The Best Interest of the Child, a look into the cases decided by the Supreme Court applying the

Best Interest of the Child Principle

By: Bernhard C. Fulgencio
The best interest of the child, as worded under the UN Convention on the Rights of the
Child (UN-CRC), is the paramount consideration in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies.1 Initially, the best interest of the child was exclusively used as a
guiding principle for those who provide education and guidance. At present, it now serves as a
guide for authorities who are responsible in formulating and deciding other concerns relating to
Children.
Upon the creation of the said convention the drafters not only widened the scope of the
principle, but they also made it one of the umbrella provisions and thereby important for the
overall framework of the Convention. The UN Committee on the Rights of the Child has taken
the principle one step further, defining the best interests of the child as a general principle
guiding the interpretation of the entire Convention.2
Best Interest of the Child in the Philippine Setting
Even before the effectivity of the UN-CRC, President Ferdinand E. Marcos in the 1970s,
have issued Presidential Decree No. 603 the Child and Youth Welfare Code which applied the
best interest principle as a guiding rule for adoption, duties parents, license to operate a childcaring institution, abandonment or neglect and custody. It also states in its declaration policy
that the child is one of the most important assets of the nation. Every effort should be exerted
to promote his welfare and enhance his opportunities for a useful and happy life. It further
identifies that the child is not a mere creature of the State. Hence, his individual traits and
aptitudes should be cultivated to the utmost insofar as they do not conflict with the general
welfare.3
Later legislative acts such as the Family Code, Republic Act 7610 (Special Protection of
Children against Abuse, Exploitation and Discrimination Act), Republic Act 9231 (Special
Protection of Children against Child Abuse, Exploitation and Discrimination Act) have also made
use of the Principle. Hence it can be inferred that the legislative and executive department of
the country is consistent in adopting the best interest of the child.
The Role of the Judiciary
In view of the fertile laws invoking the best interest doctrine, one may ask if the letter of
these laws were applied and interpreted appropriately by the third branch of the government,
1

Article 3, Convention on the Rights of the Child, 2 September 1990

THE PRINCIPLE OF THE BEST INTERESTS OF THE CHILD WHAT IT MEANS AND WHAT IT DEMANDS FROM ADULTS,
Thomas Hammarberg, Warsaw, 30 May, 2008
3
Presidential Decree No. 603, 10 December 1974
2

the Judiciary. It is the Judiciarys duty under the law to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Simply put, in child related disputes or controversies the courts duty is to decide in
favor of the best interest of the child, by looking into the facts and applicable law for each case
presented before it. The Supreme Court has ruled on issues related to the best interest of the
child on the subject of criminal law and civil law. This paper limits its discussion on the decision
of the court on Child Custody and Adoption.
Review of Cases
In cases correlating the best interest principle to child custody the standard applied by
the court is the Family Code, particularly the following articles:
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.
Article 311. The father and mother jointly exercise parental authority over their legitimate
children who are not emancipated. In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.
Children are obliged to obey their parents so long as they are under parental power, and to
observe respect and reverence toward them always.
Recognized natural and adopted children who are under the age of majority are under the
parental authority of the father or mother recognizing or adopting them, and are under the same
obligation stated in the preceding paragraph.
Natural children by legal fiction are under the joint authority of the father and mother, as
provided in the first paragraph of this article. (154a)
Article 354. Grandparents and in their default the oldest brother or sister shall exercise parental
authority in case of death or absence of the child's parents. If the parents are living, or if the child
is under guardianship, the grandparents may give advice and counsel to the child, to the parents
or to the guardian.

Article 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.
Article 288. Minor children mentioned in the preceding article are under the parental authority
of the mother. (for Illegitimate Children)

Referring to Articles 213 and 363 in custody cases the court in applying the law gives
bias in favor of the mother in case the custody of a child below seven (7) years of age. In the
case of Gualberto v. Gualberto4 decided by the Supreme Court in 2005, quoting the deliberation
of the code commission explained the reason for such rules:
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. 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)

In the same case, the court gave emphasis on the mandatory character of the rule which
can only be negated by compelling evidence of the mothers unfitness. A mother may be
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.5
The court later on rewarded custody to the mother despite allegations that she is
involved in a same sex relationship. It justified that such allegations were not proven nor was
enough to remove from the mother the right of custody since it was also stated by the trial
court that such reason was not compelling enough to remove custody from the mother after the
judge which had earlier decided custody in favor of the mother had the opportunity to talk with
the parties including the child and concluded that such allegation of homosexuality has no
adverse effect upon the child.
In case of the custody of illegitimate children, the case of Briones v. Miguel6 decided on
October 2004, also adhered to the family code and held that an illegitimate child is under the
sole parental authority of the mother. In the exercise of that authority, she is entitled to keep
4

G.R. No. 154994 and G.R. No. 156254, June 28, 2005
Ibid.
6
G.R. No. 156343, October 18, 2004
5

the child in her company. The Court will not deprive her of custody, absent any imperative cause
showing her unfitness to exercise such authority and care.7
The two above mentioned cases provide for a general rule while as an exemption is the
case of Espiritu v. CA8 which was decided in March 1995. In this case, custody was not awarded
to the mother because the Court took into account psychological and case study reports on the
child which were earlier conducted prior to the filing of the custody case. The reports revealed
that the daughter of the parties felt 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.9
In adoption cases the best interest of the child principle is also placed as the pole star in
deciding the granting of a decree for adoption. The current laws on adoption are the following:
1. Republic Act 8552 known as Domestic Adoption Act of 1998 (which also amended
Articles 183 to 193 of the Family Code);
2. Republic Act 8043 known as Inter-Country Adoption Act of 1995
In applying the law in adoption cases notable is the adoption of a younger brother by his
elder sister (older by 28 years) In the Matter of the Adoption of the Minor Edwin Villa y
Mendoza10, which was decided before Republic Act 8552, the court, in applying the law
decided to grant the adoption based on the best interest of the child, restating the rule in the
case of McGee vs. Republic. L-5387, April 29, 1954, 94 Phil. 820 the court in this wise provides:
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

Ibid.
G.R. No. 115640, March 15, 1995
9
Ibid.
10
G.R. No. 22523, September 29, 1967
8

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).

In another cases however, Landingin v. Republic, decided in June 200611, the court did
not solely relied upon the best interest principle but also on the statutory requirement of the
law specifically the parental consent required by law. In this case the petitioner seeks to adopt
the children of her deceased brother since the mother of the children 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 court in this case denied the adoption based on the following reasons:
Petitioner, nonetheless, argues that the written consent of the biological mother is no longer
necessary because when Amelias 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 childrens 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. 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.
Petitioners 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. 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.
Merely permitting the child to remain for a time undisturbed in the care of others is not such
abandonment. To dispense with the requirement of consent, the abandonment must be shown
to have existed at the time of adoption.

The survey of cases provided that the court have also applied the best interest principle
not mainly based on the letter of the law which embodies the principle but also on the facts and
circumstances of each case. Hence it can be observed that the principle is not exclusively
contained in statutes and the court have gone beyond the law in applying it.

11

G.R. No. 164948, June 27, 2006

The court has even provided for special rules in handling adoption through A.M. No. 026-02-SC, July 31, 2002 (Rule on Adoption) and for child custody through A.M. No. 03-04-04-SC,
April 22, 2003 (Rule on Custody of Minors and Writ of Habeas Corpus in Custody of Minors).
As a final vestige of justice, the Supreme Court has responded well to the needs for the
protection of the child and their best interest. However, it is suggested that the court must
continue to be vigilant in protecting the best interest of the child by developing a best interest
determination procedure in the lower courts to further aid the lower courts in deciding cases
and by helping the lower courts adduce further evidence to back up its decisions.
The creation of a determination procedure will serve as a tool in helping the appellate
courts have a more concrete appreciation of facts of cases under their review. This
determination procedure may be composed of reports of expert witnesses such as social
workers and psychologists.
Another way of further addressing the courts dedication to the advocate the best
interest of the child is the establishment of child friendly courts in every regional branch. There
must be courts that are physically dedicated only for child related cases so that a child who may
be testifying in a particular place would not be intimidated by the presence of adults.