JOYCELYN PABLO-GUALBERTO vs. CRISANTO RAFAELITO GUALBERTO V FACTS: On March 12, 2002, Crisanto Rafaelito G.

Gualberto Va petition for declaration of nullity of his marriage to Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente lite of their almost 4-yearold son, minor Rafaello whom Joycelyn allegedly took away with her from the conjugal home and his school when she decided to abandon Crisanto sometime in early February 2002. After the trial of the case, custody of the child was awarded to Crisanto. Consequently, Joycelyn filed a motion to dismiss the order. The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under Article 213 of the Family Code, he shall not be separated from his mother unless the Court finds compelling reasons to order otherwise. The Court finds the reason stated by Crisanto not to be compelling reasons. The father should however be entitled to spend time with the minor. These do not appear compelling reasons to deprive him of the company of his child. The court thereby granted the mother the custody of the child. In a Petition for Certiorari before the CA, Crisanto charged the Regional Trial Court (Branch 260) of Paraaque 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 He alleged that this Order superseded, without any factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him custody pendente lite of his minor son; and that it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. The court ruled in his favor. ISSUE: Whether or not custody of the minor child shall be awarded to the mother? HELD: The Supreme Court ruled in the affirmative. When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often over the custody of their children. The Court is now tasked to settle the opposing claims of the parents for custody pendente lite of their child who is less than seven years old.30 On the one hand, the mother insists that, based on Article 213 of the Family Code, her minor child cannot be separated from her. On the other hand, the father argues that she is "unfit" to take care of their son; hence, for "compelling reasons," he must be awarded custody of the child. Article 213 of the Family Code31 provides: "ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise." This Court has held that when the parents are separated, legally or otherwise, the foregoing provision governs the custody of their child.32 Article 213 takes its bearing from Article 363 of the Civil Code, which reads: "Art. 363. In all questions on the care, custody, education and property of children, the latters 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 detre in the basic need of minor children for their mothers 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 mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission, p. 12) A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No. 603).34 Article 17 of the same Code is even more explicit in providing for the childs 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 fathers 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 parents 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." The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is unmistakable from the language of these provisions that Article 21135 was derived from the first sentence of the aforequoted Article 17; Article 212 from the second sentence; and Article 213 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.

MIGUEL R. UNSON III vs. HON. PEDRO C. NAVARRO AND EDITA N. ARANETA FACTS: Petition for certiorari to have the order of respondent judge of December 28, 1979 ordering petitioner to produce the child, Maria Teresa Unson, his daughter barely eight years of age, with private respondent Edita N. Araneta and return her to the custody of the later, further obliging petitioner to "continue his support of said daughter by providing for her education and medical needs," allegedly issued without a "hearing" and the reception of testimony in violation of Section 6 of Rule 99. Petitioner and private respondent were married on April 19, 1971 and out of that marriage the child in question, Teresa, was born on December 1, 1971. However, as stated in a decision rendered on August 23, 1974 in Civil Case No. 7716 of respondent judge himself, on July 13, 1974 they executed an agreement for the separation of their properties and to live separately, as they have in fact been living separately since June 1972. The agreement was approved by the Court. The parties are agreed that no specific provision was contained in said agreement about the custody of the child because the husband and wife would have their own private arrangement in that respect. ISSUE : Whether or not custody of the minor child shall be awarded to the mother? HELD: The court favored in the affirmative. It is axiomatic in Our jurisprudence that in controversies regarding the custody of minors the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents. Never has this Court diverted from that criterion. With this premise in view, the Court finds no difficulty in this case in seeing that it is in the best interest of the child Teresa to be freed from the obviously unwholesome, not to say immoral influence, that the situation in which private respondent has placed herself, as admitted by her, might create in the moral and social outlook of Teresa who is now in her formative and most impressionable stage in her life. The fact, that petitioner might have been tolerant about her stay with her mother in the past when she was still too young to distinguish between right and wrong and have her own correct impressions or notions about the unusual and peculiar relationship of her mother with her own uncle-in-law, the husband of her sister's mother, is hardly of any consequence now that she has reached a perilous stage in her life. No respectable father, properly concerned with the moral well-being of his child, specially a girl, can be expected to have a different attitude than petitioner's in this case. Under the circumstances thus shown in the record, the Court finds no alternative than to grant private respondent no more than visitorial rights over the child in question. Anyway, decisions even of this Supreme Court on the custody of minor children are always open to adjustment as the circumstances relevant to the matter may demand in the light of the inflexible criterion

HORACIO LUNA and LIBERTY HIZON-LUNA vs IAC Maria Lourdes Santos is an illegitimate child of the petitioner Horacio Luna who is married to his copetitioner Liberty Hizon-Luna. Maria Lourdes Santos is married to her correspondent Sixto Salumbides, and are the parents of Shirley Santos Salumbides, also known as Shirley Luna Salumbides, who is the subject of this child custody case. It appears that two or four months after the birth of the said Shirley Salumbides on April 7, 1975, her parents gave her to the petitioners, a childless couple with considerable means. A few months before September, 1980, petitioners decided to take Shirley abroad. However, when the petitioners asked for the respondents' written consent to the child's application for a U.S. visa, the respondents refused to give it, to the petitioners' surprise and chagrin Shirley was utterly disappointed. As a result, the petitioners had to leave without Shirley whom they left with the private respondents, upon the latter's request. The petitioners, however, left instructions with their chauffeur to take and fetch Shirley from Maryknoll College every school day. When the petitioners returned on October 29, 1980, they learned that the respondents had transferred Shirley to the St. Scholastica College. The private respondents also refused to return Shirley to them. Neither did the said respondents allow Shirley to visit the petitioners. When the petitioners returned on October 29, 1980, they learned that the respondents had transferred Shirley to the St. Scholastica College. The private respondents also refused to return Shirley to them. Neither did the said respondents allow Shirley to visit the petitioners. In view thereof, the petitioners filed a petition for habeas corpus against the private respondents to produce the person of Shirley and deliver her to their care and custody. The lower court ruled in favor of the petitioner and granted the custody of the child t them. Consequently, private respondents file an appeal however their motion were denied. Hence, this petition. ISSUE: Whether or not custody of the minor child shall be awarded to the petitioner? HELD: The Court find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or run away from home if she should be taken away from the herein petitioners and forced to live with the private respondents, made during the hearings on the petitioners' motion to set aside the writ of execution and reiterated in her letters to the members of the Court dated September 19, 1984 and January 2, 1985, and during the hearing of the case before this Court, is a circumstance that would make the execution of the judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal inequitable, unfair and unjust, if not illegal. Article 363 of the Civil Code provides that in all questions relating to the care, custody, education and property of the children, the latter's welfare is paramount. This means that the best interest of the minor can override procedural rules and even the rights of

parents to the custody of their children. Since, in this case, the very life and existence of the minor is at stake and the child is in an age when she can exercise an intelligent choice, the courts can do no less than respect, enforce and give meaning and substance to that choice and uphold her right to live in an atmosphere conducive to her physical, moral and intellectual development. The threat may be proven empty, but Shirley has a right to a wholesome family life that will provide her with love, care and understanding, guidance and counseling. and moral and material security.

IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA vs. MR. & MRS. BARTOLOME CABANGBANG ET AL FACTS: Pacita Chua worked as a hostess, lived with Chua Ben in 1950 (had a child who died in infancy). Cohabit then with Sy Sia Lay (Robert and betty chua sy as fruits). After bettys birth, they separated. She then became Victoran Villarreals mistress. In 1960, a girl was born to her but then they separated and she gave the child away to a commander in Cebu. May1958 Bartolome Cabangbang and wife acquired custody of betty (4 months old) and had her baptized as Grace Cabangbang. Trial Court said that Betty was given to Cabangbangs by Villareal. Pacita demanded the custody of the child, filed for habeas corpus. Trial Court eventually ruled that for the welfare of the child, she should remain in the custody of the Cabangbangs. ISSUE: Whether or not the child should be with Pacita Chua? HELD: NO. NCC 363 says that minor under 7 shall not be separated from mother, but issue is now moot as grace is already 11 The courts may, in cases specified by law, deprive parents of their [parental] authority." And there are indeed valid reasons, as will presently be expounded, for depriving the petitioner of parental authority over the minor Betty Chua Sy or Grace Cabangbang. Petitioner did not at all - not ever - report to the authorities the alleged disappearance of her daughter, and had not been taken any step to see the child when she allegedly discovered that she was in the custody of the Cabangbangs. Art. 332 of the Civil Code provides, inter alia:

"The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders, counsels, or examples, or should make them beg or abandon them." Record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child She surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the lapse of a period of five long years, before she brought action to recover custody Her own unadulterated testimony under oath - that she wants the child back so that Sy Sia Lay, the alleged father, would resume providing the petitioner the support which he peremptorily withheld and ceased to give when she gave the child away. she expressed her willingness that the child remain with the Cabangbangs provided the latter would in exchange give her a jeep and some money She needs the child as a leverage to obtain concessions - financial and otherwise - either from the alleged father or the Cabangbangs. If she gets the child back, support for her would be forthcoming - or so she thinks - from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep the child, she would agree provided they gave her a jeep and some money. Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up her youngest child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it. Petitioner has no regular source of income. There is no assurance at all that the alleged father, Sy Sia Lay - an unknown quantity, as far as the record goes - would resume giving the petitioner support once she and the child are reunited. But the record indubitably pictures the Cabangbang spouses as a childless couple of consequence in the community, who have given her their name and are rearing her as their very own child, and with whom there is every reason to hope she will have a fair chance of normal growth and development into respectable womanhood.

Johnston v. Republic FACTS: June 24, 1960: Petition for Adoption of Ana Isabel Henriette Antonio Concepcion Georgiana by Isabel Valdes Johnston. The 2-yr.-10-mo. old baby was then under the custody of the orphanage Hospicio de San Jose whose Mother Superior consented to the adoption. As alleged in the petition, Isabel was then married to Raymond Arthur Johnston who also consented to the adoption. Adoption was granted but surname of the child was changed to Valdes because it was held as the surname of the petitioner. In October 24, 1960, Motion to change the surname to Valdes Johnston.

ISSUE: Whether or not adopted child can use the surname of adopters husband? Held: No, because only Isabel adopted Ana, only her surname can be used by the child. NCC 341 (4): Adopted minor is entitled to use the adopters surname. The husband of Isabel did not join in the adoption. His consent to the adoption did not have the effect of making him an adopting father. Hence, his surname cannot be used because it would give the wrong impression that he adopted Ana also and wrongly entitle Ana to the status of his legitimate child under NCC 341 (1).