the parents are estranged and their affection for each
other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts
allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a
situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree
of legal separation or because they are living separately de facto. In the present case, it has been established that
petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to
choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the
disposition allowing the child, upon reaching ten (10) years of age, to choose which parent to live with
is DELETEDfor lack of legal basis. Costs against petitioner.

SO ORDERED.
G.R. No. L-68374 June 18, 1985

HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, HON ROQUE A. TAMAYO, as Presiding Judge of Regional Trial Court,
NCR Branch CXXXI1 Makati, Metro Manila, MARIA LOURDES SANTOS, and SIXTO
SALUMBIDES, respondents.

CONCEPCION, JR., J.:

Review on certiorari of the decision of the respondent appellate court in case CA-G. R. No. SP-01869, entitled:
" Horacio Luna, et al., petitioners, versus Hon. Roque A. Tamayo, etc., et al., respondents, " which affirmed an order
denying a motion to restrain the execution of a final judgment rendered in a habeas corpus case.

The records of the case show that the herein private respondent Maria Lourdes Santos is an illegitimate child of the
petitioner Horacio Luna who is married to his co-petitioner Liberty Hizon-Luna. Maria Lourdes Santos is married to
her correspondent Sixto Salumbides, and are the parents of Shirley Santos Salumbides, also known as Shirley Luna
Salumbides, who is the subject of this child custody case.

It appears that two or four months after the birth of the said Shirley Salumbides on April 7, 1975, her parents gave
her to the petitioners, a childless couple with considerable means, who thereafter showered her with love and
affection and brought her up as their very own. The couple doted upon Shirley who called them "Mama" and "Papa".
She calls her natural parents "Mommy" and "Daddy." When Shirley reached the age of four (4) years in 1979, she
was enrolled at the Maryknoll College in Quezon City, where she is now in Grade I I I.

A few months before September, 1980, her "Mama" and "Papa" decided to take Shirley abroad and show her
Disneyland and other places of interest in America. Shirley looked forward to this trip and was excited about it.
However, when the petitioners asked for the respondents' written consent to the child's application for a U.S. visa,
the respondents refused to give it, to the petitioners' surprise and chagrin Shirley was utterly disappointed. As a
result, the petitioners had to leave without Shirley whom they left with the private respondents, upon the latter's
request. The petitioners, however, left instructions with their chauffeur to take and fetch Shirley from Maryknoll
College every school day.

When the petitioners returned on October 29, 1980, they learned that the respondents had transferred Shirley to the
St. Scholastica College. The private respondents also refused to return Shirley to them. Neither did the said
respondents allow Shirley to visit the petitioners. In view thereof, the petitioners filed a petition for habeas corpus
with the Court of First Instance of Rizal, Branch XV, against the private respondents to produce the person of
Shirley and deliver her to their care and custody. The case was docketed in court as Spec. Proc. No. 9417, and after
the filing of an answer and due hearing, a decision was rendered on March 9, 1981, declaring the petitioners entitled
to the child's custody and forthwith granted the writ prayed for.

The private respondents appealed to the then Court of Appeals where the case was docketed as CA-G.R. No. SP-
12212, and in a decision dated April 7, 1982, the appealed decision was reversed and set aside and another
entered, ordering the petitioners, among other things, to turn over Shirley to the private respondents. The herein
petitioners filed a motion for the reconsideration of the decision but their motion was denied.

Consequently, the petitioners filed a petition for review of the decision of the appellate court. The case was docketed
herein as G.R. No. 60860 and on November 10, 1982, this Court, in a minute resolution, denied the petition for lack
of merit.

Upon finality of the judgment, the case was remanded to the court of origin and assigned to Regional Trial Court,
NCJR Branch CXXXII Makati, Metro Manila, presided over by respondent Judge Roque A. Tamayo who, thereafter,
issued an order directing the issuance of a writ of execution to satisfy and enforce the resolution of the Supreme
Court which affirmed the decision of the Court of Appeals.
The execution of the judgment was vigorously opposed by the petitioners who filed a motion for the reconsideration
of the order and to set aside the writ of execution on the ground of supervening events and circumstances, more
particularly, the subsequent emotional, psychological, and physiological condition of the child Shirley which make
the enforcement of the judgment sought to be executed unduly prejudicial, unjust and unfair, and cause irreparable
damage to the welfare and interests of the child. By reason thereof, the respondent judge called a conference
among the parties and their counsels, and conducted hearings on the petitioners' motion for reconsideration and to
set aside the writ of execution. Shirley made manifest during the hearing that she would kill herself or run away from
home if she should ever be separated from her Mama and Papa, the petitioners herein, and forced to stay with the
respondents. A portion of her testimony is quoted hereunder:

ATTY. CASTRO:

xxx xxx xxx

Q Would you want to have with your daddy and mommy, referring to Sixto
Salumbides and Maria Lourdes Salumbides

A No, sir.

Q Why not?

A Because they are cruel to me. They always spank me and they do not love me.
Whenever I am eating, they are not attending to me. It is up to me whether I like the
food or not.

xxx xxx xxx

Q Now, if you will be taken from your papa and mama (Luna spouses) and given to
your daddy and mommy (Salumbides spouses), what would you do if you will do
anything?

A I will either kill myself or I will escape. Even now they said they love me. I don't
believe them. I know they are not sincere. They are only saying that to me. And I
know those words were not coming from their hearts. If they will get me from my
papa and mama, they will be hurt because they know that my papa and mama love
me very much. 1

Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that —

... She (Shirley) has only grown more embittered, cautions, distrusting of her biological parents. She
threatens to kill herself or run away if given to her biological parents. She claims she would be very
unhappy with her biological parents since they do not understand her needs are selfish to her, and
don't know how to care for her. Presently, she is very difficult to encourage in seeing her biological
parents in a different light. 2

and that —

... I reviewed with them (Salumbides spouse) that at the present time, to get Shirley back in this
emotionally charged transaction, would hinder Shirley seeing them as truly loving and concerned
parents. She would more deeply distrust them if they uproot her from the home of the choice of Mr.
and Mrs. Luna. The biological parents wish to do what is also helpful to Shirley. I discussed with both
parties the recommendations of placement and follow up. 3

But, the respondent judge denied the petitioners' motion to set aside the writ of execution The petitioners filed a
motion for the reconsideration of the order and when it was denied, they filed a petition for certiorari and prohibition
with preliminary injunction and restraining order with the respondent Intermediate Appellate Court, which was
docketed therein as CA-G.R. No. SP-01869, to stop altogether the execution of the decision of the Court of Appeals
rendered in CA-G.R. No. SP-12212. The petition was duly heard, after which a decision was rendered on May 25,
1984, dismissing the petition, Hence, the present recourse.

The issue is whether or not procedural rules more particularly the duty of lower courts to enforce a final decision of
appellate courts in child custody cases, should prevail over and above the desire and preference of the child, to stay
with her grandparents instead of her biological parents and who had signified her intention Up kill herself or run
away from home if she should be separated from her grandparents and forced to live with her biological parents.

It is a well-known doctrine that when a judgment of a higher court is returned to the lower court, the only function of
the latter court is the ministerial one of issuing the order of execution. The lower court cannot vary the mandate of
the superior court, or examine it, for any other purpose than execution; nor review it upon any matter decided on
appeal or error apparent; nor intermeddle with it further than to settle so much as has been demanded. However, it
is also equally well-known that a stay of execution of a final judgment may be authorized whenever it is necessary to
accomplish the ends of justice as when there had been a change in the situation of the parties which makes such
execution inequitable; or when it appears that the controversy had never been submitted to the judgment of the
court; or when it appears that the writ of execution has been improvidently issued; or that it is defective in
substance; or is issued against the wrong party; or that the judgement debt has been paid or otherwise satisfied; or
when the writ has been issued without authority.

In the instant case, the petitioners claim that the child's manifestation to the trial court that she would kill herself or
run away from home if she should be forced to live with the private respondents is a supervening event that would
justify the cancellation of the execution of the final decision rendered by the Court of Appeals in CA-G.R. No. SP-
12212. The respondents, upon the other hand, maintain that there are no supervening developments and
circumstances since these events are not new as the Court of Appeals had taken into account the physiological and
emotional consideration of the transfer of custody of Shirley when it reversed the decision of the trial court and gave
to the private respondents the custody of the child Shirley; and besides, the wishes and desires of the child is no
hindrance to the parents' right to her custody since the right of the parents to the custody of their children
paramount.

We find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or run away from
home if she should be taken away from the herein petitioners and forced to live with the private respondents, made
during the hearings on the petitioners' motion to set aside the writ of execution and reiterated in her letters to the
members of the Court dated September 19, 1984 4 and January 2, 1985, 5 and during the hearing of
the case before this Court, is a circumstance that would make the execution of the
judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal
inequitable, unfair and unjust, if not illegal. Article 363 of the Civil Code provides that in all
questions relating to the care, custody, education and property of the children, the latter's
welfare is paramount. This means that the best interest of the minor can override
procedural rules and even the rights of parents to the custody of their children. Since, in
this case, the very life and existence of the minor is at stake and the child is in an age
when she can exercise an intelligent choice, the courts can do no less than respect,
enforce and give meaning and substance to that choice and uphold her right to live in an
atmosphere conducive to her physical, moral and intellectual development. The threat 6

may be proven empty, but Shirley has a right to a wholesome family life that will provide
her with love, care and understanding, guidance and counseling. and moral and material
security. But what if the threat is for real.?
7

Besides, in her letters to the members of the Court, Shirley depicted her biological parents as selfish and cruel and
who beat her often; and that they do not love her. And, as pointed out by the child psychologist, Shirley has grown
more embitered cautious and dismissing of her biological parents. To return her to the custody of the private
respondents to face the same emotional environment which she is now complaining of would be indeed traumatic
and cause irreparable damage to the child. As requested by her, let us not destroy her future.
WHEREFORE, the petition should be, as it is hereby GRANTED and the writ prayed for issued, setting aside the
judgment of the respondent Intermediate Appellate Court in CA-G.R. No. SP-01869, and restraining the respondent
judge and/or his successors from enforcing the judgment rendered by the Court of Appeals in CA-G.R. No. SP-
12212. entitled: "Horacio Luna and Liberty Hizon-Luna, petitioners-appellees, versus Maria Lourdes Santos and
Sixto Salumbides, respondents-appellants." The decision rendered in Spec. Proc. No. 9417 of the Court of First
Instance of Rizal granting the herein petitioners custody of the child Shirley Salumbides should be maintained.
Without costs. SO ORDERED.

Abad Santos, Escolin and Cuevas, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

A judgment for the custody of the child, like a judgment for support is not final and irrevocable. The welfare of the
child is the paramount consideration. It would be for Shirley's welfare to remain in the custody of the petitioners.

MAKASIAR, J., dissenting:

The resolution of the issue on who should have custody over the nine-year old girl has been viewed from a limited
approach. The majority opinion has been focused more on the personal assessment of the child rather than on the
general and specific laws and jurisprudence that should govern this case. A nine-year old child, brainwashed by the
material luxury as well as constant attention showered on her by doting grandparents, cannot possibly appreciate
the incomparable love and solicitude her natural parents have for her always, in good or bad times.

The determination, therefore, as to whose custody the child belongs must necessarily and initially involve the
question of parental authority. it appears that the law on parental authority has been conveniently side tracked by
petitioners.

Parental authority, known in Roman law as patria potestas, is defined as "the mass of rights and obligations which
parents have in relation to the person and property of their children until their majority age or emancipation, and
even after this under certain circumstances" (2 Manresa 8, cited in p. 657, Comments & Jurisprudence on the Civil
Code, Tolentino, Vol. 1, 1983 ed.).

The following Civil Code provisions thus provide:

Art. 311. The father and mother jointly exercise parental authority over their legitimate children. who
are not emancipated, In case of disagreement, the father's decision shall prevail, unless there

xxx xxx xxx

Art, 313. Parental authority cannot be renounced or transfer- red, except in cases of guardianship or
adoption approved by 'the courts, or emancipation by concession (par. 1).

Significantly, the stern pronouncements of this Court in the case of Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil.
554) are very much in point. This Court thus declared:
 The word "entrusted" cannot convey the Idea of definite and permanent renounciation of the
mother's custody of her child.

xxx xxx xxx

This Court should avert the tragedy in the years to come of having deprived mother and son of the
beautiful associations and tender, imperishable memories engendered by the relationship of parent
and child. We should not take away from a mother the opportunity of bringing up her own child even
at the cost of extreme sacrifice due to poverty and lack of means: so that afterwards, she may be
able to look back with pride and a sense of satisfaction and her efforts, however humble, to make
her dreams of her little boy come true. We should not forget that the relationship between a foster
mother and a child is not natural but artificial. If the child turn out to be a failure or forgetful of what its
foster parents had done for him, said parents might yet count and appraise all that they have done
and spent for him and with regret consider all of it as a dead loss, and even rue the day they
committed the blunder of taking the child into their hearts and their home. Not so with a real natural
mother who never counts, the cost and her sacrifices, ever treasuring memories of her associations
with her child, however unpleasant and disappointing. Flesh and blood count.

xxx xxx xxx

Whether a child should stay permanently with a kindly stranger or with his own mother, is not to be
determined alone by considerations of affluence or poverty, Poor youths who had to work their way
thru school and college, have, not infrequently, scaled the heights of success, as easily and swiftly
as their more favored companions, and done so with more, inner satisfaction, and credit to
themselves and their humble parents.

The guardianship or custody which parents exercise over -heir children is well-entrenched in this jurisdiction. Thus,
in the case of Reyes vs. Alvarez (8 Phil. 725), this Court declared:

The guardianship which parents exercise over their children by the virtue of the paternal authority
granted them by law has for its purpose their physical development, the cultivation of their
intelligence, and the development of their intellectual and sensitive faculties. For such purposes they
are entitled to control their children and to keep them in their company in order to properly comply
with their paternal obligations, but it is also their duty to furnish them with a dwelling or a place where
they may live together.

This Court has long recognized that "the right attached to parental authority is a purely personal one, and it is
extinguished upon the death of the parent exercising it" (Abiera vs. Orin, 8 Phil. 193),

Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the
right to the child's services and earnings, and the right to direct his activities and make decisions regarding his care
and control, education, health, and religion (p. 107, 59 Am. Jur. 2d.).

The right of the parents to the custody of their minor children is one of the natural rights incident to parenthood a
right supported by law and sound public policy. The right is an inherent one, which is not created by the state or by
the decision is of the courts, but derives from the nature of parental relationship. Since the rights of parents to the
custody of their minor children is both a natural and a legal right, the law could not disturb the parent-child
relationship except for the strongest reasons, and only upon a clear showing of a parent's gross misconduct or
unfitness, or of other extraordinary circumstances affecting the welfare of the child (pp. 107 & 108, 59 Am. Jur. 2d.)

Article 363 orders that 'No mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.' One of the cruelest acts in the world is
to separate a mother from her baby. This was often done in case of adultery by the mother, and the
court ordered that the custody of the child should be given to the father, but the new article provides
otherwise because the mother's maternal love-than which there is nothing greater in this life-should
be respected. Besides, she could not exert a bad influence on a baby. And lastly, perhaps the
presence of her child will often redeem her (p. 199, The Father of the First Brown Race Civil Code,
Rivera, 1978 Ed.).
As long as the parents are living and they have not lost their parental authority, patria potestas is limited to them.
Other ascendants have no authority over the children, even if the parents of the latter are minors (2 Manresa 13,
cited in p. 661, Comments and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).

Parental authority is inalienable and every abdication of this authority by the parents is void Planiol and Ripert 324,
p. 664, Ibid.).

Whatever agreement or arrangement there was between petitioners and respondents when the child Shirley was
given to the former, the same has not been validated nor legalized by the mere fact that the said girl had stayed with
the petitioners for a number of years, in view of the explicit provision of Article 313 mandating that parental authority
cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or
emancipation by concession.

Thus, the mother in case of separation, cannot by agreement vest the custody of a child in the maternal
grandmother as against the father (Mason vs. Williams, 165 Ky 331, 176 S.W. 1171, cited in p. 662, Comments and
Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).

Some United States courts have consistently ruled that since children cannot be bought and sold, and since the
parent is subject to obligations which he cannot throw off by any act of his own, agreements by which the parents, or
one of them, transfer custody of a child to a third person, with the provision or informal understanding that custody
will not be reclaimed, are not generally considered legally binding contracts, unless they amount to statutory
indentures of apprenticeship, or are supported by other express statutory provisions. This is especially true in the
case of a parent who, having been compelled by poverty or unfavorable circumstances to surrender the custody of
his child, wishes to reclaim it when circumstances are improved (p. 117, 59 Am. Jur. 2d.)

For this Court to award custody over Shirley to petitioners primarily on the basis of her reaction and choice would
run counter to existing law and jurisprudence as already aforestated.

A nine-year old girl, although already at the age of discernment, is not capable of knowing or defining varied feelings
like love, anger or cruelty when such a girl has been exposed to two contrasting conditions, the first for more than
eight years and he second, for barely four months. The child grew up amidst affluent surroundings the grandparents
being well-off. The lolo and lola, as most lolos and lolas are, doted over Shirley. In fact, she attended Maryknoll
College, a school for the elite and rode in a chauffeur-driven car. She grew up amidst a luxurious atmosphere.
Perhaps, in their own way of loving their granddaughter, they showered her with all material needs and pampered
her. Thus, the child had not been made to experience disappointments, much less hardships. Life with her lolo and
lola meant having what she wanted. In the process, Shirley moved about in a limited world, created by her Mama
(Lola) and Papa (Lolo) world felt and seen through rose-colored lenses. The child addresses her natural parents as
"Daddy" and "Mommy".

Then all of a sudden, the scenario is changed and the girl finds herself in a very contrasting situation, Having been
used to the life style offered by her grandparents and having thus absorbed a set of values different from the
average and ordinary, she now finds life with her natural parents harsh and unbearable. With the luxurious life she
had with petitioners at the back of her mind, she would naturally look at things in the respondent's home differently
and partially.

Four months is too insufficient a time for a nine-year old girl to comprehend and accept a home atmosphere striking
distinct from one where she had lived for more than eight years. Four months is a very short time for the child to be
able to understand, to absorb and to appreciate two vastly different home conditions. Whatever set of values the
second home has to offer, the same cannot settle in a child for only four months' exposure. To Shirley, therefore,
any attempted discipline imposed her natural parents means cruelty and lack of affection for her. Where before she
could choose the food she wanted, now she has to take whatever food is available within the limited means of her
parents. She cannot realize that in a middle-class family, the choice of food is restricted by the amount appropriated
therefor. The gauge is what and how much food could benefit all the members of the household and not just one
member. Choice for particular needs becomes secondary to what the family budget can afford for the entire family.
This explains why Shirley had a dislike for the conditions existing in respondents' house which did not cater to her
tastes.
In her answers to the questions which are quite leading, one can clearly sense that Shirley, who was used to having
all the lavish care and attention from petitioners, reacted negatively to her natural parents whose ways are so
different from the former. It would take some more time and exposure for Shirley to be able to really say that
respondents do not love and care for her. She would have been given more time in respondent's home to allow
whatever values such place can offer to settle in her mind. It was unfair for petitioners to push Shirley into a choice
— a decision which a nine-year old girl could not have made intelligently without undue pressure and played-up
emotionalism.

It must be noted with concern that Article 312 of the Civil Code clearly defines the specific and limited role of
grandparents when it states that "grandparents shall be consulted by all members of the family on all important
family questions." This has been interpreted to mean that as long as the parents are living, grandparents and other
ascendants have no authority over the children, even when the parents are minors. Grandparents, therefore, cannot
question the form of instruction or education chosen by the parents for the children. The grandparents can only
advise and counsel the children. But if the parents are dead or are absent, then the grandparents shall exercise
parental authority over the children (Article 354, p. 663, Comments and Jurisprudence on the Civil Code, Tolentino,
1983 Ed.).

Evidently, the present petition for custody of petitioners runs counter to the parental preference rule. Under the so-
called parental preference rule, a natural parent, father or mother, as the case may be, who is of good character and
a proper person to have the custody of the child and is reasonably able to provide for such child, ordinarily is entitled
to the custody as against all persons. Accordingly, such parents are entitled to the custody of their children as
against foster or prospective adoptive parents: and such entitlement applies also as against other, relatives of the
child, including grandparents, or as against an agency or institution (pp. 207 & 208, Vol. 67A C.J.S.).

It has been an established rule that the preference of a child is only one factor to be considered, and it is not
controlling, decisive, or determinative. Thus, notwithstanding the preference, the court has a discretion to determine
the question of custody, and it is not error for the court to refuse to discuss the custody issue with the child, The
rights of a parent will not be disregarded in order to gratify the mere wishes of a child where a parent is found to be
a proper person to be entrusted with the custody of a child (pp. 231-232, Vol. 67A C.J.S.).

In view of the foregoing, and considering that herein respondents have not been shown to be unfit or unsuitable or
financially incapable of keeping and caring for Shirley, the latter's custody should be awarded to said respondents.
 G.R. No. 132223 June 19, 2001

BONIFACIA P. VANCIL, petitioner,

vs.
HELEN G. BELMES, respondent.

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 father’s 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 Oppositor’s 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.3Respondent 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 father’s 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.

Petitioner’s claim to be the guardian of said minor can only be realized by way of substitute parental
authoritypursuant 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 minor’s guardian, respondent’s
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 (respondent’s) 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 respondent’s allegation that petitioner has not set foot in the Philippines since 1987 has
not been controverted by her. Besides, petitioner’s old age and her conviction of libel by the Regional Trial Court,
Branch 6, Cebu City in Criminal Case No. CBU-168846 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:

"Doña Maria Muñoz 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.
G.R. No. 154994 June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner,

vs.
CRISANTO RAFAELITO GUALBERTO V, respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 156254 June 28, 2005

CRISANTO RAFAELITO G. GUALBERTO V, petitioner,

vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial Court Parañaque City,
Branch 260; and JOYCELYN D. PABLO-GUALBERTO, respondents.

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 Review1 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 [petitioner’s] motion to lift the award
of custody pendente lite of the child to [respondent]."3

The second is a Petition for Certiorari4 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 CA’s 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 Parañaque
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 Toddler’s Discovery Center in
Parañaque 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, Parañaque City. Despite effort[s]
exerted by him, he has failed to see his child. [Joycelyn] and the child are at present staying with the former’s step-
father at the latter’s [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 father’s 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 [Joycelyn’s] 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 [Crisanto’s] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyn’s] 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 Sheriff’s returns. It appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie
Nolasco, [Joycelyn’s mother and stepfather, respectively,] read the contents of the documents presented after which
they returned the same. lawphil.net

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

‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after thought, perforce the Motion to [D]ismiss
should be denied.

‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under Article 213 of the
Family Code, he shall not be separated from his mother unless the Court finds compelling reasons to order
otherwise. The Court finds the reason stated by [Crisanto] not [to] be compelling reasons. The father should
1avvp hil.zw+

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 Certiorari7 before the CA, Crisanto charged the Regional Trial Court (Branch 260) of Parañaque City
with grave abuse of discretion for issuing its aforequoted May 17, 2002 Order. He alleged that this Order
superseded, without any factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him
custody pendente lite of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution.

Ruling of the Court of Appeals

Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been committed by the trial court in
reversing the latter court’s previous Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The
appellate court explained that the only incident to resolve was Joycelyn’s Motion to Dismiss, not the issuance of the
earlier Order. According to the CA, the prior Order awarding provisional custody to the father should prevail, not only
because it was issued after a hearing, but also because the trial court did not resolve the correct incident in the later
Order.

Nonetheless, the CA stressed that the trial court judge was not precluded from considering and resolving Joycelyn’s
Motion to lift the award of custody pendente lite to Crisanto, as that Motion had yet to be properly considered and
ruled upon. However, it directed that the child be turned over to him until the issue was resolved.

Hence, these Petitions.8

Issues

In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:

"1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the father,
violated Art. 213 of the Family Code, which mandates that ‘no child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise.’

"2. Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?" 9

On the other hand, Crisanto raises the following issues:

"A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of jurisdiction when,
in its August 30, 2002 Decision, it ordered respondent court/Judge ‘to consider, hear and resolve the motion
to lift award of custody pendente lite of the child to petitioner and 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 Court’s Ruling

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Preliminary Issue:

The Alleged Prematurity of the Petition in GR No. 154994

Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue. In GR No.
154994, therein Respondent Crisanto contends that the Petition for Review was filed beyond the deadline (October
24, 2002) allowed by the Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition
was sent by speed mail, only on November 4, 2002. Furthermore, he assails the Petition for its prematurity, since
his Motion for Partial Reconsideration of the August 30, 2002 CA Decision was still pending before the appellate
court. Thus, he argues that the Supreme Court has no jurisdiction over Joycelyn’s Petition.

Timeliness of the Petition

The manner of filing and service Joycelyn’s Petition by mail is governed by Sections 3 and 7 of Rule 13 of the Rules
of Court, which we quote:

"SEC. 3. Manner of filing. – The filing of pleadings, appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof, plainly indicated as such personally to the clerk of
court or by sending them by registered mail. 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.

"x x x x x x x x x

"SEC. 7. Service by mail. – Service by registered mail shall be made by depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known,
with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10)
days if undelivered. If no registry service is available in the locality of either the sender of the addressee, service
may be done by ordinary mail. (Italics supplied)

The records disclose that Joycelyn received the CA’s August 30, 2002 Decision on September 9, 2002. On
September 17, she filed before this Court a Motion for a 30-day extension of time to file a petition for review on
certiorari. This Motion was granted,11 and the deadline was thus extended until October 24, 2002.

A further perusal of the records reveals that copies of the Petition were sent to this Court and to the parties by
registered mail12 at the Biñan, Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face
of the envelope13 and attested to in the Affidavit of Service14 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 Biñan 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
Reconsideration19 was still awaiting resolution by the CA when she filed her Petition before this Court on October
24, 2002. The CA ruled on the Motion only on November 27, 2002.

The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002. Thus, on
September 17, 2002, when Joycelyn filed her Motion for Extension of Time to file her Petition for Review, she might
have still been unaware that he had moved for a partial reconsideration of the August 20, 2002 CA Decision.
Nevertheless, upon being notified of the filing of his Motion, she should have manifested that fact to this Court.

With the CA’s final denial of Crisanto’s Motion for Reconsideration, Joycelyn’s lapse may be excused in the interest
of resolving the substantive issues raised by the parties.

First Issue:

Grave Abuse of Discretion

In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered the trial court judge to
"consider, hear and resolve the motion to lift the award of custody pendente lite" without any proper motion by
Joycelyn and after the April 3, 2002 Order of the trial court had become final and executory. The CA is also charged
with grave abuse of discretion for denying his Motion for Partial Reconsideration without stating the reasons for the
denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of Court.

The Order to Hear the Motion to Lift the Award of Custody Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law or
jurisprudence;20 or 2) executed "whimsically or arbitrarily" in a manner "so patent and so gross as to amount to an
evasion of a positive duty, or to a virtual refusal to perform the duty enjoined." 21 What constitutes grave abuse of
discretion is such capricious and arbitrary exercise of judgment as that which is equivalent, in the eyes of the law, to
lack of jurisdiction.22

On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion.

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 Dismiss24 filed by Joycelyn before the RTC is her ancillary prayer for the court to lift and set
aside its April 3, 2002 Order awarding to Crisanto custody pendente lite of their minor son. Indeed, the necessary
consequence of granting her Motion to Dismiss would have been the setting aside of the Order awarding Crisanto
provisional custody of the child. Besides, even if the Motion to Dismiss was denied -- as indeed it was -- the trial
court, in its discretion and if warranted, could still have granted the ancillary prayer as an alternative relief.

Parenthetically, Joycelyn’s Motion need not have been verified because of the provisional nature of the April 3, 2002
Order. Under Rule 3825 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 action28 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 Code31 provides:

"ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by
the court. The court shall take into account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise."
This Court has held that when the parents are separated, legally or otherwise, the foregoing provision governs the
custody of their child.32 Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

"Art. 363. In all questions on the care, custody, education and property of children, the latter’s welfare shall be
paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling
reasons for such measure."(Italics supplied)

The general rule that children under seven years of age shall not be separated from their mother finds its raison
d’etre in the basic need of minor children for their mother’s loving care. 33 In explaining the rationale for Article 363 of
the Civil Code, the Code Commission stressed thus:

"The general rule is recommended in order to avoid a tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for ‘compelling reasons’ for the good of the child: those cases must indeed be rare, if
the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and
the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not
have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission,
p. 12)

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

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

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

"In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the
court finds compelling reasons to do so." (Italics supplied)

The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is unmistakable from the
language of these provisions that Article 21135 was derived from the first sentence of the aforequoted Article 17;
Article 212,36 from the second sentence; and Article 213,37 save for a few additions, from the third sentence. It
should be noted that the Family Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.38

Mandatory Character of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in Article 363 of the Civil Code and the
observations made by the Code Commission underscore the mandatory character of the word. 40 Holding in that
case that it was a mistake to deprive the mother of custody of her two children, both then below the age of seven,
the Court stressed:

"[Article 363] prohibits in no uncertain terms the separation of a mother and her child below seven years, unless
such a separation is grounded upon compelling reasons as determined by a court."41

In like manner, the word "shall" in Article 213 of the Family Code and Section 6 42 of Rule 99 of the Rules of Court
has been held to connote a mandatory character.43 Article 213 and Rule 99 similarly contemplate a situation in
which the parents of the minor are married to each other, but are separated by virtue of either a decree of legal
separation or a de facto separation.44 In the present case, the parents are living separately as a matter of fact.
The Best Interest of the Child a Primary Consideration

The Convention on the Rights of the Child provides that "[i]n all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration."45

The principle of "best interest of the child" pervades Philippine cases involving adoption, guardianship, support,
personal status, minors in conflict with the law, and child custody. In these cases, it has long been recognized that in
choosing the parent to whom custody is given, the welfare of the minors should always be the paramount
consideration.46 Courts are mandated to take into account all relevant circumstances that would have a bearing on
the children’s well-being and development. Aside from the material resources and the moral and social situations of
each parent, other factors may also be considered to ascertain which one has the capability to attend to the
physical, educational, social and moral welfare of the children. 47 Among these factors are the previous care and
devotion shown by each of the parents; their religious background, moral uprightness, home environment and time
availability; as well as the children’s emotional and educational needs

Tender-Age Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to be preferred in
awarding custody of children under the age of seven. The caveat in Article 213 of the Family Code cannot be
ignored, except when the court finds cause to order otherwise.48

The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only
by compellingevidence of the mother’s unfitness. The mother has been declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.49

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of
custody. It has indeed been held that under certain circumstances, the mother’s immoral conduct may constitute a
compelling reason to deprive her of custody.50

But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even the fact that
a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor
child.51 To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental
care.52

To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly living with her brother-in-
law, the child’s uncle. Under that circumstance, the Court deemed it in the nine-year-old child’s best interest to free
her "from the obviously unwholesome, not to say immoral influence, that the situation in which the mother ha[d]
placed herself might create in [the child’s] moral and social outlook."54

In Espiritu v. CA,55 the Court took into account psychological and case study reports on the child, whose feelings of
insecurity and anxiety had been traced to strong conflicts with the mother. To the psychologist the child revealed,
among other things, that the latter was disturbed upon seeing "her mother hugging and kissing a ‘bad’ man who
lived in their house and worked for her father." The Court held that the "illicit or immoral activities of the mother had
already caused the child emotional disturbances, personality conflicts, and exposure to conflicting moral values 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 child’s proper moral development. Such a
fact has not been shown here. There is no evidence that the son was exposed to the mother’s alleged sexual
proclivities or that his proper moral and psychological development suffered as a result.

Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her May 17, 2002 Order that
she had found the "reason stated by [Crisanto] not to be compelling"56 as to suffice as a ground for separating the
child from his mother. The judge made this conclusion after personally observing the two of them, both in the
courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy and to observe him firsthand.
This assessment, based on her unique opportunity to witness the child’s behavior in the presence of each parent,
should carry more weight than a mere reliance on the records. All told, no compelling reason has been adduced to
wrench the child from the mother’s custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas corpus and the
preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A writ of habeas corpus may be
issued only when the "rightful custody of any person is withheld from the person entitled thereto," 57 a situation that
does not apply here.

On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because Crisanto’s
right to custody has not been proven to be "clear and unmistakable."58 Unlike an ordinary preliminary injunction, the
writ of preliminary mandatory injunction is more cautiously regarded, since the latter requires the performance of a
particular act that tends to go beyond the maintenance of the status quo. 59 Besides, such an injunction would serve
no purpose, now that the case has been decided on its merits.60

WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of Appeals is
hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED. The Petition in GR No.
156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V.

SO ORDERED.
SPECIAL PARENTAL AUTHORITY

G.R. No. 82465 February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA,
BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA
CADIZ, respondents.

Jose C. Flores, Jr. for petitioners.

Jovito E. Talabong for private respondents.

PARAS, J.:

This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:

WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary
damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of
P30,000.00, moral damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded to
plaintiffs in the decision under appeal; (2) St. Francis High School, represented by the Spouses Fernando
Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with
defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of
the abovementioned actual damages, moral damages, exemplary damages and attorney's fees, and for
costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from liability, and the case
against them, together with their respective counterclaims, is hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High
School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon.
Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did
not allow their son to join but merely allowed him to bring food to the teachers for the picnic, with the directive that
he should go back home after doing so. However, because of persuasion of the teachers, Ferdinand went on with
them to the beach.

During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was
apparently drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was
Ferdinand himself who drowned. His body was recovered but efforts to resuscitate him ashore failed. He was
brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was
pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court,
Branch LVIII of Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and
Rosario Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio,
Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of
their 13-year old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the
petitioners to exercise the proper diligence of a good father of the family in preventing their son's drowning,
respondents prayed of actual, moral and exemplary damages, attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas,
Aragones, Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as
actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a
quo reasoned:

Taking into consideration the evidence presented, this Court believes that the defendant teachers namely:
Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to
exercise the diligence required of them by law under the circumstances to guard against the harm they had
foreseen. (pp. 2930, Rollo)

xxx xxx xxx

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning
incident had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could
be said that by coming late, they were remiss in their duty to safeguard the students. (p. 30, Rollo)

The students, young as they were then (12 to 13 years old), were easily attracted to the sea without
aforethought of the dangers it offers. Yet, the precautions and reminders allegedly performed by the
defendants-teachers definitely fell short of the standard required by law under the circumstances. While the
defendants-teachers admitted that some parts of the sea where the picnic was held are deep, the supposed
lifeguards of the children did not even actually go to the water to test the depth of the particular area where
the children would swim. And indeed the fears of the plaintiffs that the picnic area was dangerous was
confirmed by the fact that three persons during the picnic got drowned at the same time. Had the defendant
teachers made an actual and physical observation of the water before they allowed the students to swim,
they could have found out that the area where the children were swimming was indeed dangerous. And not
only that, the male teachers who according to the female teachers were there to supervise the children to
ensure their safety were not even at the area where the children were swimming. They were somewhere
and as testified to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and
Aurora Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a
school sanctioned one. Similarly no evidence has been shown to hold defendants Benjamin Illumin and
Aurora Cadorna responsible for the death of Ferdinand Castillo together with the other defendant teachers.
It has been sufficiently shown that Benjamin Illumin had himself not consented to the picnic and in fact he
did not join it. On the other hand, defendant Aurora Cadorna had then her own class to supervise and in fact
she was not amongst those allegedly invited by defendant Connie Arquio to supervise class I-C to which
Ferdinand Castillo belongs. (p. 30, Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following
errors committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School and its
administrator/principal Benjamin Illumin as equally liable not only for its approved co-curricular activities but
also for those which they unreasonably failed to exercise control and supervision like the holding of picnic in
the dangerous water of Talaan Beach, Sariaya, Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly
and solidarily liable with their co-defendants-teachers Rosario Lacandula, et als., for the tragic death of
Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and
tragic death of Ferdinand Castillo in favor of plaintiffs-appellants against all the defendants. (pp. 56-
57, Rollo)

The Court of Appeals ruled:

We find plaintiffs-appellants' submission well-taken.

 Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot
be gainsaid that the same was held under the supervision of the teachers employed by the said school,
particularly the teacher in charge of Class I-C to whom the victim belonged, and those whom she invited to
help her in supervising the class during the picnic. Considering that the court a quo found negligence on the
part of the six defendants-teachers who, as such, were charged with the supervision of the children during
the picnic, the St. Francis High School and the school principal, Benjamin Illumin, are liable under Article
2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They cannot
escape liability on the mere excuse that the picnic was not an "extra-curricular activity of the St. Francis High
School." We find from the evidence that, as claimed by plaintiffs-appellants, the school principal had
knowledge of the picnic even from its planning stage and had even been invited to attend the affair; and yet
he did not express any prohibition against undertaking the picnic, nor did he prescribe any precautionary
measures to be adopted during the picnic. At the least, We must find that the school and the responsible
school officials, particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and
severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the
death of their son. It is the rule that in cases where the above-cited provisions find application, the
negligence of the employees in causing the injury or damage gives rise to a presumption of negligence on
the part of the owner and/or manager of the establishment (in the present case, St. Francis High School and
its principal); and while this presumption is not conclusive, it may be overthrown only by clear and
convincing proof that the owner and/or manager exercised the care and diligence of a good father of a family
in the selection and/or supervision of the employee or employees causing the injury or damage (in this case,
the defendants-teachers). The record does not disclose such evidence as would serve to overcome the
aforesaid presumption and absolve the St. Francis High School and its principal from liability under the
above-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the
plaintiffs for the tragedy that befell them in the untimely death of their son Ferdinand Castillo and understand
their suffering as parents, especially the victim's mother who, according to appellants, suffered a nervous
breakdown as a result of the tragedy, We find that the amounts fixed by the court a quo as actual damages
and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which are
sustained by the evidence and the law.

However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should
be, as it is hereby, imposed in the present case by way of example of correction for the public good,
pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)

On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro
and Patria Cadiz guilty of negligence and jointly and severally liable for damages such finding not being
supported by facts and evidence.

2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand
Castillo, were not able to prove by their evidence that they did not give their son consent to join the picnic in
question. However, We agree with the trial court in its finding that whether or not the victim's parents had
given such permission to their son was immaterial to the determination of the existence of liability on the part
of the defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their son.
What is material to such a determination is whether or not there was negligence on the part of
defendants vis-a-visthe supervision of the victim's group during the picnic; and, as correctly found by the trial
court, an affirmative reply to this question has been satisfactorily established by the evidence, as already
pointed out.
 However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida
Aragones, are concerned. As to them, the trial court found:

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the
drowning incident had already occurred, such fact does not and cannot excuse them from their
liability. In fact, it could be said that by coming late, they were remiss in their duty to safeguard the
students.

The evidence shows that these two defendants had satisfactorily explained why they were late in going to
the picnic site, namely, that they had to attend to the entrance examination being conducted by the school
which is part of their duty as teachers thereof. Since they were not at the picnic site during the occurrence in
question, it cannot be said that they had any participation in the negligence attributable to the other
defendants-teachers who failed to exercise diligence in the supervision of the children during the picnic and
which failure resulted in the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the
two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the injury caused to the plaintiffs
because of the death of their son resulting from his drowning at the picnic. Accordingly, they must be
absolved from any liability.

As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the
counterclaim must be dismissed for lack of merit. (pp. 59-60, Rollo)

Hence, this petition.

The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will warrant the award of
damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the circumstances
surrounding the case at bar. (pp. 81-82, Rollo)

In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their
respective memoranda.

The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people
under them. In the instant case however, as will be shown hereunder, petitioners are neither guilty of their own
negligence or guilty of the negligence of those under them.

Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for
damages of any kind.

At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join
the excursion.

Testimony of Dr. Castillo on cross exam. by Atty. Flores

Q Now, when your son asked you for money to buy food, did you not ask him where he will bring
this?

A I asked him where he was going, he answered, I am going to the picnic, and when I asked him
where, he did not answer, sir.
 Q And after giving the money, you did not tell him anything more?

A No more, sir.

Q And after that you just learned that your son join the picnic?

A Yes, sir.

Q And you came to know of it after the news that your son was drowned in the picnic came to you, is
that correct?

A Yes, sir.

Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know
that your son join the picnic?

A No, sir, I did not know.

Q Did you not look for your son during that time?

A I am too busy with my profession, that is why I was not able, sir.

Q You did not ask your wife?

A I did not, sir.

Q And neither did your wife tell you that your son join the picnic?

A Later on after 12:00, sir.

Q And during that time you were too busy that you did not inquire whether your son have joined that
picnic?

A Yes, sir.

(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)

The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a
sign of consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examination?

A I have interviewed several persons and the patient herself She even felt guilty about the death of
her son because she cooked adobo for him so he could join the excursion where her son died of
drowning.

Q Why were you able to say she was feeling guilty because she was the one who personally cooked
the adobo for her son?

A It was during the interview that I had gathered it from the patient herself. She was very sorry had
she not allowed her son to join the excursion her son would have not drowned. I don't know if she
actually permitted her son although she said she cooked adobo so he could join. (Emphasis
Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro — witness).
Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner
school liable for the death of respondent's son.

Article 2180, par. 4 states that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within
the scope of their assigned tasks, even though the former are not engaged in any business or industry.

Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the
act or omission which caused damage or prejudice must have occurred while an employee was in the performance
of his assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident
happened not within the school premises, not on a school day and most importantly while the teachers and students
were holding a purely private affair, a picnic. It is clear from the beginning that the incident happened while some
members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no
permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity
neither is it considered as an extra-curricular activity.

As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by
the students and their teachers does not in any way or in any manner show acquiescence or consent to the holding
of the same. The application therefore of Article 2180 has no basis in law and neither is it supported by any
jurisprudence. If we were to affirm the findings of respondent Court on this score, employers wig forever be exposed
to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if
such act or omission he committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the
respondents-spouses.

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and
exercised diligence of a good father of a family to prevent any untoward incident or damages to all the students who
joined the picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout
masters who have knowledge in First Aid application and swimming. Moreover, even respondents' witness,
Segundo Vinas, testified that "the defendants (petitioners herein) had life savers especially brought by the
defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did
all what is humanly possible to save the child.

Testimony of Luisito Vinas on cross examination,

Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having
applied first aid on him?

A Yes, sir.

Q And while you were applying the so called first aid, the children were covering you up or were
surrounding you?

A Yes, sir.

Q You were rattled at that time, is it not?

 A No, sir.

Q You mean you were in calm and peaceful condition?

A Yes, sir.

Q Despite the fact that the boy was no longer responding to your application of first aid?

A Yes, sir.

Q You have never been disturbed, "nababahala" in the process of your application of the first aid on
the body of Ferdinand Castillo?

A No, sir, because we were attending to the application of first aid that we were doing, sir.

Q After you have applied back to back pressure and which you claimed the boy did not respond,
were you not disturb anyway?

A I was disturbed during that time, sir.

Q For how many minutes have you applied the back to back pressure?

A From 9 to 11 times, sir.

Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand
Castillo?

A Yes, sir.

Q Will you please describe how you applied a single act of back to back pressure?

A This has been done by placing the boy lay first downwards, then the face was a little bit facing
right and doing it by massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)

Testimony of Tirso de Chavez on direct examination

ATTY. FLORES:

Q Who actually applied the first aid or artificial respiration to the child?

A Myself, sir.

Q How did you apply the first aid to the guy?

A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure
and took notice of the condition of the child. We placed the feet in a higher position, that of the head
of the child, sir.

Q After you have placed the boy in that particular position, where the feet were on a higher level
than that of the head, what did you do next?

A The first thing that we did, particularly myself, was that after putting the child in that position, I
applied the back to back pressure and started to massage from the waistline up, but I noticed that
the boy was not responding, sir.
 Q For how long did you apply this back to back pressure on the boy?

A About 10 seconds, sir.

Q What about Mr. Vinas?

A Almost the same a little longer, for 15 seconds, sir.

Q After you noticed that the boy was not responding, what did you do?

A When we noticed that the boy was not responding, we changed the position of the boy by placing
the child facing upwards laying on the sand then we applied the mouth to mouth resuscitation, sir.
(pp. 92-93, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The
case at bar does not fall under any of the grounds to grant moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's
wrongful act or omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral
damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that
the petitioners were already relieved of their duty to observe the required diligence of a good father of a family in
ensuring the safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the
required diligence. Hence, the claim for moral or exemplary damages becomes baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of
negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET
ASIDE insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their
counterclaim, there being no merit, is hereby AFFIRMED.

SO ORDERED.
G.R. No. 182353 June 29, 2010

ST. JOSEPH'S COLLEGE, SR. JOSEPHINI AMBATALI, SFIC, and ROSALINDA TABUGO, Petitioners,
vs.
JAYSON MIRANDA, represented by his father, RODOLFO S. MIRANDA, Respondent.

DECISION

NACHURA, J.:

This petition for review on certiorari seeks to set aside the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
68367, which affirmed in toto the decision2 of the Regional Trial Court (RTC), Branch 221, Quezon City, in Civil
Case No. Q-95-22889.

The facts, as found by the CA, follow:

On November 17, 1994, at around 1:30 in the afternoon inside St. Joseph College’s [SJC’s] premises, the class to
which [respondent Jayson Val Miranda] belonged was conducting a science experiment about fusion of sulphur
powder and iron fillings under the tutelage of [petitioner] Rosalinda Tabugo, she being the subject teacher and
employee of [petitioner] SJC. The adviser of [Jayson’s] class is x x x Estefania Abdan.

Tabugo left her class while it was doing the experiment without having adequately secured it from any untoward
incident or occurrence. In the middle of the experiment, [Jayson], who was the assistant leader of one of the class
groups, checked the result of the experiment by looking into the test tube with magnifying glass. The test tube was
being held by one of his group mates who moved it close and towards the eye of [Jayson]. At that instance, the
compound in the test tube spurted out and several particles of which hit [Jayson’s] eye and the different parts of the
bodies of some of his group mates. As a result thereof, [Jayson’s] eyes were chemically burned, particularly his left
eye, for which he had to undergo surgery and had to spend for his medication. Upon filing of this case [in] the lower
court, [Jayson’s] wound had not completely healed and still had to undergo another surgery.

Upon learning of the incident and because of the need for finances, [Jayson’s] mother, who was working abroad,
had to rush back home for which she spent ₱36,070.00 for her fares and had to forego her salary from November
23, 1994 to December 26, 1994, in the amount of at least ₱40,000.00.

Then, too, [Jayson] and his parents suffered sleepless nights, mental anguish and wounded feelings as a result of
his injury due to [petitioners’] fault and failure to exercise the degree of care and diligence incumbent upon each one
of them. Thus, they should be held liable for moral damages. Also, [Jayson] sent a demand letter to [petitioners] for
the payment of his medical expenses as well as other expenses incidental thereto, which the latter failed to heed.
Hence, [Jayson] was constrained to file the complaint for damages. [Petitioners], therefore, should likewise
compensate [Jayson] for litigation expenses, including attorney’s fees.

On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and Tabugo] alleged that [Jayson] was a grade
six pupil of SJC in the school year 1994-1995. On November 17, 1994, at about 1:30 in the afternoon, the class to
which [Jayson] belong[s] was conducting a science experiment under the guidance and supervision of Tabugo, the
class science teacher, about fusion of sulphur powder and iron fillings by combining these elements in a test tube
and heating the same. Before the science experiment was conducted, [Jayson] and his classmates were given strict
instructions to follow the written procedure for the experiment and not to look into the test tube until the heated
compound had cooled off. [Jayson], however, a person of sufficient age and discretion and completely capable of
understanding the English language and the instructions of his teacher, without waiting for the heated compound to
cool off, as required in the written procedure for the experiment and as repeatedly explained by the teacher, violated
such instructions and took a magnifying glass and looked at the compound, which at that moment spurted out of the
test tube, a small particle hitting one of [Jayson’s] eyes.

Jayson was rushed by the school employees to the school clinic and thereafter transferred to St. Luke’s Medical
Center for treatment. At the hospital, when Tabago visited [Jayson], the latter cried and apologized to his teacher for
violating her instructions not to look into the test tube until the compound had cooled off.
After the treatment, [Jayson] was pronounced ready for discharge and an eye test showed that his vision had not
been impaired or affected. In order to avoid additional hospital charges due to the delay in [Jayson’s] discharge,
Rodolfo S. Miranda, [Jayson’s] father, requested SJC to advance the amount of ₱26,176.35 representing [Jayson’s]
hospital bill until his wife could arrive from abroad and pay back the money. SJC acceded to the request.

On December 6, 1994, however, the parents of [Jayson], through counsel, wrote SJC a letter demanding that it
should shoulder all the medical expenses of [Jayson] that had been incurred and will be incurred further arising from
the accident caused by the science experiment. In a letter dated December 14, 1994, the counsel for SJC,
represented by Sr. Josephini Ambatali, SFIC, explained that the school cannot accede to the demand because "the
accident occurred by reason of [Jayson’s] failure to comply with the written procedure for the experiment and his
teacher’s repeated warnings and instruction that no student must face, much less look into, the opening of the test
tube until the heated compound has cooled.3

Since SJC did not accede to the demand, Rodolfo, Jayson’s father, on Jayson’s behalf, sued petitioners for
damages.

After trial, the RTC rendered judgment, to wit:

WHEREFORE, premises considered, judgment is hereby rendered in favor of [Jayson] and against [petitioners].
This Court orders and holds the [petitioners] joint[ly] and solidarily liable to pay [Jayson] the following amount:

1. To pay [Jayson] the amount of ₱77,338.25 as actual damages; However, [Jayson] is ordered to reimburse
[petitioner] St. Joseph College the amount of ₱26,176.36 representing the advances given to pay [Jayson’s]
initial hospital expenses or in the alternative to deduct said amount of ₱26,176.36 from the ₱77,338.25
actual damages herein awarded by way of legal compensation;

2. To pay [Jayson] the sum of ₱50,000.00 as mitigated moral damages;

3. To pay [Jayson] the sum of ₱30,000.00 as reasonable attorney’s fees;

4. To pay the costs of suit.

SO ORDERED.4

Aggrieved, petitioners appealed to the CA. However, as previously adverted to, the CA affirmed in toto the ruling of
the RTC, thus:

WHEREFORE, in view of the foregoing, the assailed decision of the RTC of Quezon City, Branch 221 dated
September 6, 2000 is hereby AFFIRMED IN TOTO. Costs against [petitioners]. 5 1avv phi1

Undaunted, petitioners appealed` by certiorari to this Court, adamant that the CA grievously erred, thus:

I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING THAT THE PROXIMATE CAUSE OF
JAYSON’S INJURY WAS HIS OWN ACT OF LOOKING AT THE HEATED TEST TUBE BEFORE THE
COMPOUND HAD COOLED IN COMPLETE DISREGARD OF INSTRUCTIONS GIVEN PRIOR TO THE
EXPERIMENT.

II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN LIGHT OF THE RULING IN THE CASE OF ST.
MARY’S COLLEGE V. WILLIAM CARPITANOS, x x x JAYSON’S CONTRIBUTORY NEGLIGENCE OF PEEKING
INTO THE TEST TUBE WAS IN FACT THE PROXIMATE CAUSE OF HIS INJURY FOR WHICH THE
PETITIONERS SHOULD NOT BE HELD LIABLE.

III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ACTUAL DAMAGES
DESPITE THE ABSENCE OF PROOF TO SUPPORT THE SAME.

IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL DAMAGES TO [JAYSON].
V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ATTORNEY’S FEES TO
[JAYSON].

VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE PETITIONERS’ COUNTERCLAIM.6

We find no reason to depart from the uniform rulings of the lower courts that petitioners were "negligent since they
all failed to exercise the required reasonable care, prudence, caution and foresight to prevent or avoid injuries to the
students."

Jurisprudence dictates that factual findings of the trial court, especially when affirmed by the appellate court, are
accorded the highest degree of respect and are considered conclusive between the parties.7 A review of such
findings by this Court is not warranted except for highly meritorious circumstances when: (1) the findings of a trial
court are grounded entirely on speculation, surmises or conjectures; (2) a lower court’s inference from its factual
findings is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion in the appreciation of
facts; (4) the findings of the appellate court go beyond the issues of the case, or fail to notice certain relevant facts
which, if properly considered, will justify a different conclusion; (5) there is a misappreciation of facts; (6) the findings
of fact are conclusions without mention of the specific evidence on which they are based, are premised on the
absence of evidence, or are contradicted by evidence on record.8 None of the foregoing exceptions which would
warrant a reversal of the assailed decision obtains in this instance.

Yet, petitioners maintain that the proximate cause of Jayson’s injury was his own negligence in disregarding the
instructions given by Tabugo prior to the experiment and peeking into the test tube. Petitioners invoke our ruling in
St. Mary’s Academy v. Carpitanos9 which absolved St. Mary’s Academy from liability for the untimely death of its
student during a school sanctioned activity, declaring that "the negligence of petitioner St. Mary’s Academy was only
a remote cause of the accident."

We are not convinced.

Contrary to petitioners’ assertions, the lower courts’ conclusions are borne out by the records of this case. Both
courts correctly concluded that the immediate and proximate cause of the accident which caused injury to Jayson
was the sudden and unexpected explosion of the chemicals, independent of any intervening cause. The assailed
Decision of the CA quotes with favor the RTC decision, thus:

In this case, [petitioners] failed to show that the negligence of [Jayson] was the proximate cause of the latter’s injury.
We find that the immediate cause of the accident was not the negligence of [Jayson] when he curiously looked into
the test tube when the chemicals suddenly exploded which caused his injury, but the sudden and unexpected
explosion of the chemicals independent of any intervening cause. [Petitioners] could have prevented the mishap if
they exercised a higher degree of care, caution and foresight. The court a quo correctly ruled that:

"All of the [petitioners] are equally at fault and are liable for negligence because all of them are responsible for
exercising the required reasonable care, prudence, caution and foresight to prevent or avoid injuries to the students.
The individual [petitioners] are persons charged with the teaching and vigilance over their students as well as the
supervision and ensuring of their well-being. Based on the facts presented before this Court, these [petitioners] were
remiss in their responsibilities and lacking in the degree of vigilance expected of them. [Petitioner] subject teacher
Rosalinda Tabugo was inside the classroom when the class undertook the science experiment although [Jayson]
insisted that said [petitioner] left the classroom. No evidence, however, was presented to establish that [petitioner]
Tabugo was inside the classroom for the whole duration of the experiment. It was unnatural in the ordinary course of
events that [Jayson] was brought to the school clinic for immediate treatment not by [petitioner] subject teacher
Rosalinda Tabugo but by somebody else. The Court is inclined to believe that [petitioner] subject teacher Tabugo
was not inside the classroom at the time the accident happened. The Court is also perplexed why none of the other
students (who were eyewitnesses to the incident) testified in Court to corroborate the story of the [petitioners]. The
Court, however, understands that these other students cannot testify for [Jayson] because [Jayson] is no longer
enrolled in said school and testifying for [Jayson] would incur the ire of school authorities. Estefania Abdan is equally
at fault as the subject adviser or teacher in charge because she exercised control and supervision over [petitioner]
Tabugo and the students themselves. It was her obligation to insure that nothing would go wrong and that the
science experiment would be conducted safely and without any harm or injury to the students. [Petitioner] Sr.
Josephini Ambatali is likewise culpable under the doctrine of command responsibility because the other individual
[petitioners] were under her direct control and supervision. The negligent acts of the other individual [petitioners]
were done within the scope of their assigned tasks.

xxxx

"The defense of due diligence of a good father of a family raised by [petitioner] St. Joseph College will not exculpate
it from liability because it has been shown that it was guilty of inexcusable laxity in the supervision of its teachers
(despite an apparent rigid screening process for hiring) and in the maintenance of what should have been a safe
and secured environment for conducting dangerous experiments. [Petitioner] school is still liable for the wrongful
acts of the teachers and employees because it had full information on the nature of dangerous science experiments
but did not take affirmative steps to avert damage and injury to students. The fact that there has never been any
accident in the past during the conduct of science experiments is not a justification to be complacent in just
preserving the status quo and do away with creative foresight to install safety measures to protect the students.
Schools should not simply install safety reminders and distribute safety instructional manuals. More importantly,
schools should provide protective gears and devices to shield students from expected risks and anticipated dangers.

"Ordinarily, the liability of teachers does not extend to the school or university itself, although an educational
institution may be held liable under the principle of RESPONDENT SUPERIOR. It has also been held that the
liability of the employer for the [tortuous] acts or negligence of its employees is primary and solidary, direct and
immediate and not conditioned upon the insolvency of or prior recourse against the negligent employee." 10

Under the foregoing circumstances, we are hard pressed to disturb the findings of the RTC, which the CA affirmed.

Nonetheless, petitioners make much of the fact that Tabugo specifically instructed her students, including Jayson, at
the start of the experiment, not to look into the heated test tube before the compound had cooled off. Petitioners
would allocate all liability and place all blame for the accident on a twelve (12)-year-old student, herein respondent
Jayson.

We disagree.

As found by both lower courts, the proximate cause of Jayson’s injury was the concurrent failure of petitioners to
prevent the foreseeable mishap that occurred during the conduct of the science experiment. Petitioners were
negligent by failing to exercise the higher degree of care, caution and foresight incumbent upon the school, its
administrators and teachers.

Article 218 of the Family Code, in relation to Article 2180 of the Civil Code, bestows special parental authority on the
following persons with the corresponding obligation, thus:

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall
have special parental authority and responsibility over the minor child while under their supervision, instruction or
custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the
school, entity or institution.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also
for those of persons for whom one is responsible.

xxxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their custody.

Petitioners’ negligence and failure to exercise the requisite degree of care and caution is demonstrated by the
following:
 1. Petitioner school did not take affirmative steps to avert damage and injury to its students although it had
full information on the nature of dangerous science experiments conducted by the students during class;

2. Petitioner school did not install safety measures to protect the students who conduct experiments in class;

3. Petitioner school did not provide protective gears and devices, specifically goggles, to shield students
from expected risks and dangers; and

4. Petitioner Tabugo was not inside the classroom the whole time her class conducted the experiment,
specifically, when the accident involving Jayson occurred. In any event, the size of the class—fifty (50)
students— conducting the experiment is difficult to monitor.

Moreover, petitioners cannot simply deflect their negligence and liability by insisting that petitioner Tabugo gave
specific instructions to her science class not to look directly into the heated compound. Neither does our ruling in St.
Mary’s preclude their liability in this case.

Unfortunately for petitioners, St. Mary’s is not in point. In that case, respondents thereat admitted the documentary
exhibits establishing that the cause of the accident was a mechanical defect and not the recklessness of the minor,
James Daniel II, in driving the jeep. We held, thus:

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of James Daniel II. x x x.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had
possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the
jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of
the steering wheel guide of the jeep, must be pinned on the minor’s parents primarily. The negligence of petitioner
St. Mary’s Academy was only a remote cause of the accident. Between the remote cause and the injury, there
intervened the negligence of the minor’s parents or the detachment of the steering wheel guide of the jeep. 11

In marked contrast, both the lower courts similarly concluded that the mishap which happened during the science
experiment was foreseeable by the school, its officials and teachers. This neglect in preventing a foreseeable injury
and damage equates to neglect in exercising the utmost degree of diligence required of schools, its administrators
and teachers, and, ultimately, was the proximate cause of the damage and injury to Jayson. As we have held in St.
Mary’s, "for petitioner [St. Mary’s Academy] to be liable, there must be a finding that the act or omission considered
as negligent was the proximate cause of the injury caused because the negligence must have a causal connection
to the accident."12

As regards the contributory negligence of Jayson, we see no need to disturb the lower courts’ identical rulings
thereon:

As earlier discussed, the proximate cause of [Jayson’s] injury was the explosion of the heated compound
independent of any efficient intervening cause. The negligence on the part of [petitioner] Tabugo in not making sure
that the science experiment was correctly conducted was the proximate cause or reason why the heated compound
exploded and injured not only [Jayson] but his classmates as well. However, [Jayson] is partly responsible for his
own injury, hence, he should not be entitled to recover damages in full but must likewise bear the consequences of
his own negligence. [Petitioners], therefore, should be held liable only for the damages actually caused by their
negligence.13

Lastly, given our foregoing ruling, we likewise affirm the lower courts’ award of actual and moral damages, and grant
of attorney’s fees. The denial of petitioners’ counterclaim is also in order.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 68367 is
AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A.
AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A.
AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A.
AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P.
DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural
guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO
ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of
his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and
deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito
Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's
parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-
Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and
two other students, through their respective parents. The complaint against the students was later dropped. After
trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of
P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral
damages, exemplary damages, and attorney's fees .3 On appeal to the respondent court, however, the decision was
reversed and all the defendants were completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school
of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the
school at the time of the incident as the semester had already ended, that there was no clear identification of the
fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in
its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these
facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit that
Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no
longer in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an
earlier incident which they claim underscores the negligence of the school and at least one of the private
respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the
principal or taking any further action .6 As Gumban was one of the companions of Daffon when the latter fired the
gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from Gumban
and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however,
that there is no proof that the gun was the same firearm that killed Alfredo.
Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is
invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde
v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion
for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a
Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over
its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was
found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father
was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort
committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter
dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L.
Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school
authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and
(2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades"
should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade
during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits
parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also
not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the
custody requirement had not been proved as this "contemplates a situation where the student lives and boards with
the teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice
J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30,
1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows
in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not
boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court
declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means
the protective and supervisory custody that the school and its heads and teachers exercise over the
pupils and students for as long as they are at attendance in the school, including recess time. There
is nothing in the law that requires that for such liability to attach, the pupil or student who commits
the tortious act must live and board in the school, as erroneously held by the lower court, and
the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been
set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to
the dissenting opinion, that even students already of age were covered by the provision since they were equally in
the custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for
retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed by
students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that
"since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal
provision to academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to
be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic
institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers
even establishments which are technically not schools of arts and trades, and, if so, when the offending student is
supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question
should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical
or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such
student, following the first part of the provision. This is the general rule. In the case of establishments of arts and
trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other
words, teachers in general shall be liable for the acts of their students except where the school is technical in nature,
in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula
singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades"
to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in
part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades
and not to academic ones. What substantial difference is there between them insofar as concerns
the proper supervision and vice over their pupils? It cannot be seriously contended that an academic
teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of
third Persons, so long as they are in a position to exercise authority and Supervision over the pupil.
In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art.
1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version of the equivalent terms "preceptores y
artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in
some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the
exercise of their authority, it would seem clear that where the parent places the child under the
effective authority of the teacher, the latter, and not the parent, should be the one answerable for the
torts committed while under his custody, for the very reason/that the parent is not supposed to
interfere with the discipline of the school nor with the authority and supervision of the teacher while
the child is under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned. The same vigilance is expected from the teacher over the students
under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the
Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts
and trades liable for an injury caused by any student in its custody but if that same tort were committed in an
academic school, no liability would attach to the teacher or the school head. All other circumstances being the
same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the
non-academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis
only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that
vigilance simply because the school is academic in nature and for increasing such vigilance where the school is
non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a
result of the operations of the school or its equipment. The injury contemplated may be caused by any student
regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by
simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if
the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts
committed by his students, why is it the head of the school only who is held liable where the injury is caused in a
school of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to
the head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades
were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on
the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was
personally involved in the task of teaching his students, who usually even boarded with him and so came under his
constant control, supervision and influence. By contrast, the head of the academic school was not as involved with
his students and exercised only administrative duties over the teachers who were the persons directly dealing with
the students. The head of the academic school had then (as now) only a vicarious relationship with the students.
Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and
trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and
trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal
contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the
provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into
account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts
and trades over the students. Is such responsibility co-extensive with the period when the student is actually
undergoing studies during the school term, as contended by the respondents and impliedly admitted by the
petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v.
Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the
student should be within the control and under the influence of the school authorities at the time of the occurrence of
the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the
start of classes and ending upon the close thereof, and excluding the time before or after such period, such as the
period of registration, and in the case of graduating students, the period before the commencement exercises. In the
view of the Court, the student is in the custody of the school authorities as long as he is under the control and
influence of the school and within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither
should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain
requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and
the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot
consider himself released altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective,
in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the
enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues.
Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his
classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and
subject to the discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in
practically the same way that the parents are responsible for the child when he is in their custody. The teacher-in-
charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the
pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury,
the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual
physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of
such influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held responsible
if the tort was committed within the premises of the school at any time when its authority could be validly exercised
over him.
In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or
the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may
be held to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat
superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus
paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to
answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180,
which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco
parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be
liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him
regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the
technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more
favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc
that the school may be unduly exposed to liability under this article in view of the increasing activism among the
students that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure.
Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable.
Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the
acts or omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms
should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed
by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as long as they are in the school premises and presumably
under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of
responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent
can expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It
need not be stressed that such dependence includes the child's support and sustenance whereas submission to the
teacher's influence, besides being coterminous with the period of custody is usually enforced only because of the
students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so
should be held to a greater accountability than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades
is responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less
tractable than the minor — then there should all the more be justification to require from the school authorities less
accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself
is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's
control, there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the
student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-
Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school
auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was
there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the
premises of the school is a legitimate purpose that would have also brought him in the custody of the school
authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the
teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body
and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and
thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge
of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his
physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of
Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in
enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or
condoned their non-observance. His absence when the tragedy happened cannot be considered against him
because he was not supposed or required to report to school on that day. And while it is true that the offending
student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was
committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On
the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of
the school regulations, in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view
of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned
the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was
clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to
the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the
petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article
because only the teacher or the head of the school of arts and trades is made responsible for the damage caused
by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private
respondents for none of them has been found to have been charged with the custody of the offending student or has
been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced
that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in
the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply
sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we
nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they
have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.