1) Adoption
2) executed “whimsically or arbitrarily” in a
THIRD DIVISION
[ G.R. NO. 154994 AND 156254, June 28,
2005 ]
JOYCELYN PABLO-GUALBERTO,
PETITIONER, VS. CRISANTO
RAFAELITO GUALBERTO V,
RESPONDENT.  question that a court of competent
CRISANTO RAFAELITO G
GUALBERTO V, PETITIONER, COURT
OF APPEALS; HON. HELEN B.
RICAFORT, PRESIDING JUDGE,
REGIONAL TRIAL COURT
PARAÑAQUE CITY, BRANCH 260; AND
JOYCELYN D. PABLO-GUALBERTO,
RESPONDENTS.
Actions;  Pleadings and Practice; Post
Office; Registry Receipts; The date of filing
may be shown either by the post office stamp
on the envelope or by the registry receipt.—
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, and the deadline was thus
extended until October 24, 2002. A further
perusal of the records reveals that copies of the
Petition were sent to this Court and to the
parties by registered mail at the Biñan, Laguna
Post Office on October 24, 2002. This is the
date clearly stamped on the face of the
envelope and attested to in the Affidavit of
Service 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.” 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 orby 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.
Same;  Same; Same;  Same; The
Registry Bill does not reflect the actual
mailing date—it is the postal Registration
Book 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.—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. The Registry Bill does not
reflect the actual mailing date. Instead, it is the
postal Registration Book 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.
Same;  Certiorari; Words and
Phrases;  Grave abuse of discretion is
committed when an act is 1) done contrary to
the Constitution, the law or jurisprudence, 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.”—To
begin with, grave abuse of discretion is
committed when an act is 1) done contrary to
the Constitution, the law or jurisprudence; or
tragedy where a mother has seen her baby torn
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.” 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.
Same; Same;  There can be no
jurisdiction is vested with the authority to
resolve even unassigned issues.—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. This truism
applies with more force when the relief granted
has been specifically prayed for, as in this case.
Same; Same;  Pleadings and
Practice;  Verifications; Under Rule 38 of the
Rules of Court, verification is required only
when relief is sought from a final and
executory Order.—Joycelyn’s Motion need
not have been verified because of the
provisional nature of the April 3, 2002 Order.
Under Rule 38 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.
Same; Judgments;  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.—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. The provision reads: “SECTION 1.
Rendition of judgments and final orders.—
A judgment or final order determining the
merits of the caseshall 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.”
Parents and Children;  Custody;  The
award of temporary custody is provisional
and subject to change as circumstances may
warrant—even the award of child custody
after a judgment on a marriage annulment is
not permanent as it may be reexamined and
adjusted if and when the parent who was
given custody becomes unfit.—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.
Same; Same;  The general rule that
children under seven years of age shall not be
separated from their mother finds its raison
d’être in the basic need of minor children for
their mother’s loving care.—The general rule
that children under seven years of age shall not
be separated from their mother finds its raison
d’être in the basic need of minor children for
their mother’s loving care. 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
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.”
Same;  Same; Statutory
Construction; 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.—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. In the present case, the
parents are living separately as a matter of fact.
Same;  Same; Convention on the
Rights of the Child; 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.—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.” 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. 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. 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.
Same;  Same; The so-called “tender-
age presumption” under Rule 213 of the
Family Code may be overcome only by
compelling evidence of the mother’s
unfitness.—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. The so-called “tender-age
presumption”under Article 213 of the Family
Code may be overcome only
by compelling evidence of the mother’s
unfitness. The mother has been declared
unsuitable to have custody of her children in
one or more of the following instances:
neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity
or affliction with a communicable disease.
Same;  Same; Homosexuality; Sexual
preference or moral laxity alone does not
prove parental neglect or incompetence—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.—
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.
But sexual preference or moral
laxity alonedoes 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. 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.
Same;  Same; Same;  It is not enough
for a father to show merely that a mother is 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.—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.
Same;  Same; Habeas Corpus; A writ
of habeas corpus may be issued only when
the “rightful custody of any person is
withheld from the person entitled thereto.”—
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,” a situation that does
not apply here.
Same;  Same; Preliminary Mandatory
Injunctions; 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.—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.” 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. Besides, such
an injunction would serve no purpose, now that
the case has been decided on its merits.
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.  follows:
The first is a Petition for Review[1] filed by
Joycelyn Pablo-Gualberto under Rule 45 of the
Rules of Court, assailing the August 30, 2002
Decision[2] of the Court of Appeals (CA) in
CA-GR SP No. 70878.  The assailed Decision
disposed as follows:
“WHEREFORE, premises considered, the
Petition for Certiorari is hereby GRANTED.  ‘The authority of the father and mother over
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 Certiorari[4] filed
by Crisanto Rafaelito Gualberto V under Rule
65 of the Rules of Court, charging the
appellate court with grave abuse of discretion
for denying his Motion for Partial
Reconsideration of the August 30, 2002
Decision.  The denial was contained in the
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
‘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.’
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.
‘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.  of jurisdiction when, in its August 30, 2002
The father should however be entitled to spend
time with the minor.  These do not appear
compelling reasons to deprive him of the
company of his child.
‘When [Joycelyn] appeared before this Court,
she stated that she has no objection to the
father visiting the child even everyday
provided it is in Mindoro.
‘The Court hereby grants the mother,
[Joycelyn], the custody of Crisanto Rafaello P.
Gualberto, with [the] right of [Crisanto] to
have the child with him every other weekend.
‘WHEREFORE:
1. The [M]otion to Dismiss is hereby
DENIED;
2. Custody pendente lite is hereby given to the
mother Joycelyn Pablo Gualberto with the
right of the father, x x x [Crisanto], to have
him every other week-end.
3. Parties are admonished not to use any other
agencies of the government like the CIDG to
interfere in this case and to harass the
parties.’”[6]
In a Petition for Certiorari[7] before the CA,
Crisanto charged the Regional Trial Court
(Branch 260) of 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.  Prematurity of the Petition
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
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 mail[12] at the
Biñan, Laguna Post Office on October 24,
2002.  This is the date clearly stamped on the
face of the envelope[13] and attested to in the
Affidavit of Service[14]accompanying the
Petition.  Petitioner Joycelyn explained that the
filing and the service had been made by
registered mail due to the “volume of delivery
assignments and the lack of a regular
messenger.”[15]
The Petition is, therefore, considered to have
been filed on October 24, 2002, its mailing
date as shown by the post office stamp on the
envelope.  The last sentence of Section 3 of
Rule 13 of the Rules provides that the date of
filing may be shown either by the post office
stamp on the envelope or by the registry
receipt.  Proof of its filing, on the other hand,
is shown by the existence of the petition in the
record, pursuant to Section 12 of Rule 13.[16]
The postmaster satisfactorily clarifies that
Registry Bill No. 88, which shows the date
November 2, 2002, merely discloses when the
mail matters received by the 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.
As to the alleged prematurity of the Petition of
Joycelyn, Crisanto points out that his Urgent
Motion for Partial Reconsideration[19] was still
awaiting resolution by the CA when she filed
her Petition before this Court on October 24,
2002.  The CA ruled on the Motion only on
November 27, 2002.
The records show, however, that the Motion of
Crisanto was mailed only on September 12,
2002.  Thus, on September 17, 2002, when
Joycelyn filed her Motion for Extension of
Time to file her Petition for Review, she might
have still been unaware that he had moved for
a partial reconsideration of the August 20,
2002 CA Decision.  Nevertheless, upon being
notified of the filing of his Motion, she should
have manifested that fact to this Court.
With the CA’s final denial of Crisanto’s
Motion for Reconsideration, Joycelyn’s lapse
may be excused in the interest of resolving the
substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the
CA gravely abused its discretion when it
ordered the trial court judge to “consider, hear
and resolve the motion to lift the award of
custody pendente lite” without any proper
motion by Joycelyn and after the April 3, 2002
Order of the trial court had become final and
executory.  The CA is also charged with grave
abuse of discretion for denying his Motion for
Partial Reconsideration without stating the
reasons for the denial, allegedly in
contravention of Section 1 of Rule 36 of the
Rules of Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper
To begin with, grave abuse of discretion is
committed when an act is 1) done contrary to
the Constitution, the law or jurisprudence;[20] or
2) executed “whimsically or arbitrarily” in a
manner “so patent and so gross as to amount to
an evasion of a positive duty, or to a virtual
refusal to perform the duty enjoined.”[21]  What
constitutes grave abuse of discretion is such
capricious and arbitrary exercise of judgment
as that which is equivalent, in the eyes of the
law, to lack of jurisdiction.[22]
On the basis of these criteria, we hold that the
CA did not commit grave abuse of discretion.
First, there can be no question that a court of
competent jurisdiction is vested with the
authority to resolve even unassigned issues.  It
can do so when such a step is indispensable or
necessary to a just resolution of issues raised in
a particular pleading or when the unassigned
issues are inextricably linked or germane to
those that have been pleaded.[23]  This truism
applies with more force when the relief granted
has been specifically prayed for, as in this case.
Explicit in the Motion to Dismiss[24] filed by
Joycelyn before the RTC is her ancillary
prayer for the court to lift and set aside its
April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son.  must be awarded custody of the child.
Indeed, the necessary consequence of granting
her Motion to Dismiss would have been the
setting aside of the Order awarding Crisanto
provisional custody of the child.  Besides, even
if the Motion to Dismiss was denied -- as
indeed it was -- the trial court, in its discretion
and if warranted, could still have granted the
ancillary prayer as an alternative relief.
Parenthetically, Joycelyn’s Motion need not
have been verified because of the provisional
nature of the April 3, 2002 Order. Under Rule
38[25] of the Rules of Court, verification is
required only when relief is sought from a final
and executory Order.  Accordingly, the court
may set aside its own orders even without a
proper motion, whenever such action is
warranted by the Rules and to prevent a
miscarriage of justice.[26]
Denial of the Motion for
Reconsideration Proper
Second, the requirement in Section 1 of Rule
36 (for judges to state clearly and distinctly the
reasons for their dispositions) refers only to
decisions and final orders on the merits, not to
those resolving incidental matters.[27]  The
provision reads:
“SECTION 1.  Rendition of judgments and
final orders. – A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by the
judge, stating clearly and distinctly the facts
and the law on which it is based, signed by
him, and filed with the clerk of court.” (Italics
supplied)
Here, the declaration of the nullity of marriage
is the subject of the main case, in which the
issue of custody pendente lite is an incident.  to be unduly hurt.  If she has erred, as in cases
That custody and support of common children
may be ruled upon by the court while the
action is pending is provided in Article 49 of
the Family Code, which we quote :
“Art. 49. During the pendency of the
action[28] and in the absence of adequate
provisions in a written agreement between the
spouses, the Court shall provide for the support
of the spouses and the custody and support of
their common children. x x x.”
Clearly then, the requirement cited by Crisanto
is inapplicable.  In any event, in its questioned
Resolution, the CA clearly stated that it “could
not find any cogent reason” to reconsider and
set aside the assailed portion of its August 30,
2002 Decision.
The April 3, 2002 Order Not
Final and Executory
Third, the award of temporary custody, as the
term implies, is provisional and subject to
change as circumstances may warrant.  In this
connection, there is no need for a lengthy
discussion of the alleged finality of the April 3,
2002 RTC Order granting Crisanto temporary
custody of his son.  For that matter, even the
award of child custody after a judgment on a
marriage annulment is not permanent; it may
be reexamined and adjusted if and when the
parent who was given custody becomes unfit.
[29]
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the
marriage inevitably results in separation, the
bitterest tussle is often over the custody of their
children.  The Court is now tasked to settle the
opposing claims of the parents for
custody pendente lite of their child who is less
than seven years old.[30]  On the one hand, the
mother insists that, based on Article 213 of the
Family Code, her minor child cannot be
separated from her.  On the other hand, the
father argues that she is “unfit” to take care of
their son; hence, for “compelling reasons,” he
Article 213 of the Family Code[31] provides:
“ART. 213.  In case of separation of the
parents, parental authority shall be exercised
by the parent designated by the court.  The
court shall take into account all relevant
considerations, especially the choice of the
child over seven years of age, unless the parent
chosen is unfit.
No child under seven years of age shall be
separated from the mother, unless the court
finds compelling reasons to order otherwise.”
This Court has held that when the parents are
separated, legally or otherwise, the foregoing
provision governs the custody of their child. [32]  seven years, unless such a separation is
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
of adultery, the penalty of imprisonment and
the (relative) divorce decree will ordinarily be
sufficient punishment for her.  Moreover, her
moral dereliction will not have any effect upon
the baby who is as yet unable to understand the
situation.” (Report of the Code Commission, p.
12)
A similar provision is embodied in Article 8 of
the Child and Youth Welfare Code
(Presidential Decree No. 603).[34]  Article 17 of
the same Code is even more explicit in
providing for the child’s custody under various
circumstances, specifically in case the parents
are separated.  It clearly mandates that “no
child under five years of age shall be separated
from his mother, unless the court finds
compelling reasons to do so.”  The provision is
reproduced in its entirety as follows:
“Art. 17.  Joint Parental Authority. – The
father and the mother shall exercise jointly just
and reasonable parental authority and
responsibility over their legitimate or adopted
children.  In case of disagreement, the father’s
decision shall prevail unless there is a judicial
order to the contrary.
“In case of the absence or death of either
parent, the present or surviving parent shall
continue to exercise parental authority over
such children, unless in case of the surviving
parent’s remarriage, the court for justifiable
reasons, appoints another person as guardian.
“In case of separation of his parents, no child
under five years of age shall be separated from
his mother, unless the court finds compelling
reasons to do so.” (Italics supplied)
The above mandates reverberate in Articles
211, 212 and 213 of the Family Code.  It is
unmistakable from the language of these
provisions that Article 211[35] was derived from
the first sentence of the aforequoted Article 17;
Article 212,[36] from the second sentence; and
Article 213,[37] save for a few additions, from
the third sentence.  It should be noted that the
Family Code has reverted to the Civil Code
provision mandating that a child below seven
years should not be separated from the mother.
[38]
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,[39] the Court
held that the use of “shall” in Article 363 of the
Civil Code and the observations made by the
Code Commission underscore the mandatory
character of the word.[40]  Holding in that case
that it was a mistake to deprive the mother of
custody of her two children, both then below
the age of seven, the Court stressed:
“[Article 363] prohibits in no uncertain terms
the separation of a mother and her child below
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 compelling evidence of the
mother’s unfitness.  The mother has been
declared unsuitable to have custody of her
children in one or more of the following
instances: neglect, abandonment,
unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of
the child, insanity or affliction with a
communicable disease.[49]
Here, Crisanto cites immorality due to alleged
lesbian relations as the compelling reason to
deprive Joycelyn of custody.  It has indeed
been held that under certain circumstances, the
mother’s immoral conduct may constitute a
compelling reason to deprive her of custody.[50]
But sexual preference or moral
laxity alone does not prove parental neglect or
incompetence.  Not even the fact that a mother
is a prostitute or has been unfaithful to her
husband would render her unfit to have
custody of her minor child.[51]  To deprive the
wife of custody, the husband must clearly
establish that her moral lapses have had an
adverse effect on the welfare of the child or
have distracted the offending spouse from
exercising proper parental care.[52]
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.
2) Adoption
SECOND DIVISION
G.R. No. 97906 May 21, 1992
REPUBLIC OF THE
PHILIPPINES, petitioner, 
vs.
COURT OF APPEALS and MAXIMO
WONG, respondents.
Public Attorney's Office for private
respondent.
Civil Law; Family
Code;  Adoption;  Change of name;  From the
very wordings of the law, it may be inferred
that the use of the surname of the adopter by
the adopted child is both an obligation and a
right.—Title XIII, Book I of the Civil Code, in
Articles 364 to 380, provides the substantive
rules which regulate the use of surnames.
Considering the subject and personalities
involved in this present review, particular
attention must be called to Article 365 which
mandates that "(a)n adopted child shall bear
the surname of the adopter," in correlation with
Article 341 on the effects of adoption, among
which is to "(e)ntitle the adopted person to use
the adopter's surname." This same entitlement
of an adopted child is maintained in Article
39(3), Title II of Presidential Decree No, 603,
otherwise known as the Child and Youth
Welfare Code. More recently, Executive Order
No. 209, as amended by Executive Order No.
227, or the Family Code, echoes the same
statutory right of an adopted child to use the
surname of the adopter. Clearly, from the very
wordings of the law, it may be inferred that the
use of the surname of the adopter by the
adopted child is both an obligation and a right.
Same;  Same; Same;  Same; No person
can change his name or surname without
judicial authority.—Under Article 376 of the
Civil Code, "(n)o person can change his name
or surname without judicial authority." The
application for change of name thereunder
involves a special proceeding governed by and
conducted under the strictures of Rule 103 of
the Rules of Court and one which involves
substantial changes, with the declared
objective of such judicial proceedings being
the prevention of fraud. The purpose of the
statutory procedure authorizing a change of
personal name is simply to have, wherever
possible, a record of the change, and in
keeping with the object of the statute, a court
to which application is made should normally
make its decree recording such change of
name.
Same;  Same; Same;  Same; A change
of name is a proceeding in rem, strict
compliance with all jurisdictional
requirements essential to vest the court with
jurisdiction.—A change of name is a special
proceeding to establish the status of a person
involving his relation with others, that is, his
legal position in, or with regard to, the rest of
the community. It is a proceeding in rem and,
as such, strict compliance with all
jurisdictional requirements, particularly on
publication, is essential in order to vest the
court with jurisdiction thereover. For this
purpose, the only name that may be changed is
the true or official name recorded in the civil
register.
Same;  Same; Same;  Same; It is a
privilege granted only upon a showing of a
proper or reasonable cause or compelling
reason.—Turning now to the case at bar, we
are guided by the jurisprudential dictum that
the State has an interest in the names borne by
individuals and entities for the purpose of
identification, and a change of name is not a
matter of right but of sound judicial discretion,
to be exercised in the light of reasons adduced
and the consequences that will likely follow; it
is a privilege which may be granted only upon
a showing of a proper or reasonable cause or
compelling reason therefor.
Same; Same;  Same; Same;  To justify
a request for change of name, petitioner must
show not only some proper or compelling
reason therefor but also that he will be
prejudiced by the use of his true and official
name.—It bears stressing at this point that to
justify a request for change of name, petitioner
must show not only some proper or compelling
reason therefor but also that he will be
prejudiced by the use of his true and official
name. Among the grounds for change of name
which have been held valid are: (a) When the
name is ridiculous, dishonorable or extremely
difficult to write or pronounce; (b) When the
change results as a legal consequence, as in
legitimation; (c) When the change will avoid
confusion; (d) Having continuously used and
been known since childhood by a Filipino
name, unaware of her alien parentage; (e) A
sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and
without prejudicing anybody; and (f) When the
surname causes embarrassment and there is no
showing that the desired change of name was
for a fraudulent purpose or that the change of
name would prejudice public interest.
Same; Same;  Same; Same;  In
granting or denying petitions for change of
name, the question of proper and reasonable
cause is left to the sound discretion of the
court.—In granting or denying petitions for
change of name, the question of proper and
reasonable cause is left to the sound discretion
of the court. The evidence presented need only
be satisfactory to the court and not all the best
evidence available. Summarizing, in special
proceedings for change of name, what is
involved is not a mere matter of allowance or
disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of
the justifications advanced in support thereof,
mindful of the consequent results in the event
of its grant and with the sole prerogative for
making such determination being lodged in the
courts.
Same; Same;  Same; Same;  The
change of the surname of the adopted child is
more an incident rather than the object of
adoption proceedings.—While it is true that
the statutory fiat under Article 365 of the Civil
Code is to the effect that an adopted child shall
bear the surname of the adopter, it must
nevertheless be borne in mind that the change
of the surname of the adopted child is more an
incident rather than the object of adoption
proceedings. The act of adoption fixes a
status, viz., that of parent and child. More
technically, it is an act by which relations of
paternity and affiliation are recognized as
legally existing between persons not so related
by nature.
Same; Same;  Same; Same;  A petition
for change of name is a remedy allowed
under our law only by way of exception to the
mandatory provisions of the Civil Code on the
use of surnames.—A petition for change of
name is a remedy allowed under our law only
by way of exception to the mandatory
provisions of the Civil Code on the use of
surnames. The law fixes the surname that may
be used by a person, at least inceptively, and it
may be changed only upon judicial permission
granted in the exercise of sound discretion.
Same; Same;  Same; Same;  A change
of name does not define or effect a change in
one's existing family relations or in the rights
and duties flowing therefrom.—Concordantly,
we have heretofore held that a change of name
does not define or effect a change in one's
existing family relations or in the rights and
duties flowing therefrom. It does not alter one's
legal capacity, civil status or citizenship; what
is altered is only the name.
REGALADO, J.:
Petitioner seeks to set aside the judgment of
respondent Court of 
Appeals 1 in affirmance of the decision of the
court a quo  2 granting the petition filed by
herein private respondent Maximo Wong for
the change of his name to Maximo Alcala, Jr.
which was his name prior to his adoption by
Hoong Wong and Concepcion Ty Wong.
The facts are undisputed. Private respondent
Maximo Wong is the legitimate son of
Maximo Alcala, Sr. and Segundina Y. Alcala.
When he was but two and a half years old and
then known as Maximo Alcala, Jr., and his
sister Margaret Alcala, was then nine years old,
they were, with the consent of their natural
parents 3 and by order of the court in Special
Case No. 593 4 issued on September 9, 1967,
adopted by spouses Hoong Wong and
Concepcion Ty Wong, both naturalized
Filipinos. Hoong Wong, now deceased, was an
insurance agent while Concepcion Ty Wong
was a high school teacher. They decided to
adopt the children as they remained childless
after fifteen years of marriage. The couples
showered their adopted children with parental
love and reared them as their own children.
Upon reaching the age of twenty-two, herein
private respondent, by then married and a
junior Engineering student at Notre Dame
University, Cotabato City, filed a petition to
change his name to Maximo Alcala, Jr. It was
averred that his use of the surname Wong
embarrassed and isolated him from his
relatives and friends, as the same suggests a
Chinese ancestry when in truth and in fact he is
a Muslim Filipino residing in a Muslim
community, and he wants to erase any
implication whatsoever of alien nationality;
that he is being ridiculed for carrying a
Chinese surname, thus hampering his business
and social life; and that his adoptive mother
does not oppose his desire to revert to his
former surname.
As earlier stated, on July 2, 1986, the matter
was resolved in favor of private respondent,
the trial court decreeing that, the jurisdictional
requirements having been fully complied with,
petitioner's prayer to change his name from
Maximo Wong to Maximo Alcala, Jr. was
granted. 5 On appeal to respondent court, and
over the opposition of petitioner Republic
through the Solicitor General, the decision of
the court below was affirmed in full, hence,
this petition for review on certiorari.
The lone issue to be settled is whether or not
the reasons given by private respondent in his
petition for change of name are valid,
sufficient and proper to warrant the granting of
said petition.
The Solicitor General contends that private
respondent's allegations of ridicule and/or
isolation from family and friends were
unsubstantiated and cannot justify the petition
for change of name. He claims that for private
respondent to cast aside the name of his
adoptive father is crass ingratitude to the
memory of the latter and to his adoptive
mother who is still alive, despite her consent to
the petition for change of name. Further, the
Solicitor General posits that the reversion of
Maximo Wong to his old name violates
Articles 341 and 365 of the Civil Code, which
requires an adopted child to use the surname of
the adopter, and would identify him with his
parents by nature, thus giving the impression
that he has severed his relationship with his
adoptive parents. 6
In refutation, private respondent argues that he
did as the law required, that is, upon adoption
he used the surname of the adopter. However,
being already emancipated, he can now decide
what is best for and by himself. It is at this
time that he realized that the Chinese name he
carries causes him undue ridicule and
embarrassment and affects his business and
social life. In fact, his adoptive mother, being
aware of his predicament, gave her consent to
the petition for change of name, albeit making
it clear that the same shall in no way affect the
legal adoption, and even underwent the rigors
of trial to substantiate her sworn statement. If
his adoptive mother does not take offense nor
feel any resentment, abhorrence or insecurity
about his desire to change his name, private
respondent avers that there can be no possible
prejudice on her, much less the State. 7
We feel that we should preface our review of
this case with a clear comprehension of the
legal significance of a person's name. For all
practical and legal purposes, a man's name is
the designation by which he is known and
called in the community in which be lives and
is best known. It is defined as the word or
combination of words by which a person is
distinguished from other individuals and, also,
as the label or appellation which he bears for
the convenience of the world at large
addressing him, of in speaking of or dealing
with him. 8 Names are used merely as one
method of indicating the identity of persons;
they are descriptive of persons for
identification, since, the identity is the essential
thing and it has frequently been held that,
when identity is certain, a variance in, or
misspelling of, the name is immaterial. 9
The names of individuals usually have two
parts: the given name or proper name, and the
surname or family name. The given or proper
name is that which is given to the individual at
birth or baptism, to distinguish him from other
individuals. The name or family name is that
which identifies the family to which he
belongs and is continued from parent to child.
The given name may be freely selected by the
parents for the child; but the surname to which
the child is entitled is fixed by law. 10
A name is said to have the following
characteristics: (1) It is absolute, intended to
protect the individual from being confused
with others. (2) It is obligatory in certain
respects, for nobody can be without a name.
(3) It is fixed, unchangeable, or immutable, at
least at the start, and may be changed only for
good cause and by judicial proceedings. (4) It
is outside the commerce of man, and,
therefore, inalienable and intransmissible by
act inter vivos  or mortis causa. (5) It is
imprescriptible. 11
Title XIII, Book I of the Civil Code, in Articles
364 to 380, provides the substantive rules
which regulate the use of surnames.
Considering the subject and personalities
involved in this present review, particular
attention must be called to Article 365 which
mandates that "(a)n adopted child shall bear
the surname of the adopter," in correlation with
Article 341 on the effects of adoption, among
which is to"(e)ntitle the adopted person to use
the adopter's surname." This same entitlement
of an adopted child is maintained in Article
39(3), Title II of Presidential Decree No. 603,
otherwise known as the Child and Youth
Welfare Code. More recently, Executive Order
No. 209, as amended by Executive Order No.
227, or the Family Code, echoes the same
statutory right of an adopted child to use the
surname of the adopter. 12 Clearly, from the
very wordings of the law, it may be inferred
that this use of the surname of the adopter by
the adopted child is both an obligation and a
right.
Under Article 376 by the Civil Code, "(n)o
person can change his name or surname
without judicial authority." The application for
change of name thereunder involves a special
proceeding governed by and conducted under
the strictures of Rule 103 of the Rules of Court
and one which involves substantial changes,
with the declared objective of such judicial
proceedings being the prevention of fraud. The
purpose of the statutory procedure authorizing
a change of personal name is simply to have,
wherever possible, a record of the change, and
in keeping with the object of the statute, court
to which application is made should normally
make its decree recording such change of
name. 13
A change of name is a special proceeding to
establish the status of a person involving his
relation with others, that is, his legal position
in, or with regard to, the rest of the community.
It is a proceeding in rem 14 and, as such, strict
compliance with all jurisdictional
requirements, particularly on publication, is
essential in order to vest the court with
jurisdiction thereover. 15 For this purpose, the
only name that may be changed is the true or
official name recorded in the civil register. 16
To digress a little for purposes of clarification,
the change of name contemplated under Article
376 and reglementarily implemented by Rule
103 must not be confused with and cannot be
effected through the summary proceeding
proposed in Article 412 of the some Code, as
procedurally regulated by Rule 108 of the
Rules, which refers only to correction of
clerical errors, such as those which are visible
to the eye or obvious to the understanding, or
an error made by a clerk or transcriber, or a
mistake in copying or writing, or some
harmless or innocuous change, 17 and not those
which will involve substantial changes. 18
Turning now to the case at bar, we are guided
by the jurisprudential dictum that the State has
an interest in the names borne by individuals
and entities for the purpose of identification,
and a change of name is not a matter of right
but of sound judicial discretion, to be exercised
in the light of reasons adduced and the
consequences that will likely follow; 19 it is a
privilege which may be granted only upon a
showing of a proper or reasonable cause or
compelling reason therefor. 20
We find unacceptable the assertion of the
Solicitor General that private respondent's
allegation of ridicule and embarrassment due
to the use of his present surname is
unsubstantiated.
The testimony of private respondent in the
lower court bears out the existence of valid
cause in his bid for change of name:
ATTY. DUMAMBA:
Q Now, after adoption, when you
went to school, what did you use as
your surname?
A "Wong," sir.
Q Now, after you adopted the
surname "Wong?" in your studies,
what did you observe?
A I observed that "Wong" as a
surname embarrassed me to my
friends and when I go with Chinese
friends I cannot talk Chinese. I am
living in Campo Muslim, a Muslim
community but no one can believe
that I am Muslim. I have a little
business of Furniture but I have little
(sic) customer because no one
believes me that I am Muslim.
Q You want to inform this
Honorable Court that this family
name you are using which is
"Wong" embarrassed you from (sic)
your friends and relatives and also
cause(d) damage to your business? 
A Yes sir.
x x x           x x x          x x x
ATTY. DUMAMBA:
Q Now, considering that according
to you, you are embarrassed because
of the family name you are using,
your friends shy away from you and
it is a handicap in your business,
what is your desire for the Court to
do in order to help you?
A Change my family name.
Q From "Wong" to what do you
want your surname changed?
A "Alcala, Jr.", sir.
x x x           x x x          x x x
COURT:
Q What is your purpose in changing
your family name from Maximo
Wong to Maximo Alcala, Jr.?
A I feel embarrassed to my friends
and also to my relatives and as I said
I have a little business of furniture
and only a few customers buying for
the fact that they don't believe I am
Muslim.
Cross.
ATTY. SERO:
With the permission of the Honorable Court.
Q Your father's name is Maximo
Alcala, Sr., is he still alive?
A: Yes, sir.
Q And what does your father say to
this proposed changed (sic) of your
name, your family name to your real
family name given to you?
A Yes, sir.
 Q They have no objection to it?
A No, sir.
Q Stated before this Honorable
Court, the purpose why you wanted
to change your name from "Wong"
to "Alcala" is so that to avoid
embarrassment because you are a
Muslim and your Muslim relatives
think that you are Chinese.
A Yes, sir.
Q Not for the purpose to hide
anything or what not?
A No, sir. 21
The foregoing testimony of private respondent
is materially corroborated by the testimony of
private respondent's adoptive mother:
Q Now, what did you observe to
(sic) your son Maximo Wong after
you and your husband adopted him?
A When I adopted him and he used
the surname "Wong" I observed that
some of his relatives, cousins and
friends seem to shy away from him
and despise him in school that is
why I agreed to change his name. 22
We uphold these observations in the decision
of respondent appellate court:
The purpose of the law an allowing
of change of name as contemplated
by the provisions of Rule 103 of the
Rules of Court is to give a person an
opportunity to improve his
personality and to provide his best
interest. (Calderon vs. Republic, 19
SCRA 721). In granting or denying
the petition for change of name, the
question of proper and reasonable
cause is left to the discretion of the
court. The evidence presented need
only be satisfactory to the court and
not all the best evidence available is
required. (Uy vs. Republic, L-
22712, Nov. 25, 1965; Nacionales
vs. Republic,  adopted child is more an incident rather than
L-18067, April 29, 1966; both cases
cited in 1 SCRA 843). In the present
case, We believe that the court a
quo had exercised its discretion
judiciously when it granted the
petition.
From the testimony of petitioner-
appellee and of his adopter mother
Concepcion Ty-Wong, We discern
that said appellee was prompted to
file the petition for change of name
because of the embarrassment and
ridicule his family name "Wong"
brings in his dealings with his
relatives and friends, he being a
Muslim Filipino and living in a
Muslim community. Another cause
is his desire to improve his social
and business life. It has been held
that in the absence of prejudice to
the state or any individual, a sincere
desire to adopt a Filipino name to
erase signs of a former alien
nationality which only hamper(s)
social and business life, is a proper
and reasonable cause for change of
name (Uy vs. Republic, L-22712,
Nov. 25, 1965, Que Liong Sian vs.
Republic, L-23167, Aug. 17, 1967,
20 SCRA 1074). Justice dictates that
a person should be allowed to
improve his social standing as long
as in doing so, he does not cause
prejudice or injury to the interest of
the State or other persons (Calderon
vs. Republic, supra). Nothing
whatsoever is shown in the record of
this case that such prejudice or
injury to the interest of the state or
of other persons would result in the
change of petitioner's name. 23
It bears stressing at this point that to justify a
request for change of name, petitioner must
show not only some proper or compelling
reason therefor but also that he will be
prejudiced by the use of his true and official
name. 24Among the grounds for change of
name which have been held valid are: (a)
When the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b)
When the change results as a legal
consequence, as in legitimation; (c) When the
change will avoid confusion; 25 (d) Having
continuously used and been known since
childhood by a Filipino name, unaware of her
alien parentage; 26 (e) A sincere desire to adopt
a Filipino name to erase signs of former
alienage, all in good faith and without
prejudicing anybody; 27 and (f) When the
surname causes embarrassment and there is no
showing that the desired change of name was
for a fraudulent purpose or that the change of
name would prejudice public interest. 28
In granting or denying petitions for change of
name, the question of proper and reasonable
cause is left to the sound discretion of the
court. The evidence presented need only be
satisfactory to the court and not all the best
evidence available. 29 Summarizing, in special
proceedings for change of name, what is
involved is not a mere matter of allowance or
disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of
the justifications advanced in support thereof,
mindful of the consequent results in the event
of its grant and with the sole prerogative for
making such determination being lodged in the
courts.
While it is true that the statutory fiat under
Article 365 of the Civil Code is to the effect
that an adopted child shall bear the surname of
the adopter, it must nevertheless be borne in
mind that the change of the surname of the
the object of adoption proceedings. 30 The act
of adoption fixes a status, viz., that of parent
and child. More technically, it is an act by
which relations of paternity and affiliation are
recognized as legally existing between persons
not so related by nature. It has been defined as
the taking into one's family of the child of
another as son or daughter and heir and
conferring on it a title to the rights and
privileges of such. The purpose of an adoption
proceeding is to effect this new status of
relationship between the child and its adoptive
parents, the change of name which frequently
accompanies adoption being more an incident
than the object of the proceeding. 31 The
welfare of the child is the primary
consideration in the determination of an
application for adoption. On this point, there is
unanimous agreement. 32
It is the usual effect of a decree of adoption to
transfer from the natural parents to the
adoptive parents the custody of the child's
person, the duty of obedience owing by the
child, and all other legal consequences and
incidents of the natural relation, in the same
manner as if the child had been born of such
adoptive parents in lawful wedlock, subject,
however, to such limitations and restrictions as
may be by statute imposed. 33 More
specifically under the present state of our law,
the Family Code, superseding the pertinent
provisions of the Civil Code and of the Child
and Youth Welfare Code on the
matter, 34 relevantly provides in this wise with
regard to the issue involved in this case: 
Art. 189. Adoption shall have the
following effects:
(1) For civil purposes, the adopted
shall be deemed to be the legitimate
child of the adopters and both shall
acquire the reciprocal rights and
obligations arising from the
relationship of parent and child,
including the right of the adopted to
use the surname of the
adopters; (Emphasis supplied.)
x x x           x x x          x x x
The Solicitor General maintains the position
that to sustain the change of name would run
counter to the behest of Article 365 of the Civil
Code and the ruling in Manuel
vs. Republic  35 that "one should not be allowed
to use a surname which otherwise he is not
permitted to employ under the law," and would
set a bad example to other persons who might
also seek a change of their surnames on lame
excuses. 36
While we appreciate the Solicitor General's
apprehensions and concern, we find the same
to be unfounded. We do not believe that by
reverting to his old name, private respondent
would then be using a name which he is
prohibited by law from using. True, the law
prescribes the surname that a person may
employ; but the law does not go so far as to
unqualifiedly prohibit the use of any other
surname, and only subjects such recourse to
the obtention of the requisite judicial sanction.
What the law does not prohibit, it permits.
If we were to follow the argument of the
Solicitor General to its conclusion, then there
will never be any possibility or occasion for
any person, regardless of status, to change his
name, in view of the supposed subsequent
violation of the legal imperative on the use of
surnames in the event that the petition is
granted. Rule 103 of the Rules of Court would
then be rendered inutile. This could hardly
have been the intendment of the law.
A petition for change of name is a remedy
allowed under our law only by way of
exception to the mandatory provisions of the
Civil Code on the use of surnames. The law
fixes the surname that may be used by a
person, at least inceptively, and it may be
changed only upon judicial permission granted
in the exercise of sound discretion. Section 1 of
Rule 103, in specifying the parties who may
avail of said remedy, uses the generic term
"persons" to signify all natural persons
regardless of status. If a legitimate person may,
under certain judicially accepted exceptional
circumstances, petition the court for a change
of name, we do not see any legal basis or logic
in discriminating against the availment of such
a remedy by an adopted child. In other words,
Article 365 is not an exception, much less can
it bar resort, to Rule 103.
We are of the view that the circumstances
herein obtaining are within the ambit of the
established exceptions and find merit in private
respondent's submission:
Rule 103 of the Rules of Court has
its primordial purpose which (State)
is to give a person in opportunity to
improve his personality and provide
his best interest (Calderon vs.
 Republic, 19 SCRA 721). In the
instant case, the court a quo found
the petition of Maximo Wong for
change of name justifiable after due
hearing, thus its factual findings and
appreciation of testimonies count
heavily and need not be disturbed
unless for strong and cogent reasons
because the trial court is in a better
position to examine real evidence as
well as to observe the demeanor of
the witnesses while testifying in the
case (Baliwag Transit, Inc. vs. CA,
147 SCRA 82). Moreover, the trial
court could take judicial notice of
other existing factors in the
community where herein respondent
lives which it considers material in
its judicious determination of the
case. . . .
Additionally, herein respondent is
already of age and as such he can
decide what is best for him. His
experience with regards (sic) his
social and business dealings is
personal and it is only him (sic) who
can attest to the same. Finding his
predicament's proper remedy is
solely through legal process, herein
respondent accordingly filed a
petition pursuant to Rule 103 of the
Rules of Court which was granted
by the Court a quo. 37
Besides, we have faith in the circumspection of
our lower courts and that, in the exercise of
their discretion, said courts shall consider
petitions for change of name only on cogent
and meritorious grounds as would justify the
granting of such applications. We do not
expect our trial courts to cater or give in to the
whim or caprice of an applicant, aside from the
fact that there is always the safeguard and
corrective interdiction of appellate review.
It is not fair to construe the desired reversion
of private respondent to the use of the name of
his parents by nature as cross ingratitude. To
go by the Solicitor General's suggestion that
private respondent should have his adoption
revoked if he wants to use the surname of his
natural father would be to exact too clear a toll
for making use of an appropriate and valid
remedy available under the law.
Herein private respondent, before he filed the
petition for change of name, asked for his
adoptive mother's permission to do so:
Q Now, in filing this petition for change of
surname, you had talked with your adopted
mother?
A Yes, sir.
Q Did you ask permission from her whether
she wants you to change the surname?
A Yes, sir. 38
True enough, the above testimony of private
respondent was confirmed by his adoptive
mother in this manner:
Q How are you related to Maximo Wong?
A My adopted son.
Q He is your adopted son, did your son talk to
you when he filed this petition for change of
his surname?
A Yes, he even tried to ask me and I said, that a change of name does not define or effect
alright if you want to change. a change in one's existing family relations or in
the rights and duties flowing therefrom. It does
not alter one's legal capacity, civil status or
x x x           x x x          x x x
citizenship; what is altered is only the name. 41
Q Now, when you agreed to the filing of this
WHEREFORE, the petition is DENIED and
petition for change of name, did you reduce
your consent in writing? the decision of respondent Court of Appeals is
hereby AFFIRMED in toto.
A Yes, sir, I agreed also so that his business
will prosper because  SO ORDERED.
he is already Alcila and not Wong because
Wong they said is Chinese. 39
As proof of her assent to the filing of said
petition (her husband having already passed
away), Concepcion Ty Vda. de Wong executed
an affidavit in Cotabato City on May 27, 1985,
with these textual declarations:
That I am the same and identical
person, who is the surviving adapted
(sic) parent of Maximo Wong.
That I personally discovered it
myself from the time my adapted
(sic) son Maximo used the surname
of my late husband Wong, his
relatives and childhood friends shy
away from him because he is
branded as a son of a chinese which
is different from them whose parents
are muslim Filipinos;
That I pity my son who is often
rediculed (sic) by his friends and
relatives because of his family name
Wong, hence, in order not to humper
(sic) his social and business life in
the future, I am voluntarily and of
my own free will without being
forced, coerced, or intimidated give
(sic) my consent to his desire to
change his desire to change his
surname without affecting however
the legal adoption granted by the
Court on September 9, 1967,
making him as one of my legal and
compulsory heir (sic).
That I am executing this
affidavit to attest to the
truth of all the above
mentioned facts and for
all legal intent (sic) and
purposes. 40
There could be no other plausible reason for
private respondent to first secure has adoptive
mother's consent before resorting to the
questioned legal recourse other than the
parental respect and reverence which is owed
by and to be expected of a dutiful child. If
private respondent was such an ingrate, as the
Solicitor General would have us believe, he
would not have bothered to seek his adoptive
mother's counsel. In the same breath, had his
adoptive mother regarded him as an ungrateful
adoptee, she would not have executed the
affidavit above quoted, much less testify in his
behalf at the hearing of his petition.
Moreover, worthy of note is the fact that
private respondent's adoptive mother
emphasized that she executed the above
affidavit "without affecting the legal adoption
granted by the Court on September 9, 1967,
making him as one of my legal and
compulsory heir(s)." This is incontrovertible
proof that she never entertained any misgivings
or reservations with respect to her consent to
his petition. This likewise dispels any possible
confusion as to private respondent's legal status
or adoptive paternity and his successional
rights. Concordantly, we have heretofore held
3) Adoption
EN BANC
G.R. No. L- 22523
September 29, 1967
IN THE MATTER OF THE ADOPTION
OF THE MINOR, EDWIN VILLA Y
MENDOZA. LUIS E. SANTOS, JR. and
EDIPOLA V. SANTOS, petitioners-
appellants,  opinion of the court, that incongruity
vs.
REPUBLIC OF THE
PHILIPPINES, oppositor-appellee.
A. E. Dacanay for petitioners-appellants.
Office of the Solicitor General for oppositor-
appellee.
Civil law;  Adoption;  Relatives by
blood or affinity are not prohibited from
adopting another.—There is no provision in
the law prohibiting relatives, by blood or by
affinity, from adopting one another. To say
that adoption should not be allowed when the
adopter and the adopted are related to each
other, except in those cases enumerated in
Article 338 of the Civil Code, is to preclude
adoption among relatives, no matter how far
removed or in whatever degree that
relationship might be, which is not the policy
of the law.
Same;  Interest and welfare of child to
be adopted should be paramount
consideration.—The interest and welfare of
the child to be adopted should be of paramount
consideration. Adoption statutes, being
humane and salutary and designed to provide
homes, care and education for unfortunate
children, should be construed so as to
encourage the adoption of such children by
persons who can properly rear and educate
them.
Same;  Elder sister may adopt a
younger brother.—The fact that the adoption
in this case will result in dual relationship
between the parties, that the adopted brother
will also be the son of the adopting elder sister,
should not prevent the adoption. One is by
nature, while the other is by fiction of law.
Same;  Same; Relationship established
by adoption is limited to adopting parents.—
The relationship established by the adoption is
limited to the adopting parents and does not
extend to their other relatives, except as
expressly provided by law. Thus, the adopted
child cannot be considered as a relative of the
ascendants and collaterals of the adopting
parents, nor of the legitimate children which
they may have after the adoption, except that
the law imposes certain impediments to
marriage by reason of adoption. Neither are the
children of the adopted considered as
descendants of the adopter.
ANGELES, J.:
An appeal from the decision of the Juvenile
and Domestic Relations Court, in Special
Proceeding No. 0001, dismissing the petition
instituted by the spouses Luis R. Santos, Jr.
and Edipola V. Santos for the adoption of the
minor Edwin Villa y Mendoza.
The issue before Us is, whether or not an elder
sister may adopt a younger brother.
The trial court dismissed the petition reasoning
thus:
A critical consideration in this case
is the fact that the parents of the
minor to be adopted are also the
parents of the petitioner-wife. The
minor, therefore, is the latter's
legitimate brother.
In this proceeding, the adoption will
result in an incongruous situation
where the minor Edwin Villa, a
legitimate brother of the petitioner-
wife, will also be her son. In the
not neutralized by other
circumstances absent herein, should
prevent the adoption.
The petitioners moved to reconsider the
decision but the same was denied. Hence, this
appeal.
The facts are not disputed.
The above-named spouses filed the petition
before the court a quo on January 8, 1963,
praying that the minor Edwin Villa y Mendoza,
4 years old, be declared their (petitioner's) son
by adoption. Evidence was presented that the
order setting the case for hearing has been duly
published, Exhibit A. There having been no
opposition registered to the petition, the
petitioners were permitted to adduce their
evidence.
It was established that the petitioners are both
32 years of age, Filipinos, residing in the City
of Manila. They were married in 1957 and
have maintained a conjugal home of their own.
They do not have a child of their own blood.
Neither spouse has any legitimate, legitimated,
illegitimate, acknowledged natural child, or
natural child by legal fiction, nor has any one
of them been convicted of a crime involving
moral turpitude. Edwin Villa y Mendoza, 4
years old, is a child of Francisco Villa and
Florencia Mendoza who are the common
parents of the petitioner-wife Edipola Villa
Santos and the minor. Luis E. Santos, Jr., is a
lawyer, with business interests in a textile
development enterprise and the IBA electric
plant, and is the general manager of Medry Inc.
and the secretary-treasurer of Bearen
Enterprises. His income is approximately
P600.00 a month. His co-petitioner-wife, is a
nurse by profession, with an average monthly
earning of about P300.00.
It was also shown that Edwin Villa y Mendoza
was born on May 22, 1958, Exhibit C. He was
a sickly child since birth. Due to the child's
impairing health his parents entrusted him to
the petitioners who reared and brought him up
for the years thereafter, and as a result, there
developed between the petitioners and the
child, a deep and profound love for each other.
The natural parents of the minor testified that
they have voluntarily given their consent to the
adoption of their son by the petitioners, and
submitted their written consent and conformity
to the adoption, and that they fully understand
the legal consequences of the adoption of their
child by the petitioners.
We are not aware of any provision in the law,
and none has been pointed to Us by the Office
of the Solicitor General who argues for the
State in this case, that relatives, by blood or by
affinity, are prohibited from adopting one
another. The only objection raised is the
alleged "incongruity" that will result in the
relation of the petitioner-wife and the adopted,
in the circumstance that the adopted who is the
legitimate brother of the adopter, will also be
her son by adoption. The theory is, therefore,
advanced that adoption among people who are
related by nature should not be allowed, in
order that dual relationship should not result,
reliance being made upon the views expressed
by this Court in McGee vs. Republic. L-5387,
April 29, 1954, 94 Phil. 820.1awphîl.nèt
In that case, an American citizen, Clyde E.
McGee married to a Filipina by whom he had
one child, instituted a proceeding for the
adoption of two minor children of the wife had
by her first husband. The lower court granted
the petition of McGee to adopt his two minor
step-children. On appeal by the State. We
reversed the decision. We said:
The purpose of adoption is to
establish a relationship of paternity
and filiation where none existed
before. Where therefore the
relationship of parent and child
already exists whether by blood or
by affinity as in the case of
illegitimate and step-children, it
would be unnecessary and
superfluous to establish and super
impose another relationship of
parent and child through adoption.
Consequently, an express
authorization of law like article 338
is necessary, if not to render it
proper and legal, at least, to remove
any and all doubt on the subject
matter. Under this view, article 338
may not be regarded as a surplusage.
That may have been the reason why
in the old Code of Civil Procedure,
particularly its provisions regarding
adoption, authority to adopt a step-
child by a step-father was provided
in section 766 notwithstanding the
general authorization in section 765
extended to any inhabitant of the
Philippines to adopt a minor child.
The same argument of surplusage
could plausibly have been advanced
as regards section 766, that is to say,
section 766 was unnecessary and
superfluous because without it a
step-father could adopt a minor step-
child anyway. However, the
inserting of section 766 was not
entirely without reason. It seems to
be an established principle in
American jurisprudence that a
person may not adopt his own
relative, the reason being that it is
unnecessary to establish a
relationship where such already
exists (the same philosophy
underlying our codal provisions on
adoption). So some states have
special laws authorizing the
adoption of relatives such as a
grandfather adopting a grandchild
and a father adopting his illegitimate
or natural-child.
Notwithstanding the views thus expressed, a
study of American precedents would reveal
that there is a variance in the decisions of the
courts in different jurisdictions regarding, the
matter of adoption of relatives. It cannot be
stated as a general proposition that the
adoption of a blood relative is contrary to the
policy of the law, for in many states of the
Union, no restriction of that sort is contained in
the statutes authorizing adoption, although
laws of other jurisdiction expressly provide
that adoption may not take place within
persons within a certain degree of relationship
(1 Am. Jur. 628-629). Courts in some states
hold that in the absence of express statutory
restriction, a blood relationship between the
parties is not a legal impediment to the
adoption of one by the other, and there may be
a valid adoption where the relation of parent
and child already exists by nature (2 Am. Jur.
2d 869). Principles vary according to the
particular adoption statute of a state under
which any given case is considered. It would
seem that in those states originally influenced
by the civil law countries where adoption
originated, the rules are liberally construed,
while in other states where common law
principles predominate, adoption laws are
more strictly applied because they are regarded
to be in derogation of the common law.

Article 335 of the Civil Code enumerates those

persons who may not adopt, and it has been
shown that petitioners-appellants herein are not
among those prohibited from adopting. Article
339 of the same code names those who cannot
be adopted, and the minor child whose
adoption is under consideration, is not one of
those excluded by the law. Article 338, on the
other hand, allows the adoption of a natural
child by the natural father or mother, of other
illegitimate children by their father or mother,
and of a step-child by the step-father or
stepmother. This last article is, of course,
necessary to remove all doubts that adoption is
not prohibited even in these cases where there
already exist a relationship of parent and child
between them by nature. To say that adoption
should not be allowed when the adopter and
the adopted are related to each other, except in
these cases enumerated in Article 338, is to
preclude adoption among relatives no matter
how far removed or in whatever degree that
relationship might be, which in our opinion is
not the policy of the law. The interest and
welfare of the child to be adopted should be of
paramount consideration. Adoption statutes,
being humane and salutary, and designed to
provide homes, care and education for
unfortunate children, should be construed so as
to encourage the adoption of such children by
person who can properly rear and educate them
(In re Havsgord's Estate, 34 S.D. 131, 147
N.W. 378).

With respect to the objection that the adoption

in this particular case will result in a dual
relationship between the parties, that the
adopted brother will also be the son of the
adopting elder sister, that fact alone should not
prevent the adoption. One is by nature, while
the other is by fiction of law. The relationship
established by the adoption is limited to the
adopting parents and does not extend to their
other relatives, except as expressly provided by
law. Thus, the adopted child cannot be
considered as a relative of the ascendants and
collaterals of the adopting parents, nor of the
legitimate children which they may have after
the adoption except that the law imposes
certain impediments to marriage by reason of
adoption. Neither are the children of the
adopted considered as descendants of the
adopter (Tolentino, Civil Code, Vol. I, 1960
Ed., p. 652, citing 1 Oyuelos 284; Perez,
Gonzales and Castan; 4-11 Enneccerus, Kipp
& Wolff 177; Muñoz P. 104). So even
considered in relation to the rules on
succession which are in  pari materia, the
adoption under consideration would not be
objectionable on the ground alone of the
resulting relationship between the adopter and
the adopted. Similar dual relationships also
result under our law on marriage when persons
who are already related, by blood or by
affinity, marry each other. But as long as the
relationship is not within the degrees
prohibited by law, such marriages are allowed
notwithstanding the resulting dual relationship.
And as We do not find any provision in the law
that expressly prohibits adoption among
relatives, they ought not to be prevented.

For all the foregoing considerations, the

decision appealed from is set aside, and the
petition for the adoption of the subject minor,
granted. No pronouncement as to costs.
4) Adoption
SECOND DIVISION  for hearing on April 18, 1990. The said Order
G.R. No. 94147 June 8, 1994
REPUBLIC OF THE
PHILIPPINES, petitioner,  The principal evidence disclose that private
vs.
HONORABLE RODOLFO TOLEDANO,
in his capacity as Presiding Judge of the
Regional Trial Court, Third Judicial
Region, Branch 69, Iba, Zambales and
SPOUSES ALVIN A. CLOUSE and
EVELYN A. CLOUSE, respondents.
Civil Law;  Adoption;  Under the
Family Code of the Philippines, private
respondents spouses Clouse are clearly
barred from adopting Solomon Joseph
Alcala.—Under Articles 184 and 185 of
Executive Order (E.O.) No. 209, otherwise
known as “The Family Code of the
Philippines”, private respondents spouses
Clouse are clearly barred from adopting
Solomon Joseph Alcala.
Same;  Same; Article 185 requires a
joint adoption by the husband and wife.—
Article 185 requires a joint adoption by the
husband and wife, a condition that must be
read along together with Article 184.
Same;  Same; Same;  Joint adoption by
husband and wife is mandatory.—Under the
said new law, joint adoption by husband and
wife is mandatory. This is in consonance with
the concept of joint parental authority over the
child which is the ideal situation. As the child
to be adopted is elevated to the level of a
legitimate child, it is but natural to require the
spouses to adopt jointly. The rule also insures
harmony between the spouses.
Same;  Same; Adoption is geared more
towards the promotion of the welfare of the
child and enhancement of his opportunities
for a useful and happy life.—We are not
unaware that the modern trend is to encourage
adoption and every reasonable intendment
should be sustained to promote that objective.
Adoption is geared more towards the
promotion of the welfare of the child and
enhancement of his opportunities for a useful
and happy life. It is not the bureaucratic
technicalities but the interest of the child that
should be the principal criterion in adoption
cases. Executive Order 209 likewise upholds
that the interest and welfare of the child to be
adopted should be the paramount
consideration.
PUNO, J.:
Before us is a petition for review
on certiorari  of the decision1 of the Regional
Trial Court of Iba, Zambales, Branch 69, in
Special Proceeding No. RTC-140-I, entitled,
"In the Matter of the Adoption of the Minor
named Solomon Joseph Alcala", raising a pure
question of law.
The sole issue for determination concerns the
right of private respondents spouses Alvin A.
Clouse and Evelyn A. Clouse who are aliens to
adopt under Philippine Law.
There is no controversy as to the facts.
On February 21, 1990, in a verified petition
filed before the Regional Trial Court of Iba,
Zambales, private respondents spouses Clouse
sought to adopt the minor, Solomon Joseph
Alcala, the younger brother of private
respondent Evelyn A. Clouse. In an Order
issued on March 12, 1990, the petition was set
was published in a newspaper of general
circulation in the province of Zambales and
City of Olongapo for three (3) consecutive
weeks.
respondent Alvin A. Clouse is a natural born
citizen of the United States of America. He
married Evelyn, a Filipino on June 4, 1981 at
Olongapo City. On August 19, 1988, Evelyn
became a naturalized citizen of the United
States of America in Guam. They are
physically, mentally, morally, and financially
capable of adopting Solomon, a twelve (12)
year old minor.
Since 1981 to 1984, then from November 2,
1989 up to the present, Solomon Joseph Alcala
was and has been under the care and custody
of private respondents. Solomon gave his
consent to the adoption. His mother, Nery
Alcala, a widow, likewise consented to the
adoption due to poverty and inability to
support and educate her son.
Mrs. Nila Corazon Pronda, the social worker
assigned to conduct the Home and Child
Study, favorably recommended the granting of
the petition for adoption.
Finding that private respondents have all the
qualifications and none of the disqualifications
provided by law and that the adoption will
redound to the best interest and welfare of the
minor, respondent judge rendered a decision
on June 20, 1990, disposing as follows:
WHEREFORE, the Court grants the
petition for adoption filed by
Spouses Alvin A. Clouse and
Evelyn A. Clouse and decrees that
the said minor be considered as their
child by adoption. To this effect, the
Court gives the minor the rights and
duties as the legitimate child of the
petitioners. Henceforth, he shall be
known as SOLOMON ALCALA
CLOUSE.
The Court dissolves parental
authority bestowed upon his natural
parents and vests parental authority
to the herein petitioners and makes
him their legal heir. Pursuant to
Article 36 of P.D. 603 as amended,
the decree of adoption shall be
effective as of the date when the
petition was filed. In accordance
with Article 53 of the same decree,
let this decree of adoption be
recorded in the corresponding
government agency, particularly the
Office of the Local Civil Registrar
of Merida, Leyte where the minor
was born. The said office of the
Local Civil Registrar is hereby
directed to issue an amended
certificate of live birth to the minor
adopted by the petitioners.
Let copies of this decision be
furnished (sic) the petitioners,
DSWD, Zambales Branch, Office of
the Solicitor General and the Office
of the Local Civil Registrar of
Merida, Leyte.
SO ORDERED.2
Petitioner, through the Office of the Solicitor
General appealed to us for relief, contending:
THE LOWER COURT ERRED IN
GRANTING THE PETITION FOR
ADOPTION OF ALVIN AND
EVELYN CLOUSE, BECAUSE
THEY ARE NOT QUALIFIED TO
ADOPT UNDER PHILIPPINE
LAW.
We rule for petitioner.
Under Articles 184 and 185 of Executive
Order (E.O.) No. 209, otherwise known as
"The Family Code of the Philippines", private
respondents spouses Clouse are clearly barred
from adopting Solomon Joseph Alcala.
Article 184, paragraph (3) of Executive Order
No. 209 expressly enumerates the persons who
are not qualified to adopt, viz.:
(3) An alien, except:
(a) A former Filipino
citizen who seeks to adopt
a relative by
consanguinity;
(b) One who seeks to
adopt the legitimate child
of his or her Filipino
spouse; or
(c) One who is married to
a Filipino citizen and
seeks to adopt jointly with
his or her spouse a
relative by consanguinity
of the latter.
Aliens not included in the foregoing exceptions
may adopt Filipino children in accordance with
the rules on inter-country adoption as may be
provided by law.
There can be no question that private
respondent Alvin A. Clouse is not qualified to
adopt Solomon Joseph Alcala under any of the
exceptional cases in the aforequoted provision.
In the first place, he is not a former Filipino
citizen but a natural born citizen of the United
States of America. In the second place,
Solomon Joseph Alcala is neither his relative
by consanguinity nor the legitimate child of his
spouse. In the third place, when private
respondents spouses Clouse jointly filed the
petition to adopt Solomon Joseph Alcala on
February 21, 1990, private respondent Evelyn
A. Clouse was no longer a Filipino citizen. She
lost her Filipino citizenship when she was
naturalized as a citizen of the United States in
1988.
Private respondent Evelyn A. Clouse, on the
other hand, may appear to qualify pursuant to
paragraph 3(a) of Article 184 of E.O. 209. She
was a former Filipino citizen. She sought to
adopt her younger brother. Unfortunately, the
petition for adoption cannot be granted in her
favor alone without violating Article 185
which mandates a joint adoption by the
husband and wife. It reads:
Article 185. Husband and wife must
jointly adopt, except in the
following cases:
(1) When one spouse seeks to adopt
his own illegitimate child; or
(2) When one spouse seeks to adopt
the legitimate child of the other.
Article 185 requires a joint adoption by the WHEREFORE, the petition is GRANTED.
husband and wife, a condition that must be The decision of the lower court is REVERSED
read along together with Article 184.3 and SET ASIDE. No costs.

The historical evolution of this provision is SO ORDERED.

clear. Presidential Decree 603 (The Child and
Youth Welfare Code), provides that husband
and wife "may" jointly adopt.4 Executive Order
No. 91 issued on December 17, 1986 amended
said provision of P.D. 603. It demands that
both husband and wife "shall" jointly adopt if
one of them is an alien.5 It was so crafted to
protect Filipino children who are put up for
adoption. The Family Code reiterated the rule
by requiring that husband and wife "must"
jointly adopt, except in the cases mentioned
before. Under the said new law, joint adoption
by husband and wife is mandatory.6 This is in
consonance with the concept of joint parental
authority over the child, which is the ideal
situation.7 As the child to be adopted is
elevated to the level of a legitimate child, it is
but natural to require the spouses to adopt
jointly. The rule also insures harmony between
the spouses.8

In a distinctly similar case, we held:

As amended by Executive Order 91,

Presidential Decree No. 603, had
thus made it mandatory for both the
spouses to jointly adopt when one of
them was an alien. The law was
silent when both spouses were of the
same nationality.

The Family Code has resolved any

possible uncertainty. Article 185
thereof expresses the necessity for a
joint adoption by the spouses except
in only two instances —

(1) When one spouse

seeks to adopt his own
illegitimate child; or

(2) When one spouse

seeks to adopt the
legitimate child of the
other.

It is in the foregoing cases when Article 186 of

the Code, on the parental authority, can aptly
find governance.

Article 186. In case husband and wife jointly

adopt or one spouse adopts the legitimate child
of the other, jointly parental authority shall be
exercised by the spouses in accordance with
this Code.9

Article 185 is all too clear and categorical and

there is no room for its interpretation. There is
only room for application.10

We are not unaware that the modern trend is to

encourage adoption and every reasonable
intendment should be sustained to promote that
objective.11 Adoption is geared more towards
the promotion of the welfare of the child and
enhancement of his opportunities for a useful
and happy life.12 It is not the bureaucratic
technicalities but the interest of the child that
should be the principal criterion in adoption
cases.13 Executive Order 209 likewise upholds
that the interest and welfare of the child to be
adopted should be the paramount
consideration. These considerations
notwithstanding, the records of the case do not
evince any fact as would justify us in allowing
the adoption of the minor, Solomon Joseph
Alcala, by private respondents who are aliens.
5) Rescission of Adoption
FIRST DIVISION
[ G.R. No. 143989, July 14, 2003 ]
ISABELITA S. LAHOM, PETITIONER,
VS. JOSE MELVIN SIBULO
(PREVIOUSLY REFERRED TO AS "DR.
MELVIN S. LAHOM"), RESPONDENT.
Civil Law;  Adoption;  The Philippines,
a State Party to the Convention of the Rights
of the Child accepted the principle that
adoption was impressed with social and
moral responsibility, and that its underlying
intent was geared to favor the adopted child;
Republic Act No. 8552 affirmed the legitimate
status of the adopted child not only in his new
family but also in the society as well; The new
law withdrew the right of an adopter to
rescind the adoption decree and gave to the
adopted child the sole right to sever the legal
ties created by adoption.—In the early part of
the century just passed, the rights of children
invited universal attention; the Geneva
Declaration of Rights of the Child of 1924 and
the Universal Declaration of Human Rights of
1948, followed by the United Nations
Declarations of the Rights of the Child, were
written instruments that would also protect and
safeguard the rights of adopted children. The
Civil Code of the Philippines of 1950 on
adoption, later modified by the Child and
Youth Welfare Code and then by the Family
Code of the Philippines, gave immediate
statutory acknowledgment to the rights of the
adopted. In 1989, the United Nations initiated
the Convention of the Rights of the Child. The
Philippines, a State Party to the Convention,
accepted the principle that adoption was
impressed with social and moral responsibility,
and that its underlying intent was geared to
favor the adopted child. R.A. No. 8552 secured
these rights and privileges for the adopted.
Most importantly, it affirmed the legitimate
status of the adopted child, not only in his new
family but also in the society as well. The new
law withdrew the right of an adopter to rescind
the adoption decree and gave to the adopted
child the sole right to sever the legal ties
created by adoption.
Same;  Same; “Vested right” includes
not only legal or equitable title to the
enforcement of a demand but also exemption
from new obligations created after the right
has become vested; Rights are considered
vested when the right to enjoyment is a
present interest, absolute, unconditional and
perfect or fixed and irrefutable.—The concept
of “vested right” is a consequence of the
constitutional guaranty of due process that
expresses a present fixed interestwhich in right
reason and natural justice is protected against
arbitrary state action; it includes not only legal
or equitable title to the enforcement of a
demand but also exemptions from new
obligations created after the right has become
vested. Rights are considered vested when the
right to enjoyment is a present interest,
absolute, unconditional, and perfect or fixed
and irrefutable.
Same;  Same; The action for
rescission of the adoption decree, having
been initiated by petitioner after R.A. No.
8552 had come into force, no longer, could be
pursued.—It was months after the effectivity
of R.A. No. 8552 that herein petitioner filed an
action to revoke the decree of adoption granted
in 1975. By then, the new law, had already
abrogated and repealed the right of an adopter
under the Civil Code and the Family Code to
rescind a decree of adoption. Consistently with
its earlier pronouncements, the Court should
now hold that the action for rescission of the
adoption decree, having been initiated by
petitioner after R.A. No. 8552 had come into
force, no longer, could be pursued.
Same; Same;  The exercise of the right
within a prescriptive period is a condition that
could not fulfill the requirements of a vested
right entitled to protection; Matters relating
to adoption, including the withdrawal of the
right of an adopter to nullify the adoption
decree, are subject to regulation by the State.
—Interestingly, even before the passage of the
statute, an action to set aside the adoption is
subject to the five-year bar rule under Rule 100
of the Rules of Court and that the adopter
would lose the right to revoke the adoption
decree after the lapse of that period. The
exercise of the right within a prescriptive
period is a condition that could not fulfill the
requirements of a vested right entitled to
protection. It must also be acknowledged that a
person has no vested right in statutory
privileges. While adoption has often been
referred to in the context of a “right,” the
privilege to adopt is itself not naturally innate
or fundamental but rather a right merely
created by statute. It is a privilege that is
governed by the state’s determination on what
it may deem to be for the best interest and
welfare of the child. Matters relating to
adoption, including the withdrawal of the right
of an adopter to nullify the adoption decree,
are subject to regulation by the State.
Concomitantly, a right of actiongiven by
statute may be taken away at anytime before it
has been exercised.
Same; Same;  An adopter while barred
from severing the legal ties of adoption, can
always for valid reasons cause the forfeiture
of certain benefits otherwise accruing to an
undeserving child.—While R.A. No. 8552 has
unqualifiedly withdrawn from an adopter a
consequential right to rescind the adoption
decree even in cases where the adoption might
clearly turn out to be undesirable, it remains,
nevertheless, the bounden duty of the Court to
apply the law. Dura lex sed lexwould be the
hackneyed truism that those caught in the law
have to live with. It is still noteworthy,
however, that an adopter, while barred from
severing the legal ties of adoption, can always
for valid reasons cause the forfeiture of certain
benefits otherwise accruing to an undeserving
child. For instance, upon the grounds
recognized by law, an adopter may deny to an
adopted child his legitime and, by a will and
testament, may freely exclude him from having
a share in the disposable portion of his estate.
DECISION
VITUG, J.:
The bliss of marriage and family would be to
most less than complete without children. The
realization could have likely prodded the
spouses Dr. Diosdado Lahom and Isabelita
Lahom to take into their care Isabelita's
nephew Jose Melvin Sibulo and to bring him
up as their own. At the tender age of two, Jose
Melvin enjoyed the warmth, love and support
of the couple who treated the child like their
own. Indeed, for years, Dr. and Mrs. Lahom
fancied on legally adopting Jose Melvin.
Finally, in 1971, the couple decided to file a
petition for adoption. On 05 May 1972, an
order granting the petition was issued that
made all the more intense than before the
feeling of affection of the spouses for Melvin.
In keeping with the court order, the Civil
Registrar of Naga City changed the name "Jose
Melvin Sibulo" to "Jose Melvin Lahom."
A sad turn of events came many years later.
Eventually, in December of 1999, Mrs. Lahom
commenced a petition to rescind the decree of
adoption before the Regional Trial Court
(RTC), Branch 22, of Naga City. In her
petition, she averred -
"7. That x x x despite the proddings and
pleadings of said spouses, respondent refused
to change his surname from Sibulo to Lahom,
to the frustrations of petitioner particularly her
husband until the latter died, and even before
his death he had made known his desire to
revoke respondent's adoption, but was
prevented by petitioner's supplication, however
with his further request upon petitioner to give
to charity whatever properties or interest may
pertain to respondent in the future.
"x x x             x x x             x x x
"10. That respondent continued using his
surname Sibulo to the utter disregard of the
feelings of herein petitioner, and his records
with the Professional Regulation Commission
showed his name as Jose Melvin M. Sibulo
originally issued in 1978 until the present, and
in all his dealings and activities in connection
with his practice of his profession, he is Jose
Melvin M. Sibulo.
"x x x             x x x             x x x
"13. That herein petitioner being a widow, and
living alone in this city with only her
household helps to attend to her, has yearned
for the care and show of concern from a son,
but respondent remained indifferent and would
only come to Naga to see her once a year.
"14. That for the last three or four years, the
medical check-up of petitioner in Manila
became more frequent in view of a leg ailment,
and those were the times when petitioner
would need most the care and support from a
love one, but respondent all the more remained
callous and utterly indifferent towards
petitioner which is not expected of a son.
"15. That herein respondent has recently been
jealous of petitioner's nephews and nieces
whenever they would find time to visit her,
respondent alleging that they were only
motivated by their desire for some material
benefits from petitioner.
"16. That in view of respondent's insensible
attitude resulting in a strained and
uncomfortable relationship between him and
petitioner, the latter has suffered wounded
feelings, knowing that after all respondent's
only motive to his adoption is his expectancy
of his alleged rights over the properties of
herein petitioner and her late husband, clearly
shown by his recent filing of Civil Case No.
99-4463 for partition against petitioner,
thereby totally eroding her love and affection
towards respondent, rendering the decree of
adoption, considering respondent to be the
child of petitioner, for all legal purposes, has
been negated for which reason there is no more
basis for its existence, hence this petition for
revocation."[1]
Prior to the institution of the case, specifically
on 22 March 1998, Republic Act (R.A.) No.
8552, also known as the Domestic Adoption
Act, went into effect. The new statute deleted
from the law the right of adopters to rescind a
decree of adoption.
Section 19 of Article VI of R.A. No. 8552 now
reads:
"SEC. 19. Grounds for Rescission of Adoption.
- Upon petition of the adoptee, with the
assistance of the Department if a minor or if
over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the
following grounds committed by the
adopter(s): (a) repeated physical and verbal
maltreatment by the adopter(s) despite having
undergone counseling; (b) attempt on the life
of the adoptee; (c) sexual assault or violence;
or (d) abandonment and failure to comply with
parental obligations.
"Adoption, being in the best interest of the
child, shall not be subject to rescission by
the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in
Article 919 of the Civil Code." (emphasis
supplied)
Jose Melvin moved for the dismissal of the
petition, contending principally (a) that the
trial court had no jurisdiction over the case and
(b) that the petitioner had no cause of action in
view of the aforequoted provisions of R.A. No.
8552. Petitioner asseverated, by way of
opposition, that the proscription in R.A. No.
8552 should not retroactively apply, i.e., to
cases where the ground for rescission of the
adoption vested under the regime of then
Article 348[2] of the Civil Code and Article
192[3] of the Family Code.
In an order, dated 28 April 2000, the trial court
held thusly:
"On the issue of jurisdiction over the subject
matter of the suit, Section 5(c) of R.A. No.
8369 confers jurisdiction to this Court, having
been designated Family Court in A.M. No. 99-
11-07 SC.
"On the matter of no cause of action, the test
on the sufficiency of the facts alleged in the
complaint, is whether or not, admitting the
facts alleged, the Court could render a valid
judgment in accordance with the prayer of said
complaint (De Jesus, et al. vs. Belarmino, et
al., 95 Phil. 365).
"Admittedly, Section 19, Article VI of R.A.
No. 8552 deleted the right of an adopter to
rescind an adoption earlier granted under the
Family Code. Conformably, on the face of the
petition, indeed there is lack of cause of action.
"Petitioner however, insists that her right to
rescind long acquired under the provisions of
the Family Code should be respected.
Assuming for the sake of argument, that
petitioner is entitled to rescind the adoption of
respondent granted on May 5, 1972, said right
should have been exercised within the period
allowed by the Rules. From the averments in
the petition, it appears clear that the legal
grounds for the petition have been discovered
and known to petitioner for more than five (5)
years, prior to the filing of the instant petition
on December 1, 1999, hence, the action if any,
had already prescribed. (Sec. 5, Rule 100
Revised Rules of Court)
"WHEREFORE, in view of the foregoing
consideration, the petition is ordered
dismissed."[4]
Via a petition for review on certiorari under
Rule 45 of the 1997 Rules of Court, petitioner
raises the following questions; viz:
1. May the subject adoption, decreed
on 05 May 1972, still be revoked or
rescinded by an adopter after the
effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's
action prescribed?
A brief background on the law and its origins
could provide some insights on the subject. In
ancient times, the Romans undertook adoption
to assure male heirs in the family.[5] The
continuity of the adopter's family was the
primary purpose of adoption and all matters
relating to it basically focused on the rights of
the adopter. There was hardly any mention
about the rights of the adopted.[6] Countries,
like Greece, France, Spain and England, in an
effort to preserve inheritance within the family,
neither allowed nor recognized adoption.[7] It
was only much later when adoption was given
an impetus in law and still later when the
welfare of the child became a paramount
concern.[8] Spain itself which previously
disfavored adoption ultimately relented and
accepted the Roman law concept of adoption
which, subsequently, was to find its way to the
archipelago. The Americans came and
introduced their own ideas on adoption which,
unlike most countries in Europe, made the
interests of the child an overriding
consideration.[9] In the early part of the century
just passed, the rights of children invited
universal attention; the Geneva Declaration of
Rights of the Child of 1924 and the Universal
Declaration of Human Rights of 1948,
[10]
 followed by the United Nations
Declarations of the Rights of the Child,[11]were
written instruments that would also protect and
safeguard the rights of adopted children. The
Civil Code of the Philippines[12] of 1950 on
adoption, later modified by the Child and
Youth Welfare Code[13] and then by the Family
Code of the Philippines,[14] gave immediate
statutory acknowledgment to the rights of the
adopted. In 1989, the United Nations initiated
the Convention of the Rights of the Child. The
Philippines, a State Party to the Convention,
accepted the principle that adoption was
impressed with social and moral responsibility,
and that its underlying intent was geared to
favor the adopted child. R.A. No. 8552 secured
these rights and privileges for the adopted.
Most importantly, it affirmed the legitimate
status of the adopted child, not only in his new
family but also in the society as well. The new
law withdrew the right of an adopter to rescind
the adoption decree and gave to the adopted
child the sole right to sever the legal ties
created by adoption.
Petitioner, however, would insist that R.A. No.
8552 should not adversely affect her right to
annul the adoption decree, nor deprive the trial
court of its jurisdiction to hear the case, both
being vested under the Civil Code and the
Family Code, the laws then in force.
The concept of "vested right" is a consequence
of the constitutional guaranty of due
process[15] that expresses a present fixed
interest which in right reason and natural
justice is protected against arbitrary state
action;[16] it includes not only legal or equitable
title to the enforcement of a demand but also
exemptions from new obligations created after
the right has become vested.[17] Rights are
considered vested when the right to enjoyment
is a present interest,[18] absolute, unconditional,
and perfect[19] or fixed and irrefutable.
In Republic vs. Court of Appeals,[20] a petition
to adopt Jason Condat was filed by Zenaida C.
Bobiles on 02 February 1988 when the Child
and Youth Welfare Code (Presidential Decree
No. 603) allowed an adoption to be sought
by either spouse or both of them. After the
trial court had rendered its decision and while
the case was still pending on appeal, the
Family Code of the Philippines (Executive
Order No. 209), mandating joint adoption by
the husband and wife, took effect. Petitioner
Republic argued that the case should be
dismissed for having been filed by Mrs.
Bobiles alone and without being joined by the
husband. The Court concluded that
the jurisdiction of the court is determined by
the statute in force at the time of the
commencement of the action. The petition to
adopt Jason, having been filed with the
court at the time when P.D. No. 603 was still
in effect, the right of Mrs. Bobiles to file the
petition, without being joined by her husband,
according to the Court had become vested.
In Republic vs. Miller,[21] spouses Claude and
Jumrus Miller, both aliens, sought to adopt
Michael Madayag. On 29 July 1988, the
couple filed a petition to formalize Michael's
adoption having theretofore been taken into
their care. At the time the action was
commenced, P.D. No. 603 allowed aliens to
adopt. After the decree of adoption and while
on appeal before the Court of Appeals, the
Family Code was enacted into law on 08
August 1988 disqualifying aliens from
adopting Filipino children. The Republic then
prayed for the withdrawal of the adoption
decree. In discarding the argument posed by
the Republic, the Supreme Court ruled that the
controversy should be resolved in the light
of the law governing at the time the petition
was filed.
It was months after the effectivity of R.A. No.
8552 that herein petitioner filed an action to
revoke the decree of adoption granted in 1975.
By then, the new law,[22] had already abrogated
and repealed the right of an adopter under the
Civil Code and the Family Code to rescind a
decree of adoption. Consistently with its earlier
pronouncements, the Court should now hold
that the action for rescission of the adoption
decree, having been initiated by petitioner after
R.A. No. 8552 had come into force, no longer
could be pursued.
Interestingly, even before the passage of the
statute, an action to set aside the adoption is
subject to the five-year bar rule under Rule
100[23] of the Rules of Court and that the
adopter would lose the right to revoke the
adoption decree after the lapse of that period.
The exercise of the right within a prescriptive
period is a condition that could not fulfill the
requirements of a vested right entitled to
protection. It must also be acknowledged that a
person has no vested right in statutory
privileges.[24]While adoption has often been
referred to in the context of a "right," the
privilege to adopt is itself not naturally innate
or fundamental but rather a right merely
created by statute.[25] It is a privilege that is
governed by the state's determination on what
it may deem to be for the best interest and
welfare of the child.[26] Matters relating to
adoption, including the withdrawal of the right
of an adopter to nullify the adoption decree, are
subject to regulation by the State.
[27]
 Concomitantly, a right of action given by
statute may be taken away at anytime before it
has been exercised.[28]
While R.A. No. 8552 has unqualifiedly
withdrawn from an adopter a consequential
right to rescind the adoption decree even in
cases where the adoption might clearly turn out
to be undesirable, it remains, nevertheless, the
bounden duty of the Court to apply the
law. Dura lex sed lex would be the hackneyed
truism that those caught in the law have to live
with. It is still noteworthy, however, that an
adopter, while barred from severing the legal
ties of adoption, can always for valid reasons
cause the forfeiture of certain benefits
otherwise accruing to an undeserving child.
For instance, upon the grounds recognized by
law, an adopter may deny to an adopted child
his legitime and, by a will and testament, may
freely exclude him from having a share in the
disposable portion of his estate.
WHEREFORE, the assailed judgment of the
court a quo is AFFIRMED. No costs.
SO ORDERED.
6) Rectification of Simulated Births
FIRST DIVISION
[ G.R. NO. 164948, June 27, 2006 ]
DIWATA RAMOS LANDINGIN
PETITIONER, VS. REPUBLIC OF THE
PHILIPPINES, RESPONDENT.  given to an adopting parent. Again, it is the
Adoption; The general requirement of
consent and notice to the natural parents is
intended to protect the natural parental
relationship from unwarranted interference
by interlopers, and to insure the opportunity
to safeguard the best interests of the child in
the manner of the proposed adoption.—The
general requirement of consent and notice to
the natural parents is intended to protect the
natural parental relationship from unwarranted
interference by interlopers, and to insure the
opportunity to safeguard the best interests of
the child in the manner of the proposed
adoption.
Same;  The written consent of the
biological parents is indispensable for the
validity of a decree of adoption.—The written
consent of the biological parents is
indispensable for the validity of a decree of
adoption. Indeed, the natural right of a parent
to his child requires that his consent must be
obtained before his parental rights and duties
may be terminated and re-established in
adoptive parents. In this case, petitioner failed
to submit the written consent of Amelia Ramos
to the adoption.
Same;  Section 9 of R.A. 8552 provides
that if the written consent of the biological
parents cannot be obtained, the written
consent of the legal guardian of the minors
will suffice.—Petitioner’s contention must be
rejected. When she filed her petition with the
trial court, Rep. Act No. 8552 was already in
effect. Section 9 thereof provides that if the
written consent of the biological parents cannot
be obtained, the written consent of the legal
guardian of the minors will suffice. If, as
claimed by petitioner, that the biological
mother of the minors had indeed abandoned
them, she should, thus have adduced the
written consent of their legal guardian.
Same;  Words and
Phrases;  Abandonment means neglect and
refusal to perform the filial and legal
obligations of love and support.— Ordinarily,
abandonment by a parent to justify the
adoption of his child without his consent, is a
conduct which evinces a settled purpose to
forego all parental duties. The term means
neglect and refusal to perform the filial and
legal obligations of love and support. If a
parent withholds presence, love, care, the
opportunity to display filial affection, and
neglects to lend support and maintenance, the
parent, in effect, abandons the child.
Same;  Merely permitting the child to
remain for a time undisturbed in the care of
others is not such an abandonment.—Merely
permitting the child to remain for a time
undisturbed in the care of others is not such an
abandonment. To dispense with the
requirement of consent, the abandonment must
be shown to have existed at the time of
adoption.
Same;  It would thus be against the
spirit of the law if financial consideration
were to be the paramount consideration in
deciding whether to deprive a person of
parental authority over his/her children.—Let
it be emphasized, nevertheless, that the
adoption of the minors herein will have the
effect of severing all legal ties between the
biological mother, Amelia, and the adoptees,
and that the same shall then be vested on the
adopter. It would thus be against the spirit of
the law if financial consideration were to be
the paramount consideration in deciding
whether to deprive a person of parental
authority over his/her children. More proof has
to be adduced that Amelia has emotionally
abandoned the children, and that the latter will
not miss her guidance and counsel if they are
best interest of the child that takes precedence
in adoption.
Same; Under Section 34, Rule 132, the
offer of evidence is necessary because it is the
duty of the Court to rest its findings of fact
and its judgment only and strictly upon the
evidence offered by the parties.—Section 34,
Rule 132 of the Rules of Court provides that
the Court shall consider no evidence which has
not been formally offered. The purpose for
which the evidence is offered must be
specified. The offer of evidence is necessary
because it is the duty of the Court to rest its
findings of fact and its judgment only and
strictly upon the evidence offered by the
parties. Unless and until admitted by the court
in evidence for the purpose or purposes for
which such document is offered, the same is
merely a scrap of paper barren of probative
weight. Mere identification of documents and
the markings thereof as exhibits do not confer
any evidentiary weight on documents unless
formally offered.
Same; Since the primary
consideration in adoption is the best interest
of the child, it follows that the financial
capacity of prospective parents should also be
carefully evaluated and considered.—Since
the primary consideration in adoption is the
best interest of the child, it follows that the
financial capacity of prospective parents
should also be carefully evaluated and
considered. Certainly, the adopter should be in
a position to support the would-be adopted
child or children, in keeping with the means of
the family.
DECISION
CALLEJO, SR., J.:
Assailed in this petition for review
on certiorari under Rule 45 of the Rules of
Court is the Decision[1] of the Court of Appeals
in CA-G.R. CV No. 77826 which reversed the
Decision[2] of the Regional Trial Court (RTC)
of  Tarlac City, Branch 63 in Civil Case No.
2733 granting the Petition for Adoption of the
petitioner herein.
The Antecedents
On February 4, 2002, Diwata Ramos
Landingin, a citizen of the United States of
America (USA), of Filipino parentage and a
resident of Guam, USA, filed a petition[3] for
the adoption of minors Elaine Dizon Ramos
who was born on August 31, 1986;[4]  Elma
Dizon Ramos, who was born on  September 7,
1987;[5] and Eugene Dizon Ramos who was
born on August 5, 1989.[6]  The minors are the
natural children of Manuel Ramos, petitioner's
brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition
that when Manuel died on May 19, 1990,[7] the
children were left to their paternal
grandmother, Maria Taruc Ramos; their
biological mother, Amelia, went to Italy, re-
married there and now has two children by her
second marriage and no longer communicated
with her children by Manuel Ramos nor with
her in-laws from the time she left up to the
institution of the adoption; the minors are
being financially supported by the petitioner
and her children, and relatives abroad; as
Maria passed away on November 23, 2000,
petitioner desires to adopt the children; the
minors have given their written consent[8] to
the adoption; she is qualified to adopt as shown
by the fact that she is a 57-year-old widow, has
children of her own who are already married,
gainfully employed and have their respective
families; she lives alone in her own home in
Guam, USA, where she acquired citizenship,
and works as a restaurant server.  She came
back to the Philippines to spend time with the
minors; her children gave their written
consent[9] to the adoption of the minors.
Petitioner's brother, Mariano Ramos, who
earns substantial income, signified his
willingness and commitment to support the
minors while in petitioner's custody.
Petitioner prayed that, after due hearing,
judgment be rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed
to this Honorable Court that after publication
and hearing, judgment be rendered  allowing
the adoption of the minor children Elaine
Dizon Ramos, Elma Dizon Ramos, and Eugene
Dizon Ramos by the petitioner, and ordering
that the minor children's name follow the
family name of petitioner.
Petitioner prays for such other reliefs, just and
equitable under the premises.[10]
On March 5, 2002, the court ordered the
Department of Social Welfare and
Development (DSWD) to conduct a case study
as mandated by Article 34 of Presidential
Decree No. 603, as amended, and to submit a
report thereon not later than April 4, 2002, the
date set for the initial hearing of the petition.
[11]
  The Office of the Solicitor General (OSG)
entered its appearance[12] but deputized the City
Prosecutor of Tarlac to appear in its behalf.
[13]
 Since her petition was unopposed, petitioner
was allowed to present her evidence ex parte.
[14]
The petitioner testified in her behalf.  She also
presented Elaine Ramos, the eldest of the
adoptees, to testify on the written consent
executed by her and her siblings.[15]  The
petitioner marked in evidence the Affidavit of
Consent purportedly executed by her children
Ann, Errol, Dennis and Ricfel Branitley, all
surnamed Landingin, and notarized by a notary
public in Guam, USA, as proof of said consent.
[16]
On May 24, 2002, Elizabeth Pagbilao, Social
Welfare Officer II of the DSWD, Field Office
III, Tarlac, submitted a Child Study Report,
with the following recommendation:
In view of the foregoing, undersigned finds
minors Elaine, Elma & Eugene all surnamed
Ramos, eligible for adoption because of the
following reasons:
1. Minors' surviving parent,
the mother has voluntarily
consented to their
adoption by the paternal
aunt, Diwata Landingin
this is in view of her
inability to provide the
parental care, guidance
and support they need. 
An Affidavit of Consent
was executed by the
mother which is hereto
attached.
2. The three minors subject
for adoption have also
expressed their
willingness to be adopted
and joins the petitioners
in Guam, USA in the
future.  A joint Affidavit
 of consent is hereto
attached.  The minors
developed close
attachment to the
petitioners and they
regarded her as second
parent.
3. The minors are present
under the care of a
temporary guardian who
has also family to look
after.  As young
adolescents they really
need parental love, care,
guidance and support to
ensure their protection
and well being.
In view of the foregoing, it is hereby
respectfully recommended that minors Elaine
D. Ramos, Elma D. Ramos and Eugene D.
Ramos be adopted by their maternal aunt
Diwata Landingin.  Trial custody is hereby
further recommended to be dispensed with
considering that they are close relatives and
that close attachments was already developed
between the petitioner and the 3 minors.[17]
Pagbilao narrated what transpired during her
interview, as follows:
The mother of minors came home together
with her son John Mario, this May 2002 for 3
weeks vacation.  This is to enable her appear
for the personal interview concerning the
adoption of her children.
The plan for the adoption of minors by their
paternal aunt Diwata Landingin was conceived
after the death of their paternal grandmother
and guardian.  The paternal relatives including
the petitioner who attended the wake of their
mother were very much concerned about the
well-being of the three minors.  While
preparing for their adoption, they have asked a
cousin who has a family to stay with minors
and act as their temporary guardian.
The mother of minors was consulted about the
adoption plan and after weighing the benefits
of adoption to her children, she voluntarily
consented.  She realized that her children need
parental love, guidance and support which she
could not provide as she already has a second
family & residing in Italy.  Knowing also that
the petitioners & her children have been
supporting her children up to the present and
truly care for them, she believes her children
will be in good hands.  She also finds
petitioners in a better position to provide a
secured and bright future to her children. [18]
However, petitioner failed to present Pagbilao
as witness and offer in evidence the voluntary
consent of Amelia Ramos to the adoption;
petitioner, likewise, failed to present any
documentary evidence to prove that Amelia
assents to the adoption.
On November 23, 2002, the court, finding
merit in the petition for adoption, rendered a
decision granting said petition. The dispositive
portion reads:
WHEREFORE, it is hereby ordered that
henceforth, minors Elaine Dizon Ramos, Elma
Dizon Ramos, Eugene Dizon Ramos be freed
from all legal obligations obedience and
maintenance from their natural parents and that
they be declared for all legal intents and
purposes the children of Diwata Ramos
Landingin.  Trial custody is dispensed with
considering that parent-children relationship
has long been established between the children
and the adoptive parents.  Let the surnames of
the children be changed from "Dizon-Ramos"
to "Ramos-Landingin."
Let a copy of this decision be furnished the
Local Civil Registrar of Tarlac, Tarlac for him SUPPORT THE THREE
to effect the corresponding CHILDREN.[27]
changes/amendment in the birth certificates of
the above-mentioned minors.
The issues raised by the parties in their
pleadings are the following:  (a) whether the
[19]
SO ORDERED.
petitioner is entitled to adopt the minors
The OSG appealed[20] the decision to the Court without the written consent of their biological
of Appeals on December 2, 2002.  In its
mother, Amelia Ramos; (b) whether or not the
brief[21] for the oppositor-appellant, the OSG affidavit of consent purportedly executed by
raised the following arguments:
the petitioner-adopter's children sufficiently
I complies with the law; and (c) whether or not
petitioner is financially capable of supporting
THE TRIAL COURT ERRED IN the adoptees.
GRANTING THE PETITION FOR
ADOPTION DESPITE THE LACK OF
CONSENT OF THE PROPOSED The Court's Ruling
ADOPTEES' BIOLOGICAL MOTHER.
The petition is denied for lack of merit.
II
It has been the policy of the Court to adhere to
the liberal concept, as stated in Malkinson v.
THE TRIAL COURT ERRED IN
Agrava,[28] that adoption statutes, being
GRANTING THE PETITION FOR humane and salutary, hold the interest and
ADOPTION DESPITE THE LACK OF THE
welfare of the child to be of paramount
WRITTEN CONSENT OF THE consideration and are designed to provide
PETITIONER'S CHILDREN AS REQUIRED
homes, parental care and education for
BY LAW. unfortunate, needy or orphaned children and
give them the protection of society and family
III in the person of the adopter as well as to allow
childless couples or persons to experience the
THE TRIAL COURT ERRED IN joys of parenthood and give them legally a
GRANTING THE PETITION FOR child in the person of the adopted for the
ADOPTION DESPITE PETITIONER'S manifestation of their natural parental
FAILURE TO ESTABLISH THAT SHE IS IN instincts.  Every  reasonable intendment should
A POSITION TO SUPPORT THE thus be sustained to promote and fulfill these
PROPOSED ADOPTEES. noble and compassionate objectives of the law.
On April 29, 2004, the CA rendered a [29]
decision[22] reversing the ruling of the RTC.  It
held that petitioner failed to adduce in However, in Cang v. Court of Appeals,[30] the
evidence the voluntary consent of Amelia Court also ruled that the liberality with which
Ramos, the children's natural mother. this Court treats matters leading to adoption
Moreover, the affidavit of consent of the insofar as it carries out the beneficent purposes
petitioner's children could not also be admitted of the law to ensure the rights and privileges of
in evidence as the same was executed in the adopted child arising therefrom, ever
Guam, USA and was not authenticated or mindful that the paramount consideration is the
acknowledged before a Philippine consular overall benefit and interest of the adopted
office, and although petitioner has a job, she child, should be understood in its proper
was not stable enough to support the children.  context and perspective.  The Court's position
The dispositive portion of the CA decision should not be misconstrued or misinterpreted
reads: as to extend to inferences beyond the
WHEREFORE, premises considered, the contemplation of law and jurisprudence. Thus,
appealed decision dated November 25, 2002 of the discretion to approve adoption proceedings
the Regional Trial Court, Branch 63, Tarlac is not to be anchored solely on best interests of
City in Spec. Proc. No. 2733 is hereby the child but likewise, with due regard to the
REVERSED and SET ASIDE. natural rights of the parents over the child.[31]
SO ORDERED.[23] Section 9 of Republic Act No. 8552, otherwise
Petitioner filed a Motion for known as the Domestic Adoption Act of 1998,
Reconsideration[24] on May 21, 2004, which the provides:
CA denied in its Resolution dated August 12, Sec. 9.  Whose Consent is Necessary to the
2004.[25] Adoption. - After being properly counseled and
informed of his/her right to give or withhold
Petitioner, thus, filed the instant petition for his/her approval of the adoption, the written
review on certiorari[26] on September 7, 2004, consent of the following to the adoption is
assigning the following errors: hereby required:
(a)     The adoptee, if ten (10) years
of age or over;
1. THAT THE
HONORABLE LOWER     
(b      The biological parent(s) of
COURT HAS
OVERLOOKED AND ) the child, if known, or the
MISAPPLIED SOME legal guardian, or the proper
government instrumentality
FACTS AND
CIRCUMSTANCES which has legal custody of
the child;
WHICH ARE OF
WEIGHT AND     
(c)     The legitimate and adopted
IMPORTANCE AND
WHICH IF sons/daughters, ten (10) years
of age or over, of the
CONSIDERED WOULD
HAVE AFFECTED THE adopter(s) and adoptee, if
any;
RESULT OF THE
CASE.     
(d      The illegitimate
) sons/daughters, ten (10) years
2. THAT THE
of age or over, of the adopter,
HONORABLE LOWER
if living with said adopter and
COURT ERRED IN
the latter's souse, if any;
CONCLUDING THAT
THE PETITIONER-
(e)     The spouse, if any, of the
APPELLEE IS NOT
person adopting or to be
FINANCIALLY
adopted.
CAPABLE TO

The general requirement of consent and notice
to the natural parents is intended to protect the
natural parental relationship from unwarranted
interference by interlopers, and to insure the
opportunity to safeguard the best interests of
the child in the manner of the proposed
adoption.[32]
Clearly, the written consent of the biological
parents is indispensable for the validity of a
decree of adoption.  Indeed, the natural right of
a parent to his child requires that his consent
must be obtained before his parental rights and
duties may be terminated and re-established in
adoptive parents. In this case, petitioner failed
to submit the written consent of Amelia Ramos
to the adoption.
We note that in her Report, Pagbilao declared
that she was able to interview Amelia Ramos
who arrived in the Philippines with her son,
John Mario in May 2002.  If said Amelia
Ramos was in the Philippines and  Pagbilao
was able to interview her, it is incredible that
the latter would not require Amelia Ramos to
execute a Written Consent to the adoption of
her minor children.  Neither did the petitioner
bother to present Amelia Ramos as witness in
support of the petition.
Petitioner, nonetheless, argues that the written
consent of the biological mother is no longer
necessary because when Amelia's husband
died in 1990, she left for Italy and never came
back.  The children were then left to the
guidance and care of their paternal
grandmother.  It is the paternal relatives,
including petitioner, who provided for the
children's financial needs.  Hence, Amelia, the
biological mother, had effectively abandoned
the children.  Petitioner further contends that it
was by twist of fate that after 12 years, when
the petition for adoption was pending with the
RTC that Amelia and her child by her second
marriage were on vacation in the Philippines.  communicate with you?
Pagbilao, the DSWD social worker, was able
to meet her, and during the meeting, Amelia
intimated to the social worker that she
conformed to the adoption of her three children
by the petitioner.
Petitioner's contention must be rejected.  When
she filed her petition with the trial court, Rep.
Act No. 8552 was already in effect.  Section 9
thereof provides that if the written consent of
the biological parents cannot be obtained, the
written consent of the legal guardian of the
minors will suffice.  If, as claimed by
petitioner, that the biological mother of the
minors had indeed abandoned them, she
should, thus have adduced the written consent
of their legal guardian.
Ordinarily, abandonment by a parent to justify
the adoption of his child without his consent, is
a conduct which evinces a settled purpose to
forego all parental duties.[33] The term means
neglect and refusal to perform the filial and
legal obligations of love and support.  If a
parent withholds  presence, love, care, the
opportunity to display filial affection, and
neglects to lend support and maintenance, the
parent, in effect, abandons the child.[34]
Merely permitting the child to remain for a
time undisturbed in the care of others is not
such an abandonment.[35]  To dispense with the
requirement of consent, the abandonment must
be shown to have existed at the time of
adoption.[36]
In this case, petitioner relied solely on her
testimony and that of Elaine Ramos to prove
her claim that Amelia Ramos had abandoned
her children.  Petitioner's testimony on that
matter follows:
Q      Where is the mother of these
three children now?
A      She left for Italy on November
20, 1990, sir.
    
Q      At the time when Amelia
Ramos left for Italy, was there
an instance where she
communicated with the
family?
A      None, sir.
Q      How about with her children?
A      None, sir.
    
Q      Do you know what place in
Italy did she reside?
A      I do not know, sir.
    
Q      Did you receive any news
about Amelia Ramos?
A      What I know, sir, was that she
was already married with
another man.
    
Q      From whom did you learn
that?
A      From others who came from
Italy, sir.
    
Q      Did you come to know
whether she has children by
her second marriage?
A      Yes, sir, she got two kids.[37]
Elaine, the eldest of the minors, testified, thus:
Q      Where is your mother now?
A      In Italy, sir.
    
Q      When did your mother left for
Italy?
A      After my father died, sir.
    
Q      How old were you when your
mother left for Italy in  1990?
A      Two years old, sir.
    
Q      At the time when your mother
left for Italy, did your mother
A      No, sir.[38]
However, the Home Study Report of the
DSWD Social Worker also stated the
following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings
had been under the care and custody of their
maternal grandmother.  However, she died in
Nov. 2001 and an uncle, cousin of their
deceased father now serves as their guardian.  not miss her guidance and counsel if they are
The petitioner, together with her children
and other relatives abroad have been
supporting the minor children financially,
even during the time that they were still
living with their natural parents.  Their
mother also sends financial support but very
minimal.[39]
xxxx
V. Background Information about the Minors
Being Sought for Adoption:
xxxx
As the eldest she tries her best to be a role
model to her younger siblings.  She helps them
in their lessons, works and has fun with them.  any evidentiary weight on documents unless
She also encourages openness on their
problems and concerns and provides petty
counseling.  In serious problems she already
consult (sic) her mother and petitioner-aunt.
[40]
xxxx
In their 5 years of married life, they begot 3
children, herein minors, Amelia recalled that
they had a happy and comfortable life.  After
the death of her husband, her in-laws which
include the petitioner had continued providing
support for them.  However being ashamed of
just depending on the support of her husband's
relatives, she decided to work abroad.  Her
parents are also in need of financial help as
they are undergoing maintenance medication. 
Her parents mortgaged their farm land which
she used in going to Italy and worked as
domestic helper.
When she left for Italy in November 1990, she
entrusted her 3 children to the care & custody
of her mother-in-law who returned home for
good, however she died on November 2000.
While working in Italy, she met Jun Tayag, a
married man from Tarlac.  They became live-
in partners since 1995 and have a son John
Mario who is now 2 years old.  The three of
them are considered Italian residents.  Amelia
claimed that Mr. Tayag is planning to file an
annulment of his marriage and his wife is
amenable to it.  He is providing his legitimate
family regular support.
Amelia also sends financial support ranging
from P10,000-P15,000 a month through her
parents who share minimal amount of
P3,000-P5,000 a month to his (sic) children. 
The petitioner and other paternal relatives are
continuously providing support for most of the
needs & education of minors up to present.[41]
Thus, when Amelia left for Italy, she had not
intended to abandon her children, or to
permanently sever their mother-child
relationship.  She was merely impelled to leave
the country by financial constraints.  Yet, even
while abroad, she did not surrender or
relinquish entirely her motherly obligations of
rearing the children to her now deceased
mother-in-law, for, as claimed by Elaine
herself, she consulted her mother, Amelia, for
serious personal problems.  Likewise, Amelia
continues to send financial support to the
children, though in minimal amounts as
compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the
adoption of the minors herein will have the
effect of severing all legal ties between the
biological mother, Amelia, and the adoptees,
and that the same shall then be vested on the
adopter.[42]  It would thus be against the spirit
of the law if financial consideration were to be
the paramount consideration in deciding
whether to deprive a person of parental
authority over his/her children.  More proof
has to be adduced that Amelia has emotionally
abandoned the children, and that the latter will
given to an adopting parent.[43] Again, it is the
best interest of the child that takes precedence
in adoption.
Section 34, Rule 132 of the Rules of Court
provides that the Court shall consider no
evidence which has not been formally offered. 
The purpose for which the evidence is offered
must be specified.  The offer of evidence is
necessary because it is the duty of the Court to
rest its findings of fact and its judgment only
and strictly upon the evidence offered by the
parties.  Unless and until admitted by the court
in evidence for the purpose or purposes for
which such document is offered, the same is
merely a scrap of paper barren of probative
weight.  Mere identification of documents and
the markings thereof as exhibits do not confer
formally offered.[44]
Petitioner failed to offer in evidence
Pagbilao�s Report and of the Joint Affidavit
of Consent purportedly executed by her
children; the authenticity of which she,
likewise, failed to prove. The joint written
consent of petitioner's children[45] was
notarized on January 16, 2002 in Guam, USA; 
for it to be treated by the Rules of Court in the
same way as a document notarized in this
country it needs to comply with Section 2 of
Act No. 2103,[46] which states:
Section 2. An instrument or document
acknowledged and authenticated in a foreign
country shall be considered authentic if the
acknowledgment and authentication are made
in accordance with the following requirements:
(a)  The acknowledgment shall be made before
(1) an ambassador, minister, secretary of
legation, chargé d affaires, consul, vice-
consul, or consular agent of the Republic of the
Philippines, acting within the country or place
to which he is accredited, or (2) a notary public
or officer duly authorized by law of the
country to take acknowledgments of
instruments or documents in the place where
the act is done.
(b)  The person taking the acknowledgment
shall certify that the person acknowledging the
instrument or document is known to him, and
that he is the same person who executed it, and
acknowledged that the same is his free act and
deed.  The certificate shall be under his official
seal, if he is by law required to keep a seal, and
if not, his certificate shall so state.  In case the
acknowledgment is made before a notary
public or an officer mentioned in subdivision
(2) of the preceding paragraph, the certificate
of the notary public or the officer taking the
acknowledgment shall be authenticated by an
ambassador, minister, secretary of
legation, chargé de affaires, consul, vice-
consul, or consular agent of the Republic of the
Philippines, acting within the country or place
to which he is accredited.  The officer making
the authentication shall certify under his
official seal that the person who took the
acknowledgment was at the time duly
authorized to act as notary public or that he
was duly exercising the functions of the office
by virtue of which he assumed to act, and that
as such he had authority under the law to take
acknowledgment of instruments or documents
in the place where the acknowledgment was
taken, and that his signature and seal, if any,
are genuine.
As the alleged written consent of petitioner's
legitimate children did not comply with the
afore-cited law, the same can at best be treated
by the Rules as a private document whose
authenticity must be proved either by anyone
who saw the document executed or written; or
by evidence of the genuineness of the signature
or handwriting of the makers.[47]
child or children, in keeping with the means of
the family.
According to the Adoption Home Study
Report[49] forwarded by the Department of
Public Health & Social Services of the
Government of Guam to the DSWD, petitioner
is no longer supporting her legitimate children,
as the latter are already adults, have individual
lives and families.  At the time of the filing of
the petition, petitioner was 57 years old,
employed on a part-time basis as a waitress,
earning $5.15 an hour and tips of around
$1,000 a month.  Petitioner's main intention in
adopting the children is to bring the latter to
Guam, USA.  She has a house at Quitugua
Subdivision in Yigo, Guam, but the same is
still being amortized.  Petitioner likewise
knows that the limited income might be a
hindrance to the adoption proceedings.
Given these limited facts, it is indeed doubtful
whether petitioner will be able to sufficiently
handle the financial aspect of rearing the three
children in the US.  She only has a part-time
job, and she is rather of age.  While petitioner
claims that she has the financial support and
backing of her children and siblings, the OSG
is correct in stating that the ability to support
the adoptees is personal to the adopter, as
adoption only creates a legal relation between
the former and the latter.  Moreover, the
records do not prove nor support petitioner's
allegation that her siblings and her children are
financially able and that they are willing to
support the minors herein.  The Court,
therefore, again sustains the ruling of the CA
on this issue.
While the Court recognizes that petitioner has
only the best of intentions for her nieces and
nephew, there are legal infirmities that militate
against reversing the ruling of the CA.  In any
case, petitioner is not prevented from filing a
new petition for adoption of the herein minors.
WHEREFORE, premises considered, the
petition is hereby DENIED.
SO ORDERED.

Since, in the instant case, no further proof was

introduced by petitioner to authenticate the
written consent of her legitimate children, the
same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA

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

Since the primary consideration in adoption is

the best interest of the child, it follows that the
financial capacity of prospective parents
should also be carefully evaluated and
considered.  Certainly, the adopter should be in
a position to support the would-be adopted
7) Custody
SECOND DIVISION
[ G.R. No. 235498, July 30, 2018 ]
RENALYN A. MASBATE AND SPOUSES
RENATO MASBATE AND MARLYN
MASBATE, PETITIONERS, VS. RICKY
JAMES RELUCIO, RESPONDENT.
Appeals; Dismissal of Actions;
Dismissal of appeals purely on technical
grounds is frowned upon.—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’s Order
dated December 4, 2015, which 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.
Constitutional Law; Children; 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.—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. 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.
Remedial Law; Special Civil Actions;
Writ of Habeas Corpus; Child Custody; In
custody cases involving minors, the writ
of  habeas corpus is prosecuted for the
purpose of determining the right of custody
over a child.—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.” 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.
Civil Law; Family Law; Persons and
Family Relations; Child Custody; Parental
Authority; The right of custody accorded to
parents springs from the exercise of parental
authority.—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.’
Same; Same; Same; Children;
Illegitimate Children; Child Custody;
Parental Authority; Insofar as illegitimate
children are concerned, Article 176 of the
Family Code states that  illegitimate children
shall be under the parental authority of their
mother; In the exercise of that authority,
mothers are consequently entitled to keep
their illegitimate children in their company,
and the Supreme Court (SC) will not deprive
them of custody, absent any imperative cause
showing the mother’s unfitness  to exercise
such authority and care.—As a general rule,
the father and the mother shall jointly exercise
parental authority over the persons of their
common children.However, insofar as
illegitimate children are concerned, Article
176of 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.
Same; Same; Same; Same; Same; Same;
Tender Age Presumption; Article 213 of the
Family 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.”—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 x 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.
Same; Same; Same; Same; Same;
Same; Parental Authority;  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 (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).—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.” 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
parentsbecause 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.
Same; Same; Same; Parental
Authority; Substitute Parental Authority; The
Family Code 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 (21) years   of age,
unless unfit or disqualified; and (3) The
child’s actual custodian, over 21 years of age,
unless unfit or disqualified.—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. 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.
 Same; Same; Same; Child
Custody; 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.”—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. 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.”
Same; Same; Same; Same;  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
Supreme Court (SC) 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.—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, 606
SCRA 101 (2009), 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.
Same; Same; Same; Visitation
Rights;  It  should be stressed that Section 15
of A.M. No. 03-04-04-SC provides for
temporary visitation rights, not temporary
custody.—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,” 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 noncustodial parent or parents,
unless the court finds said parent or parents
unfit or disqualified. The temporary custodian
shall give the court and noncustodial 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 noncustodial 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.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review
on certiorari[1] are the Decision[2] dated January
12, 2017 and the Omnibus Resolution[3] 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, 2015[4] and
January 7, 2016[5] 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 Attorney[7] (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 custody[8] docketed
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 Order[11] 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 Order[17] 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
appeal[20] 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 Decision[25] 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
clarification[32] 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 Resolution[36] 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/Opposition[43] as
well as an Urgent Omnibus Motion[44] 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
parents for the purpose of the children's
physical preservation and development, as well
The main issue for the Court's resolution is as the cultivation of their intellect and the
whether or not the CA correctly remanded the education of their heart and senses. As regards
case a quo for determination of who should parental authority, 'there is no power, but a
exercise custody over Queenie. task; no complex of rights, but a sum of duties;
no sovereignty but a sacred trust for the
The Court's Ruling welfare of the minor.'"[52]
As a general rule, the father and the mother
The petition is partially meritorious. shall jointly exercise parental authority over
the persons of their common children.
[53]
 However, insofar as illegitimate children
I.
are concerned, Article 176[54] of the Family
Code states that illegitimate children shall be
At the outset, it must be stressed that while
under the parental authority of their
petitioners may have erroneously determined
mother. Accordingly, mothers (such as
the expiration of the reglementary period for
Renalyn) are entitled to the sole parental
filing the instant petition, which resulted in the
authority of their illegitimate children (such as
same being filed a day late on November 6,
Queenie), notwithstanding the father's
2017, the Court finds it proper to overlook this
recognition of the child. In the exercise of that
procedural lapse given the compelling merit of
authority, mothers are consequently entitled to
the petition in the interest of substantial justice.
keep their illegitimate children in their
company, and the Court will not deprive them
The Court has declared that rules on the
of custody, absent any imperative cause
perfection of appeals, particularly on the
showing the mother's  unfitness to exercise
period of filing thereof, must occasionally
such authority and care.[55]
yield to the loftier ends of substantial justice
and equity. In the same manner that the CA
In addition, Article 213 of the same Code
took cognizance of respondent's appeal from
provides for the so-called tender-age
the denial of his motion for reconsideration of
presumption, stating that "[n]o child under
the RTC Order dated December 4, 2015,
[46] seven [(7)] years of age shall be separated from
which is technically prohibited under the
the mother unless the court finds compelling
Rules of Court, so shall this Court hold that the
reasons to order otherwise." The rationale
ends of justice would be served better when
behind the rule was explained by the Code
cases are determined, not on mere technicality
Commission in this wise:
or some procedural nicety, but on the merits –
after all the parties are given full opportunity to
The general rule is recommended in order to
ventilate their causes and defenses. Lest it be
avoid many a tragedy where a mother has seen
forgotten, dismissal of appeals purely on
her baby torn away from her. No man can
technical grounds is frowned upon. The rules
sound the deep sorrows of a mother who is
of procedure ought not to be applied in a very
deprived of her child of tender age. The
rigid, technical sense, for they have been
exception allowed by the rule has to be for
adopted to help secure – not override –
"compelling reasons" for the good of the child;
substantial justice.[47]
those cases must indeed be rare, if the mother's
heart is not to be unduly hurt. x x x[56]
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
According to jurisprudence, the following
protecting the welfare of children, shall not be
instances may constitute "compelling reasons"
disregarded by the courts by mere technicality
to wrest away custody from a mother over her
in resolving disputes which involve the family
child although under seven (7) years of age:
and the youth.[48] The State is mandated to
neglect, abandonment, unemployment,
provide protection to those of tender years.
immorality, habitual drunkenness, drug
Through its laws, it safeguards them from
everyone, even their own parents, to the end addiction, maltreatment of the child, insanity
or affliction with a communicable disease.[57]
that their eventual development as responsible
citizens and members of society shall not be
As the records show, the CA resolved to
impeded, distracted or impaired by family
remand the case to the RTC, ratiocinating that
acrimony.[49]
there is a need to establish whether or not
Renalyn has been neglecting Queenie,[58] for
Accordingly, the Court shall delve into the
which reason, a trial is indispensable for
substantive arguments propounded in this case.
reception of evidence relative to the
preservation or overturning of the tender-age
II.
presumption under Article 213 of the Family
Code.[59] In opposition, petitioners contend that
It is settled that habeas corpus may be resorted
the second paragraph of Article 213 of the
to in cases where "the rightful custody of any
Family Code would not even apply in this case
person is withheld from the person entitled
(so as to determine Renalyn's unfitness as a
thereto."[50] In custody cases involving
mother) because the said provision only
minors, the writ of habeas corpus  is
applies to a situation where the parents are
prosecuted for the purpose of determining the
married to each other.[60] As basis, petitioners
right of custody over a child. The grant of the
rely on the Court's ruling in Pablo-Gualberto
writ depends on the concurrence of the
v. Gualberto V[61] (Pablo-Gualberto), the
following requisites: (1) that the petitioner has
pertinent portion of which reads:
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) In like manner, the word "shall" in Article 213
that it is to the best interest of the minor of the Family Code and Section 6 of Rule 99 of
concerned to be in the custody of petitioner the Rules of Court has been held to connote a
and not that of the respondents.[51] mandatory character. Article 213 and Rule 99
similarly contemplate a situation in which
"The right of custody accorded to parents the parents of the minor are married to each
springs from the exercise of parental authority. other, but are separated by virtue of either a
Parental authority or patria potestas in Roman decree of legal separation or a de
Law is the juridical institution whereby parents facto  separation. x x x[62]
rightfully assume control and protection of
their unemancipated children to the extent
required by the latter's needs. It is a mass of For easy reference, Article 213 of the Family
Code and Section 6, Rule 99 of the Rules of
rights and obligations which the law grants to
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. Miguel[63] (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-Gualbertoinvoked 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 to children under seven (7) years of age, which
follows: may be overcome only by compelling evidence
of the mother's unfitness.[76] Until and unless
Section 15. Temporary visitation rights. – The Ricky James is able to substantiate his
court shall provide in its order awarding allegations, he can only claim visitation rights
provisional custody appropriate visitation over his daughter.
rights to the non-custodial parent or parents,
unless the court finds said parent or parents WHEREFORE, the petition is PARTLY
unfit or disqualified. GRANTED. The Decision dated January 12,
2017 and the Omnibus Resolution dated
The temporary custodian shall give the court October 3, 2017 of the Court of Appeals in
and non-custodial parent or parents at least five CA-G.R. SP No. 144406 are
days' notice of any plan to change the hereby AFFIRMED with
residence of the minor or take him out of his the MODIFICATION deleting the grant of
residence for more than three days provided it limited and temporary custody for lack of legal
does not prejudice the visitation rights of the and factual basis. The grant of visitation rights
non-custodial parent or parents. of two (2) days per week shall be maintained.
Respondent Ricky James Relucio may take his
daughter, Queenie Angel M. Relucio, out but
It is only after trial, when the court renders its only with the written consent of petitioner
judgment awarding the custody of the minor to Renalyn A. Masbate in accordance with this
the proper party, that the court may likewise Decision.
issue "any order that is just and reasonable
permitting the parent who is deprived of the The Regional Trial Court of Legazpi City,
care and custody of the minor to visit or have Albay, Branch 8 is DIRECTED to
temporary custody," pursuant to Section 18 of immediately proceed with hearing Special
A.M. No. 03-04-04-SC, to wit: Proceeding No. FC-15-239 upon notice of this
Decision.
Section 18. Judgment. – After trial, the court
SO ORDERED.
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