PALE Group Work

Written Assignment 6
Answer No. 3, Group 4

A. Legal Opinion

Baingan, Cainguitan, Daracan & Guingab Law Firm

Santiago City
bcdglawfirm2021@yahoo.com

November 18, 2021

Abauag St. Centro East, City Road

Santiago City

Re: Possible child custody proceeding between father and in-laws

Dear Mr Jaewon:

This refers to your request for legal opinion on the matter of filing a case as
regards rightful custody to your daughter Jaime.

The following are the facts presented as per discussed: You intend to exercise fully
your parental authority in raising your 6 year old daughter who is currently under the care
of your in-laws. Your daughter lives a comfortable life with them but you were doing
your best to support her as well.

As far as Philippine law is concerned, parental authority over minor children is

jointly exercised by both parents. Should there be any disagreement, the decision of the
father shall prevail, unless there is a judicial order to the contrary (Article 211, Family
Code of the Philippines [FCP]).

The issue here is clear: Whether you have the rightful custody or not. In our
opinion, you have the right to claim custody over your daughter. Let us take into
consideration the provision of the law which provides that “the exercise of parental
authority includes, among others, the right to have custody over the minor children,
the duty to support, educate and instruct them by right precept and good example,
provide for their upbringing in keeping with their means, impose discipline on them
as may be required under the circumstances, as well as to represent them in all
matters affecting their interests.” (Articles 220 (1), (5) and (7), FCP).
 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. Considering that you are currently working and earning, we believe that you can
raise well your daughter and provide for her needs.

As discussed in the case of Gualberto vs Gualberto, GR No. 154994, Art. 17

Joint Parental Authority of the PD No. 603 provides that The father and 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.

A verified petition for the rightful custody of a minor may be filed by any person
claiming such right. Thus you can ably do so if you intend to exercise sole custody of
Jaime. We reiterate that the parents of the minor child shall have the right to custody over
their children. The right of custody accorded to parent springs from the exercise of
parental authority.

Under the Family Code, the father and the mother shall jointly exercise parental
authority over the persons of their common children..

Since your wife died, you as the child’s biological father have every right and can
claim shall continue exercising sole parental authority over your child Jaime. Your
daughter certainly needs your physical presence all the time for her to feel the love and
care from you as her father.

One thing: considering all these provisions we can honestly opine that you have
better rights as to legal custody than your in-laws. Our opinion is based on the laws and
the jurisprudence applicable to your situation. If by any circumstance you take your
plight to court, we are confident that the case will be decided in your favor.

Very truly yours,

 (Sgd.) BCDG Firm

B.

We weighed the situation and the facts presented and our stand as lawyers is to
opine that the father Jaewon deserves to claim the sole custody of his 6 year old daughter
without jeopardizing the best interest of the child because it is a primary consideration

The well-being of the child is of paramount importance. According to Article 213

of the Family Code, the paramount criterion when it comes to child custody is the
welfare of the child. This means the court will take into careful consideration the
capabilities of both mother and father to raise the child, including their moral, social, and
economic situation.

As stated in Article 213 of the Family Code, “Every child has rights which are
not and should not be dependent solely on the wishes, much less the whims and caprices,
of his parents. His welfare should not be subject to the parents’ say-so or mutual
agreement alone.”

Parental authority is inalienable. Unless it is expressly authorized by the law,

parents cannot simply give up and/or transfer their parental authority and responsibilities.
The only exception to this is in cases the child being surrendered to a home or an
orphanage, as well as guardianship and adoption.

When a parent entrusts his minor child’s custody and care to a relative or a friend,
this only entails temporary 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

A.M. No. 03-04-04-SC, which took effect on 15 May 2003, provides for the
Rules on Custody of Minors.

Section 14. Factors to consider in determining custody. - In awarding custody, the

court shall consider the best interests of the minor and shall give paramount consideration
to his 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 his physical, psychological and
emotional development. It also means the least detrimental available alternative for
safeguarding the growth and development of the minor.

The court shall also consider the following:

(a) Any extrajudicial agreement which the parties may have bound themselves to
comply with respecting the rights of the minor to maintain direct contact with the non
custodial parent on a regular basis, except when there is an existing threat or danger of
physical, mental, sexual or emotional violence which endangers the safety and best
interests of the minor;

(b) The desire and ability of one parent to foster an open and loving relationship
between the minor and the other parent;

(c) The health, safety and welfare of the minor;

(h) The most suitable physical, emotional, spiritual, psychological and educational
environment for the holistic development and growth of the minor

We believe all of these are weighed in favor of the child and Jaewon as the father
who deserves to live with his daughter. And in our opinion, there is no violation in the
Code of Professional Responsibility because we cited relevant provisions and we
honestly adhered to the provisions of Rule 15.05 which provides that “when advising
his client, he shall give a candid and honest opinion on the merits and probable
results of the client’s cause.”