Arts.

194-208
Lim-Lua vs. Lua
G.R. Nos. 175279-80. June 5, 2013.*
VILLARAMA, JR, J.:
The CA should not have allowed all the expenses incurred by respondent to be credited against
the accrued support pendente lite.
FACTS
Petitioner Susan Lim-Lua filed an action for the declaration of nullity of her marriage with
respondent Danilo Y. Lua. In her prayer for support pendente lite for herself and her two
children, petitioner sought the amount of P500,000.00 as monthly support, citing respondent’s
huge earnings from salaries and dividends in several companies and businesses here and abroad.
After due hearing, the Judge granted the support pendente lite in the amount of P250,000.00 to take care of the needs of
the plaintiff. This amount excludes the One hundred thirty-five (P135,000.00) Thousand Pesos for medical attendance
expenses needed by plaintiff for the operation of both her eye[s] which is demandable upon the conduct of such
operation. The amounts already extended to the two (2) children, being a commendable act of defendant, should be
continued by him considering the vast financial resources at his disposal.

Respondent filed a motion for reconsideration, asserting that petitioner is not entitled to spousal
support. Not granted
On appeal, the appellate court said that the trial court should not have completely disregarded the
expenses incurred by respondent consisting of the purchase and maintenance of the two cars,
payment of tuition fees, travel expenses, and the credit card purchases involving groceries, dry
goods and books, which certainly inured to the benefit not only of the two children, but their
mother (petitioner) as well.
ISSUE
whether certain expenses already incurred by the respondent may be deducted from the total
support in arrears owing to petitioner and her children
RULING
NO.
Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity of the
family. The education of the person entitled to be supported referred to in the preceding
paragraph shall include his schooling or training for some profession, trade or vocation, even
beyond the age of majority. Transportation shall include expenses in going to and from school, or
to and from place of work.
Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for
annulment of voidable marriage, or for legal separation, and at any time during the proceeding,
the court, motu proprio or upon verified application of any of the parties, guardian or designated
custodian, may temporarily grant support pendente lite prior to the rendition of judgment or final
order. Because of its provisional nature, a court does not need to delve fully into the merits of the
case before it can settle an application for this relief. All that a court is tasked to do is determine
the kind and amount of evidence which may suffice to enable it to justly resolve the application.
It is enough that the facts be established by affidavits or other documentary evidence appearing
in the record.
In this case, the amount of monthly support pendente lite for petitioner and her two children was
determined after due hearing and submission of documentary evidence by the parties. Although
the amount fixed by the trial court was reduced on appeal, it is clear that the monthly support
pendente lite of P115,000.00 ordered by the CA was intended primarily for the sustenance of
petitioner and her children
Here, the CA should not have allowed all the expenses incurred by respondent to be credited
against the accrued support pendente lite. As earlier mentioned, the monthly support pendente
lite granted by the trial court was intended primarily for food, household expenses such as
salaries of drivers and house helpers, and also petitioner’s scoliosis therapy sessions. Hence, the
value of two expensive cars bought by respondent for his children plus their maintenance cost,
travel expenses of petitioner and Angelli, purchases through credit card of items other than
groceries and dry goods (clothing) should have been disallowed, as these bear no relation to the
judgment awarding support pendente lite.

Mangonon vs. Court of Appeals

G.R. No. 125041. June 30, 2006.
CHICO-NAZARIO, J.:
FACTS
Petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and Rina, a
Petition for Declaration of Legitimacy and Support, with application for support pendente lite.
Petitioner and respondent Frederico got married without the required consent per law, thus, it
was later annulled. After, petitioner gave birth to twins, which was raised by petitioner and her
second husband, as Frederico totally abandoned them. At the time of the institution of the
petition, the twins were about to enter college in the USA where their family moved and settled.
Despite their admissions to said universities, the twins were, however, financially incapable of
pursuing collegiate education because of the costs. Petitioner likewise averred that demands were
made upon Federico and the latter’s father, Francisco, for general support and for the payment of
the required college education of the twins. Petitioner also alleged that the twins are her
legitimate daughters by Federico since the twins were born within seven months from the date of
the annulment of her marriage. However, as Federico failed to sign the birth certificates of the
twins, it was imperative that their status as legitimate children of Federico, and as
granddaughters of Francisco, be judicially declared pursuant to Article 173 of the Family Code.
The trial court, on urgent motion of petitioner, directed the respondents to provide monthly
support for the education of the twins.
ISSUE
Whether or not petitioner and Federico should be the ones to provide the support needed by their
twin daughters pursuant to Article 199 of the Family Code.
RULING
YES.
Under the Rules, a court may temporarily grant support pendente lite prior to the rendition of
judgment or final order. Because of its provisional nature, a court does not need to delve fully
into the merits of the case before it can settle an application for this relief. All that a court is
tasked to do is determine the kind and amount of evidence which may suffice to enable it to
justly resolve the application. It is enough that the facts be established by affidavits or other
documentary evidence appearing in the record. After the hearings conducted on this matter as
well as the evidence presented, we find that petitioner was able to establish, by prima facie proof,
the filiation of her twin daughters to private respondents and the twins’ entitlement to support
pendente lite.
The pertinent provision of the Family Code on this subject states:
ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve
upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters
Here, it was found that petitioner and Federico are the parents of the twins, petitioner and
Federico are primarily charged to support their children’s college education. In view however of
their incapacities, the obligation to furnish said support should be borne by Francisco. Under
Article 199 of the Family Code, Francisco, as the next immediate relative of the twins, is tasked
to give support to his granddaughters in default of their parents. It was established that Francisco
has the financial means to support his granddaughters’ education, he, in lieu of petitioner and
Federico, should be held liable for support pendente lite.
Further, under Article 204 of the Family Code, the obligor is given the choice as to how he could
dispense his obligation to give support. Thus, he may give the determined amount of support to
the claimant or he may allow the latter to stay in the family dwelling. The second option cannot
be availed of in case there are circumstances, legal or moral, which should be considered. In this
case, this Court believes that respondent Francisco could not avail himself of the second option.
With the filing of this case, and the allegations hurled at one another by the parties, the
relationships among the parties had certainly been affected.
Abella vs. Cabañero
G.R. No. 206647. August 9, 2017.*
LEONEN, J.:
Filiation must be established for a child to claim support from a putative father. When “filiation
is beyond question, support follows as [a] matter of obligation.”1 To establish filiation, an action
for compulsory recognition may be filed against the putative father ahead of an action for
support. In the alternative, an action for support may be directly filed, where the matter of
filiation shall be integrated and resolved.
FACTS
In a complaint for support, petitioner Richelle alleged that while she was still a minor in the
years 2000 to 2002, she was repeatedly sexually abused by respondent Cabañero. When she filed
a case for raped and child abuse, both were dismissed.
Richelle prayed for the child’s monthly allowance in the amount of P3,000.00. the Regional Trial
Court dismissed Richelle’s Complaint without prejudice, on account of her failure to implead her
minor child, Jhorylle, as plaintiff.
On appeal, The Court of Appeals ruled that the dismissal of the Complaint was proper as the
filiation and paternity of the child had not been previously established, as the child’s birth
certificate did not indicate that Cabañero was the father and as Cabañero had not done anything
to voluntarily recognize the child as his own.
ISSUE
whether or not filiation proceedings should have first been separately instituted to ascertain the
minor child’s paternity and that without these proceedings having first been resolved in favor of
the child’s paternity claim, petitioner Richelle P. Abella’s action for support could not prosper.
RULING
NO.
An illegitimate child, “conceived and born outside a valid marriage,’’ as is the admitted case with
petitioner’s daughter, is entitled to support.27 To claim it, however, a child should have first been
acknowledged by the putative parent or must have otherwise previously established his or her
filiation with the putative parent.28 When “filiation is beyond question, support [shall then
follow] as [a] matter of obligation.
The judicial remedy to enable this is an action for compulsory recognition. Filiation proceedings
do not merely resolve the matter of relationship with a parent but also secure the legal rights
associated with that relationship: citizenship, support, and inheritance, among others.
Dolina v. Vallecera clarified that since an action for compulsory recognition may be filed ahead
of an action for support, the direct filing of an action for support, “where the issue of compulsory
recognition may be integrated and resolved,” is an equally valid alternative
Remanded to RTC for the matter of Marl Jhorylle Abella’s purported paternal relation with
respondent Policarpio Cabañero and, in the event of a favorable determination on this, to later
rule on the matter of support.

Gotardo vs. Buling

G.R. No. 165166. August 15, 2012.*
BRION, J.:
A prima facie case exists if a woman declares―supported by corroborative proof―that she had
sexual relations with the putative father; at this point, the burden of evidence shifts to the
putative father.
The two affirmative defenses available to the putative father are: (1) incapability of sexual
relations with the mother due to either physical absence or impotency, or (2) that the mother had
sexual relations with other men at the time of conception.
FACTS
respondent Divina Buling filed a complaint, for compulsory recognition and support pendente
lite, claiming that the petitioner is the father of her child Gliffze. In his answer, the petitioner
denied the imputed paternity of Gliffze.
During the pendency of the case, the RTC, on the respondent’s motion, granted a P2,000.00
monthly child support
ISSUE
Whether or not the CA erred in ordering the petitioner to recognize and provide legal support to
his minor son Gliffze
RULING
NO.
In Herrera v. Alba, we stressed that there are four significant procedural aspects of a traditional
paternity action that parties have to face: a prima facie case, affirmative defenses, presumption of
legitimacy, and physical resemblance between the putative father and the child.
We explained that a prima facie case exists if a woman declares―supported by corroborative
proof―that she had sexual relations with the putative father; at this point, the burden of evidence
shifts to the putative father. We explained further that the two affirmative defenses available to
the putative father are: (1) incapability of sexual relations with the mother due to either physical
absence or impotency, or (2) that the mother had sexual relations with other men at the time of
conception.
In this case, the respondent established a prima facie case that the petitioner is the putative father
of Gliffze through testimony that she had been sexually involved only with one man, the
petitioner, at the time of her conception. Rodulfo corroborated her testimony that the petitioner
and the respondent had intimate relationship.
On the other hand, the petitioner did not deny that he had sexual encounters with the respondent,
only that it occurred on a much later date than the respondent asserted, such that it was
physically impossible for the respondent to have been three (3) months pregnant already in
September 1994 when he was informed of the pregnancy. However, the petitioner failed to
substantiate his allegations of infidelity and insinuations of promiscuity. His allegations,
therefore, cannot be given credence for lack of evidentiary support.
Since filiation is beyond question, support follows as a matter of obligation; a parent is obliged
to support his child, whether legitimate or illegitimate.

Mabugay-Otamias vs. Republic

G.R. No. 189516. June 8, 2016.*
LEONEN, J.:
A writ of execution lies against the pension benefits of a retired officer of the Armed Forces of
the Philippines, which is the subject of a deed of assignment drawn by him granting support to
his wife and five (5) children. The benefit of exemption from execution of pension benefits is a
statutory right that may be waived, especially in order to comply with a husband’s duty to
provide support under Article XV of the 1987 Constitution and the Family Code.
FACTS
Edna and Colonel Otamias were married with 5 children, however, they separated due to
infidelity. Their children remained with Edna. Edna filed a Complaint-Affidavit against Colonel
Otamias and demanded monthly support equivalent to 75% of Colonel Otamias’ retirement
benefits. Colonel Otamias executed a Deed of Assignment where he waived 50% of his salary
and pension benefits in favor of Edna and their children. The Deed of Assignment was
considered by the parties as a compromise agreement.
The agreement was honored. However, Edna alleged that the AFP suddenly decided not to honor
the agreement” between Colonel Otamias and his legitimate family. The AFP PGMC informed
Edna that a court order was required for the AFP PGMC to recognize the Deed of Assignment.
Edna thus filed before the RTC an action for support. The trial court ruled in favor of Edna, et al.
and ordered the automatic deduction of the amount of support from the monthly pension of
Colonel Otamias. Edna, et al., through counsel, filed a Motion for Issuance of Writ of Execution,
which writ was later issued by the trial court. The AFP Finance Center filed a Motion to Quash27
the writ of execution and argued that the AFP Finance Center’s duty to disburse benefits is
ministerial. The trial court denied the Motion to Quash.
The AFP PGMC filed before the Court of Appeals a Petition for Certiorari and Prohibition. The
court granted the petition and partially nullified the trial court’s Decision insofar as it directed
the automatic deduction of support from the pension benefits of Colonel Otamias. It discussed
that Presidential Decree No. 1638 “provides for the exemption of the monthly pension of retired
military personnel from execution and attachment.”
ISSUE
Whether or not Colonel Otamias’ pension benefits can be executed upon for the financial support
of his legitimate family.
RULING
YES.
Article 6 of the Civil Code provides that rights may be waived, unless the waiver is contrary to
law, public order, public policy, morals or good customs, or prejudicial to a third person with a
right recognized by law. Provided such rights and privileges rest in the individual, are intended
for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the
right or privilege is not forbidden by law, and does not contravene public policy
In this case, when Colonel Otamias executed the Deed of Assignment, he effectively waived his
right to claim that his retirement benefits are exempt from execution. The right to receive
retirement benefits belongs to Colonel Otamias. His decision to waive a portion of his retirement
benefits does not infringe on the right of third persons, but even protects the right of his family to
receive support. The Deed of Assignment executed by Colonel Otamias was not contrary to law;
it was in accordance with the provisions on support in the Family Code. Hence, there was no
reason for the AFP PGMC not to recognize its validity.
Further, under Section 31 of Presidential Decree No. 1638, Colonel Otamias’ retirement benefits
are exempt from execution. Retirement benefits are exempt from execution so as to ensure that
the retiree has enough funds to support himself and his family.
PARENTAL AUTHORITY
Arts. 209-233
Tamargo vs. Court of Appeals
G.R. No. 85044. June 3, 1992. *
FELICIANO, J.:
We do not consider that retroactive effect may be given to the decree of adoption so as to impose
a liability upon the adopting parents accruing at a time when the adopting parents had no actual
or physical custody over the adopted child. Retroactive effect may perhaps be given to the
granting of the petition for adoption where such is essential to permit the accrual of some benefit
or advantage in favor of the adopted child.
FACTS
Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle
causing injuries which resulted in her death. Accordingly, a civil complaint for damages was
filed by petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and
Aurelia Tamargo, Jennifer's natural parents, against respondent spouses Victor and Clara Bundoc,
Adelberto's natural parents with whom he was living at the time of the tragic incident.
Prior to the incident, spouses Sabas and Felisa Rapisura had filed a petition to adopt the minor
Adelberto Bundoc which was granted after Adelberto had shot and killed Jennifer.
ISSUE
whether or not the effects of adoption, insofar as parental authority is concerned, may be given
retroactive effect so as to make the adopting parents the indispensable parties in a damage case
filed against their adopted child, for acts committed by the latter when actual custody was yet
lodged with the biological parents.
RULING
NO.
the law imposes civil liability upon the father and, in case of his death or incapacity, the mother,
for any damages that may be caused by a minor child who lives with them.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occurred when parental
authority was still lodged in respondent Bundoc spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural parents who had then actual custody of the minor
Adelberto, are the indispensable parties to the suit for damages.
We do not consider that retroactive effect may be given to the decree of adoption so as to impose
a liability upon the adopting parents accruing at a time when the adopting parents had no actual
or physical custody over the adopted child. Retroactive effect may perhaps be given to the
granting of the petition for adoption where such is essential to permit the accrual of some benefit
or advantage in favor of the adopted child. In the instant case, however, to hold that parental
authority had been retroactively lodged in the Rapisura spouses so as to burden them with
liability for a tortious act that they could not have foreseen and which they could not have
prevented would be unfair and unconscionable.

Sagala-Eslao vs. Court of Appeals

G.R. No. 116773. January 16, 1997.
TORRES, JR., J.:
“Parental authority and responsibility are inalienable and may not be transferred or renounced
except in cases authorized by law. The right attached to parental authority, being purely personal,
the law allows a waiver of parental authority only in cases of adoption, guardianship and
surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a
minor to another, such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental authority. Even if a
definite renunciation is manifest, the law still disallows the same.
FACTS
Maria Paz Cordero-Ouye and Reynaldo Eslao were married; after their marriage, the couple
stayed with respondent Teresita Eslao, mother of the husband; that out of their marriage, two
children were begotten, namely, Leslie Eslao and Angelica Eslao; in the meantime, Leslie was
entrusted to the care and custody of petitioner’s mother while Angelica stayed with her parents at
respondent’s house; petitioner intended to bring Angelica with her to Pampanga but the
respondent prevailed upon her to entrust the custody of Angelica to her, respondent reasoning out
that her son just died and to assuage her grief therefor, she needed the company; In the
meantime, the petitioner returned to her mother’s house in Pampanga where she stayed with
Leslie.
Subsequently, petitioner was introduced by her auntie to Dr. James Manabu-Ouye, a Japanese-
American, who is an orthodontist practicing in the United States; their acquaintance blossomed
into a meaningful relationship the petitioner and Dr. James Ouye decided to get married; less
than ten months thereafter, petitioner migrated to San Francisco, California, USA, to join her
new husband. the petitioner returned to the Philippines to be reunited with her children and bring
them to the United States; the petitioner then informed the respondent about her desire to take
custody of Angelica and explained that her present husband, Dr. James Ouye, expressed his
willingness to adopt Leslie and Angelica and to provide for their support and education;
however, respondent resisted the idea by way of explaining that the child was entrusted to her
when she was ten days old and accused the petitioner of having abandoned Angelica.
ISSUE
Whether or not the Teresita has lawful custody over Angelica.
RULING
NO.
[Parental authority] 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. 13 As regards parental authority, ‘there
is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred
trust for the welfare of the minor.’
“Parental authority and responsibility are inalienable and may not be transferred or renounced
except in cases authorized by law. The right attached to parental authority, being purely personal,
the law allows a waiver of parental authority only in cases of adoption, guardianship and
surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a
minor to another, such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental authority. Even if a
definite renunciation is manifest, the law still disallows the same.
“The father and mother, being the natural guardians of unemancipated children, are duty-bound
and entitled to keep them in their custody and company.”
Thus, in the instant petition, when private respondent entrusted the custody of her minor child to
the petitioner, what she gave to the latter was merely temporary custody and it did not constitute
abandonment or renunciation of parental authority. For the right attached to parental authority,
being purely personal, the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children’s home or an orphan institution which do not appear in
the case at bar.

Dempsey vs. Regional Trial Court, Branch LXXV

Nos. L-77737-38. August 15, 1988.
GUTIERREZ, JR., J.:

FACTS
Two separate informations were filed against respondent Joel Dempsey before the Municipal
Trial Court charging him with violation of Article 59 (par. 2) of P.D. 603 and Article 46, par. 8 of
P.D. 603. Upon arraignment, the private respondent freely, voluntarily, and spontaneously
entered a plea of guilty to the offense charged in the Information.
The private respondent appealed the municipal trial court’s decision to the regional trial court
and prayed that the award on civil liability be set aside and the penalty of imprisonment be
reduced to a penalty of fine only.
- Parental authority to which certain parental obligations are attached pertains only to legitimate and adopted
children unlike petitioner who is an acknowledged illegitimate minor child of private respondent; that in
cases of abandonment of minors, the proper forum is the Department of Social Welfare where the person to
whom the minor has been left must report immediately (Art. 161, P.D. 603).
- A person cannot be held criminally liable for failure to support a minor child.
- The Municipal Trial Court had determined a matter not within its competence and authority.

ISSUE
penalty of imprisonment and fine in both cases is sanctioned by the law and jurisprudence and
that the award of civil liability is justified.
RULING
the decision of the municipal trial court was based on the private respondent’s plea of guilty.
Respondent Joel Dempsey did not and does not challenge the validity of Presidential Decree No.
603, Articles 46 and 59 on certain obligations of parents to their children and Articles 60 and 210
penalizing violations of mandatory provisions. As a matter of fact, respondent Dempsey’s appeal
impliedly recognizes the validity of the judgment of conviction because he asked that the penalty
of imprisonment be changed to fine, not that the trial court’s decision was void or that he be
acquitted.
There can be no question about the trial court’s jurisdiction over the criminal prosecutions.
Article 69 of P.D. 603 penalizes abandonment of a minor child by its parent, as provided in
Article 59, with imprisonment from two to six months or a fine not exceeding five hundred pesos
or both. Article 210 penalizes a violation of the obligation to give adequate support found in
Article 46 with imprisonment not exceeding one month or a fine not exceeding two hundred
pesos or both, unless a higher penalty is provided for in the Revised Penal Code or special laws.

- The respondent court erred in its ruling that the trial court determined a matter not within
its competence and authority.
o It is readily apparent that the DSSD cannot take cognizance of and enforce the
criminal sanctions of P.D. 603. Besides, Christina Marie Dempsey is not an
abandoned child in the strict sense of the word as she is still in the custody
and care of her mother. Art. 141 of P.D. 603 defines an abandoned child as
follows: “x x x An abandoned child is one who has no parental care or
guardianship or whose parents or guardians have deserted him for a period of at
least six continuous months x x x.” Article 161 cannot, therefore, be applied to the
case at bar.
 o It is the municipal trial court that has jurisdiction over the case.
- no basis for its gratuitous finding that a parent cannot be held criminally liable under P.D.
603 for withholding support from his minor child.
o The records show, however, that Joel Dempsey’s plea of guilt to the charge of
withholding support from his minor daughter was made without a full
understanding of that particular charge. Janalita Rapada herself testified that she is
receiving $150.00 a month for the support of the minor Christina Marie Dempsey.
The amount of P3,000.00 monthly appears to fulfill the requirement of “adequate
support” found in Par. 8, Art. 46 of P.D. No. 603. What Rapada wants is a
judicial declaration for this support to continue. This cannot be the basis of a
criminal conviction.
o As to the information charging abandonment, the private respondent entered his
plea of guilt with full knowledge of the consequences and meaning of his act and
with the assistance of his counsel. The reversal of conviction based on a plea of
guilty is an act which is not at all explained by the respondent court and,
therefore, in excess of its jurisdiction. It is well-settled as a general rule that a plea
of guilt is sufficient to sustain conviction without introduction of further evidence
- Further, Illegitimate children have rights of the same nature as legitimate and adopted
children. This is enunciated in Art. 3, P.D. 603 which provides that “all children shall be
entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy,
sex, social status, religion, political antecedents, and other factors.”
- the trial court required the accused to recognize Christina Marie as his natural
child. This should not have been done. The recognition of a child by her father is
provided for in the Civil Code and now in the new Family Code. In this criminal
prosecution, where the accused pleaded guilty to criminal charges and the issue of
recognition was not specifically and fully heard and tried, the trial court committed
reversible error when it ordered recognition of a natural child as part of the civil liability
in the criminal case.

Cang vs. Court of Appeals

G.R. No. 105308. September 25, 1998.
ROMERO, J.:
the written consent of the natural parent is indispensable for the validity of the decree of
adoption. Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child or that such parent is “insane or hopelessly intemperate.”
Physical estrangement alone, without financial and moral desertion, is not tantamount to
abandonment. While admittedly, petitioner was physically absent as he was then in the United
States, he was not remiss in his natural and legal obligations of love, care and support for his
children.
FACTS
Petitioner Herbert Cang and Anna Marie Clavano who were married and begot three children.
Upon learning of her husband’s alleged illicit liaison, Anna Marie filed a petition for legal
separation with alimony pendente lite. Petitioner then left for the United States where he sought a
divorce from Anna Marie. Said court issued the divorce decree that also granted sole custody of
the three minor children to Anna Marie, reserving “rights of visitation at all reasonable times and
places” to petitioner.
While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to
P20,000.00 a month, a portion of which was remitted to the Philippines for his children’s
expenses and another, deposited in the bank in the name of his children.
Meanwhile, private respondents, the brother and sister-in-law of Anna Marie, filed Special
Proceedings for the adoption of the three minor Cang children.
- The petition bears the signature of then 14-year-old Keith signifying consent to his
adoption. Anna Marie likewise filed an affidavit of consent alleging that her husband had
“evaded his legal obligation to support” his children; and that her husband had “long
forfeited his parental rights” over the children
Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and
filed an opposition thereto.
Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his
children alleging that Anna Marie had transferred to the United States thereby leaving custody of
their children to private respondents. This was granted since Anna Marie had, in effect,
relinquished custody over the children and, therefore, such custody should be transferred to the
father.
ISSUE
Whether or not minor children be legally adopted without the written consent of a natural parent
on the ground that the latter has abandoned them.
RULING
YES.
Notwithstanding the amendments to the law, the written consent of the natural parent to the
adoption has remained a requisite for its validity.
the written consent of the natural parent is indispensable for the validity of the decree of
adoption. Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child or that such parent is “insane or hopelessly intemperate.”
The court may acquire jurisdiction over the case even without the written consent of the parents
or one of the parents provided that the petition for adoption alleges facts sufficient to warrant
exemption from compliance therewith.
In cases where the father opposes the adoption primarily because his consent thereto was not
sought, the matter of whether he had abandoned his child becomes a proper issue for
determination. The issue of abandonment by the oppositor natural parent is a preliminary issue
that an adoption court must first confront. Only upon failure of the oppositor natural father to
prove to the satisfaction of the court that he did not abandon his child may the petition for
adoption be considered on its merits.
- In its ordinary sense, the word “abandon” means to forsake entirely, to forsake or
renounce utterly. In reference to abandonment of a child by his parent, the act of
abandonment imports “any conduct of the parent which evinces a settled purpose to
forego all parental duties and relinquish all parental claims to the child.” It means
“neglect or refusal to perform the natural and legal obligations of care and support which
parents owe their children.”
In the instant case, records disclose that petitioner’s conduct did not manifest a settled purpose to
forego all parental duties and relinquish all parental claims over his children as to constitute
abandonment. Physical estrangement alone, without financial and moral desertion, is not
tantamount to abandonment. While admittedly, petitioner was physically absent as he was then in
the United States, he was not remiss in his natural and legal obligations of love, care and support
for his children. He maintained regular communication with his wife and children through letters
and telephone. He used to send packages by mail and catered to their whims.
In a number of cases, this Court has held that parental authority cannot be entrusted to a person
simply because he could give the child a larger measure of material comfort than his natural
parent. There should be proof that he had so emotionally abandoned them that his children would
not miss his guidance and counsel if they were given to adopting parents. The letters he received
from his children prove that petitioner maintained the more important emotional tie between him
and his children.
The transfer of custody over the children to Anna Marie by virtue of the decree of legal
separation did not, of necessity, deprive petitioner of parental authority for the purpose of placing
the children up for adoption. Article 213 of the Family Code states: “. . . in case of legal
separation of parents, parental authority shall be exercised by the parent designated by the court.”
In awarding custody, the court shall take into account “all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit.”
As such, in instant case, petitioner may not be deemed as having been completely deprived of
parental authority, notwithstanding the award of custody to Anna Marie in the legal separation
case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of
the spouses.
Pablo-Gualberto vs. Gualberto V
G.R. No. 154994. June 28, 2005.
PANGANIBAN, J.:
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.
FACTS
Crisanto filed a a petition for declaration of nullity of his marriage to x x x Joycelyn with an
ancillary prayer for custody pendente lite of their almost 4-year-old son, minor Rafaello whom
[Joycelyn] allegedly took away with her from the conjugal home and his school when [she]
decided to abandon [Crisanto].
After hearing, Custody pendente lite was given to the mother Joycelyn with the visitation rights
of the father Crisanto.
In a Petition for Certiorari before the CA, Crisanto charged the lower court with grave abuse of
discretion for issuing the said order alleging 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.
ISSUE
1. Whether or not the finality of the April 3, 2002 RTC Order granting Crisanto temporary
custody of his son should be followed.
2. Whether or not the custody of the minor child should be given to Crisanto.
RULING
1. NO
The award of temporary custody, as the term implies, 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; it may be reexamined and adjusted if and when the parent who was
given custody becomes unfit.
- 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.

2. NO.
GENERAL RULE
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.
XPN
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.
Best interest 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. 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, some factors are 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 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

The ground of LESBIANISM

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 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. 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.
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.
- 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.

Other cases
- Unson III v. Navarro, 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
- In Espiritu v. CA, 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.”

Beckett vs. Sarmiento, Jr.

A.M. No. RTJ-12-2326. January 30, 2013
VELASCO, JR., J.:

FACTS
Beckett an Australian national, was previously married to Eltesa a Filipina. Out of the marriage
was born Geoffrey, Jr.
Later, they separated and sued each other. Eltesa filed a case against Beckett for violation of
Republic Act No. (RA) 7610, followed by a suit for the declaration of nullity of their marriage.
On the other hand, Beckett commenced criminal charges against Eltesa, one of which was for
adultery.
The judge rendered judgment3 based on a compromise agreement in which Eltesa and Beckett
agreed and undertook, among others, to cause the dismissal of all pending civil and criminal
cases each may have filed against the other. They categorically agreed too that Beckett shall have
full and permanent custody over Geoffrey, Jr., then five (5) years old, subject to the visitorial
rights of Eltesa.
Thereafter, Beckett left for Australia, taking Geoffrey, Jr. with him. As with his three other
children from previous relationships, so Beckett alleged, he cared and provided well for
Geoffrey, Jr.
Beckett obtained a divorce from Eltesa in Australia. This notwithstanding, the yearly Christmas
visits continued. In the 2010 visit, Beckett consented to have Geoffrey, Jr. stay with Eltesa even
after the holidays, provided she return the child on January 9, 2011. January 9 came and went but
Geoffrey, Jr. remained with Eltesa, prompting Beckett to file a petition against Eltesa for
violation of RA 7610.
And because Geoffrey remained in the meantime in the custody of Eltesa, Beckett later applied
for the issuance of a writ of habeas corpus. Judge Sarmiento ordered Eltesa to return Geoffrey, Jr.
to Beckett. For some reason, the turnover of Geoffrey, Jr. to Beckett did not materialize.
March 15, 2011 Order granting provisional custody in favor of Eltesa despite the existence of the
judicial compromise.
Beckett has instituted the instant complaint. As argued, respondent is liable for (1) gross
ignorance of the law for granting Eltesa provisional custody over Geoffrey Jr
The judge was
ISSUE
Whether or not a judgment involving the custody of a minor child be accorded of the force and
effect of res judicata
RULING
NO.
A judgment involving the custody of a minor child cannot be accorded the force and effect of res
judicata
Respondent judge, in granting provisional custody over Geoffrey, Jr. in favor of his mother,
Eltesa, did not disregard the res judicata rule. the matter of custody is not permanent and
unalterable [and] can always be re-examined and adjusted the simple reason being that the
situation of the parents and even of the child can change, such that sticking to the agreed
arrangement would no longer be to the latter’s best interest.
No child under seven (7) years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise
In disputes concerning post-separation custody over a minor, the well-settled rule is that no child
under seven (7) years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise. And if already over 7 years of age, the child’s choice as to
which of his parents he prefers to be under custody shall be respected, unless the parent chosen
proves to be unfit.
In the light of the foregoing, respondent judge cannot be held guilty of the charges hurled by the
complainant against him for the reason that absent a finding of strong reasons to rule otherwise,
the preference of a child over 7 years of age as to whom he desired to live with shall be
respected. Moreover, custody, even if previously granted by a competent court in favor of a
parent, is not, to reiterate, permanent.
Geoffrey, Jr., at the time when he persistently refused to be turned over to his father, was already
over 7 years of age. As such, he was very much capable of deciding, based on his past
experiences, with whom he wanted to stay.