CUSTODY (Determining the best interest of the child)

G.R. No. 118870, March 29, 1996

Nerissa Perez vs. Court of Appeals and Ray Perez

Facts:

Petitioner, Nerissa Perez, and private respondent, Ray Perez, were married on December 1986. Petitioner gave birth to Ray
Perez II in New York on July 1992. Nerissa has been working in the US since 1988, and since then became a resident alien in
1992. Ray, a practicing doctor in Cebu, stayed with her twice in the US, however unlike his wife, he only had a tourist visa and
was not employed.
January 1993, the couple went to Cebu for vacation but after a few weeks, petitioner went back to the US alone because Ray
stayed behind to take care of his sick mother and promised to follow with the baby. They then agreed to reside permanently in
the Philippines, but once former was in New York, she changed her mind and continued working.
On their son’s first birthday, Nerissa came back to the Philippines but the two were no longer on good terms. Despite mediation
by the priest who solemnized their marriage, the couple failed to reconcile.
On July 26, 1993, Petitioner filed a petition for habeas corpus asking respondent to surrender the custody of their son, Ray Z.
Perez II, to her. The court a quo awarded the custody of the one-year old child to his mother. Upon appeal by the respondent,
the Court of Appeals reversed the trial court’s order.
Issue:
Who should have the rightful custody of a child?
Held:
It was held that though the parents are separated in fact, Article 213 of the Family Code is the applicable law. Since the Code
does not qualify the word “separation” to mean legal separation decreed by the court, couples who are separated in fact, such
as the petitioner and private respondent, are covered within its terms. The provisions of law quoted clearly that “No child
under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise...”
The use of the word “shall” in Article 213 of Family Code and Rule 99 Section 6 of Revised Rules of Court connotes a mandatory
character.
As explained by the Code of Commission, “the general rule is recommended in order to avoid many a tragedy where the
mother has seen her baby torn away from her. The exception allowed by the rule has to be “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 divorce decree will ordinarily be sufficient punishment for her.”
It has long been settled that in custody cases, the foremost consideration is always the welfare and best interest of the child.
Courts invariably look into all relevant factors presented by the contending parents, such as their material, social and moral
situations.
WHEREFORE, the petition for review is GRANTED. Custody over the minor Ray Z. Perez II is awarded to his mother.