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Introduction
The best interests test is a moral imperative and social necessity. 1 Philippines
having been a signatory to the Convention on the Rights of the Child adheres that in 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.2
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.3
Courts are mandated to take into account all relevant circumstances that would
have bearing on the childrens 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. 4 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 childrens
emotional and educational needs.5

1 Schepard, 2010, Association Of Family And Conciliation Courts, Pg.5


2 Article 31 Of The Convention On The Rights Of The Child (Crc)
3 Bondagiy V. Bondagiy, Supra
4David V. Ca, 320 Phil. 138, November 16, 1995
5 Gualberto Vs Rafaelito : 154994 : June 28, 2005, Retrieved In
Http://Sc.Judiciary.Gov.Ph/Jurisprudence/2005/Jun2005/154994.Htm

Best interests broadly describes the well-being of a child. Such well-being is


determined by a variety of individual circumstances and its interpretation and
application must conform to the Convention on the Rights of the Child (CRC) and other
international legal norms.6
On Child custody the general rule
The paramount criterion in custody disputes is the welfare and well-being of the
childthe best interest of the child. Courts, in arriving at their decision as to whom the
custody of the minor should be given, must take into account the respective resources
and social and moral situations of the contending parents. 7 Nevertheless, this primordial
rule can override the rights of one or both parents over their children.
The general rule is that a child under seven years of age shall not be separated
from his mother, which is based on the basic need of a child for his mothers loving
care.8 Article 213 of the Family Code provides that no child under seven years of age
shall be separated from the mother, unless the court finds compelling reasons to order
otherwise. Such maternal preference is evident in Philippine jurisprudence, exceptions
to the rule may be invoked by the father but he who alleges has the burden of proof to
show that the mother is unfit to take care of the child.9
This rule is not absolute. According to Pamoas (2007)10, even a mother may be
deprived of the custody of her child who is below seven years of age for compelling
reasons.
6 Article 4 Of The Convention On The Rights Of The Child (Crc)
7 Bondagiy V. Bondagiy, Supra; David V. Ca, 320 Phil. 138, November 16, 1995; Espiritu V. Ca;
Supra; Unson V. Navarro, Supra; Cervantes V. Fajardo, 169 Scra 575, January 27, 1989
8 Albano, 2012, Civil Law Reviewer, Pg 45
9 Espiritu V. Ca, Supra; Cervantes V. Fajardo, Supra; Unson Iii V. Navarro, Supra; Cortes V.
Castillo, 41 Phil. 466, March 18, 1921
10 Pamoas, 2007, Http://Jlp-Law.Com/Blog/Basic-Issues-In-Child-Custody/

Instances of unsuitability are neglect, abandonment, unemployment and


immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity,
and affliction with a communicable illness. Negligent and careless failure to perform the
duties of parenthood is a significant element of abandonment, regardless of actual
intention.11
Child custody has become every separated parents battle. It seems that letting
the child choose is one dramatic event that vindicates one parent who may feel that the
other parent deserves to be left behind by everyone, including the children.
Considerations by the Court
Section 4 of the Supreme Court Rule on Provisional Orders

12

states that in

determining the right party or person to whom the custody of the child of the parties
may be awarded pending the petition, the court shall consider the best interests of the
child and shall give paramount consideration to the material and moral welfare of the
child.
The court may likewise consider the following factors:
(a) the agreement of the parties;
(b) the desire and ability of each parent to foster an open and loving relationship
between the child and the other parent;
(c) the childs health, safety, and welfare;
(d) any history of child or spousal abuse by the person seeking custody or who
has had any filial relationship with the child, including anyone courting the parent;
(e) the nature and frequency of contact with both parents;
11 Albano, 2012, P. 45-47
12 Section 4, Rule On Provisional Orders A.M. No. 02-11-12-Sc

(f) habitual use of alcohol or regulated substances;


(g) marital misconduct;
(h) the most suitable physical, emotional, spiritual, psychological and
educational environment; and
(i) the preference of the child, if over seven years of age and of sufficient
discernment, unless the parent chosen is unfit.

Order of preference in the award of custody


In keeping with Articles 214 and 216 of the Family Code, Section 6 of the
Supreme Court Rule13 states that the court may award provisional custody in the
following order of preference:
(1) to both parents jointly
(2) to either parent taking into account all relevant considerations under the foregoing
paragraph, especially the choice of the child over seven years of age, unless the parent
chosen is unfit;
(3) to the surviving grandparent, or if there are several of them, to the grandparent
chosen by the child over seven years of age and of sufficient discernment, unless the
grandparent is unfit or disqualified;
(4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit
or disqualified;

13 Sec. 6, Rule On Provisional Orders A.M. No. 02-11-12-Sc

(5) to the childs actual custodian over twenty-one years of age, unless unfit or
disqualified; or
(6) to any other person deemed by the court suitable to provide proper care and
guidance for the child.
Section 5 of the Rule states that appropriate visitation rights shall be provided to
the parent who is not awarded provisional custody unless found unfit or disqualified by
the court.14
These are just some of the factors considered by the Court.

There are many

others that can be presented to the Court depending on particular circumstances. That
is why it is crucial that fact gathering is conducted in a particular case to determine
which factors should be presented to the Court.
One situation may be different from another persons situation that is why
outcomes may differ from case to case. The Court should exhaust an appropriate
custody order that strives to give the child access to both parents, not just one parent.
The Court wants to assure that frequent and continuing contact with both
parents are maintained. Parents separation or annulment of marriage does not mean
contact with the child or children are dissolved as well. The rights and responsibilities
of child rearing even after the relationship between both parents is dissolved should still
be shared by both parents.15
Fitness of Parent
Courts after considering all the facts of a certain case will grant any order
necessary to ensure that childs interests are served. Some of the factors courts might
look into when it comes to the parents include which is the most suitable custodian
14 Sec. 5, Rule On Provisional Orders A.M. No. 02-11-12-Sc
15 See Sempio-Diy, Handboook On The Family Code Of The Philippines (1988), Pp. 296-297

based on character, temperament and stability, the childs relationship, the educational
level of each parent, child-rearing skills each possesses, an illness that may harm the
child, the better parent who can provide the best home environment, childs emotional
ties, childs special needs that can be better met by one parent over the other, with
whom has the child been living on a regular basis, the type of extended family
relationships exist, the employment status of each parent, financial status of the parties,
each parents apparent motive for seeking custody, fitness for custodydrug or alcohol
abuse, for example usually makes a parent unfit, and the ability and interest of each
parent to provide for the emotional, social, moral, material and educational needs of the
child.

16

However, these factors are not exclusive. Such factors are not given the same

weight in each case.17


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 of age. There being no sufficient proof of any
compelling reason to separate the minor from his mother, custody should remain with
her.18 (Gualberto vs. Court of Appeals, G.R. No. 156254 , 2005)
Nothing can be more traumatic than a husband and a wifes battle for custody of
their children, except probably for a child to know that his or her parents are in a bitter,
legal tug-of-war for his or her custody.
A parent seeking custody cant just look at all the factors; put a check mark in
each column where it weighs more in favor of one than the other and then total up the
scores. Judges give different weight to each factor in each case.

16 Unhcr Guidelines On Determining The Best Interests Of The Child, 2005, P. 14-15)
17 Briones V. Miguel, Gr No. 156343, October 18, 2004
18Gualberto Vs. Court Of Appeals, G.R. No. 156254 , 2005

The Supreme Court in the case of Bondagjy vs. Bondagjy (G.R. No. 140817,
2001)19 stated that the welfare of the minors is the controlling consideration on the
issue. The Court also said that the factors that determine the fitness of any parent are
the ability to see to the physical, educational, social and moral welfare of the children,
and the ability to give them a healthy environment as well as physical and financial
support taking into consideration the respective resources and social and moral
situations of the parents.20
Respondent Fouzi and Sabrina were married on February 3, 1988, at the Manila
Hotel, Ermita, Manila under Islamic rites. Four months before her marriage, Sabrina
became a Muslim by conversion. However, the conversion was not registered with the
Code of Muslim Personal Laws of the Philippines. Out of their union, they begot two
children, namely Abdulaziz and Amouaje. The children were born in Jeddah, Saudi
Arabia. At the time of their marriage, unknown to petitioner, respondent was still
married to a Saudi Arabian woman whom he later divorced.
The parties migrated and settled in Jeddah, Saudi Arabia where they lived for
more than two years. Sometime in December 1995, the children lived in the house of
Sabrina's mother. Fouzi alleged that he could not see his children until he got an order
from the court. Even with a court order, he could only see his children in school at De La
Salle-Zobel, Alabang, Muntinlupa City.
Sabrina later had the children baptized as Christians and their names changed
from Abdulaziz Bondagjy to Azziz Santiago Artadi and from Amouaje Bondagjy to
Amouage

Selina

Artadi.

Respondent

alleged

that

on

various

occasions

Sabrina was seen with different men at odd hours in Manila, and that she would wear
short skirts, sleeveless blouses, and bathing suits. Such clothing are detestable under

19 Bondagjy Vs. Bondagjy G.R. No. 140817, 2001


20 Id 19

Islamic law on customs. Fouzi claimed that Sabrina let their children sweep their
neighbor's house for a fee of P40.00 after the children come home from school.
Whenever Fouzi sees them in school, the children would be happy to see him but
they were afraid to ride in his car. Instead, they would ride the jeepney in going home
from school. Petitioner filed with the Regional Trial Court, an action for nullity of
marriage, custody and support, ordered the parties to maintain status quo until further
orders from said court. Petitioner filed another motion to dismiss on the ground of lack
of jurisdiction over the subject matter of the case since P.D. No. 1083 is applicable only
to Muslims. 21
Fouzi filed an opposition to the motion to dismiss and argued that at the
inception of the case, both parties were Muslims, Fouzi by birth and Sabrina by
conversion. The Shari'a District Court held that P.D. No. 1083 on Custody and
Guardianship does not apply to this case because the spouses were not yet divorced. The
Shari' a District Court found petitioner unworthy to care for her children, respondent
Fouzi was capable both personally and financially to look after the best interest of his
minor children.
The issue confronted in this case was whether or not a wife, a Christian
who converted to Islam before her marriage to a Muslim and converted back to
Catholicism upon their separation, still bound by the moral laws of Islam in the
determination of her fitness to be the custodian of her children.22
The Supreme Court in the case stated that the welfare of the minors is the
controlling consideration on the issue. The Court determined the fitness of each parent
as to the ability to see to the physical, educational, social and moral welfare of the
children, and the ability to give them a healthy environment as well as physical and

21 Bondagiy V. Bondagiy, Supra


22 Bondagiy V. Bondagiy, Supra

financial support taking into consideration the respective resources and social and
moral situations of the parents.
The standard in the determination of sufficiency of proof, however, is not
restricted to Muslim laws. The Family Code shall be taken into consideration in deciding
whether a non-Muslim woman is incompetent.

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What determines her capacity is the

standard laid down by the Family Code now that she is not a Muslim. Indeed, what
determines the fitness of any parent is the ability to see to the physical, educational,
social and moral welfare of the children, and the ability to give them a healthy
environment as well as physical and financial support taking into consideration the
respective resources and social and moral situations of the parents.
The record shows that petitioner is equally financially capable of providing for all
the needs of her children. The children went to school at De La Salle Zobel School,
Muntinlupa City with their tuition paid by petitioner according to the schools
certification.24
Article 211 of the Family Code25 provides that the father and mother shall jointly
exercise parental authority over the persons of their common children. Similarly, P.D.
No. 1083

26

is clear that where the parents are not divorced or legally separated, the

father and mother shall jointly exercise just and reasonable parental authority and fulfill
the irresponsibility over their legitimate children.
Either parent may lose parental authority over the child only for a valid
reason. In cases where both parties cannot have custody because of their voluntary
23 Bautista Et Al, (2013) Family Code Of The Philippines, Pg. 473-474
24 Id. 22
25 Sta. Maria, Persons And Family Relations Law Article 211, Pg. 760
26 Presidential Decree No. 1083 A Decree To Ordain And Promulgate A Code Recognizing The
System Of Filipino Muslim Laws, Codifying Muslim Personal Laws, And Providing For Its
Administration And For Other Purposes

10

separation, we take into consideration the circumstances that would lead us to believe
which parent can better take care of the children. Although we see the need for the
children to have both a mother and a father, we believe that petitioner has more
capacity and time to see to the childrens needs. Respondent is a businessman whose
work requires that he go abroad or be in different places most of the time. Under P.D.
No. 603, the custody of the minor children, absent a compelling reason to the contrary,
is given to the mother, Supreme Court ruled.
Award of custody to mother does not negate joint Parental Authority
The award of custody to the wife does not deprive the husband of parental
authority. In the case of Silva v. Court of Appeals,27 the Court said that:
Parents have the natural right, as well as the moral and legal duty, to care for
their children, see to their upbringing and safeguard their best interest and welfare.
This authority and responsibility may not be unduly denied the parents; neither may it
be renounced by them. Even when the parents are estranged and their affection for
each other is lost, the attachment and feeling for their offsprings invariably remain
unchanged. Neither the law nor the courts allow this affinity to suffer absent, of
course, any real, grave and imminent threat to the well-being of the child. 28
In summary, in cases of custody disputes, the paramount criterion is the welfare
and well-being of the child. Although the general rule is that the custody of a child below
seven years of age belongs to the mother; if there are compelling reasons, custody may
be denied and granted to another party under Article 214 of the Family Code. 29

27 [G.R. No. 114742. July 17, 1997]Carlitos E. Silva, Petitioner, Vs. Hon. Court Of Appeals And
Suzanne T. Gonzales, Respondents
28 Id 27
29 Sta Maria Pg 765, Article 214 Of The Family Code

11

Compelling reasons for a mother to lose custody areneglect, abandonment,


unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of
the child, insanity, and affliction with a communicable illness. 30
Maternal Preference justified
"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.31
It is universally recognized that the mother is the natural custodian of her
young.32 The proper application of the maternal preference rule neither denies nor
abridges the equality of rights of the father because, as previously stated, the rights of
the parents are not the principal issues in a custody case but rather the best interest of
the children. 33
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code.
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 seven years of age shall be separated from his mother,
unless the court finds compelling reasons to do so." 34

30 Tonog V. Ca, 427 Phil. 1, 7, February 7, 2002; Artadi-Bondagiy V. Bondagiy, 423 Phil. 127,
136, 138, December 7, 2001; Perez V. Ca, Supra, P. 1024; Espiritu V. Ca, Supra, P. 437; Medina
V. Makabali, 137 Phil. 329, 331, March 28, 1969; Slade Perkins V. Perkins, 57 Phil. 217, 219,
September 12, 1932
31 Dacasin V. Dacasin, G.R. No. 168785, February 5, 2010
32 Sta Maria Pg 790 Art 213
33 Cooke V.Cooke, 70 Alr 3d 255
34 Presidential Decree No. 603

12

In applying this rule, the child must be under seven years of age at the time either
parent is given the custody or at the time the decision is rendered. 35 This is also known
as the tender-age presumption.36
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
annulment 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.37
Courts often treated a fathers commission of adultery as grounds for denying
him custody of a child but, in a particular case, a mothers commission of adultery did
not necessarily preclude an award of custody to her, especially if the child in question
was young.38
In Espiritu v. Court of Appeals 39, despite the choice of the children to go to the
father and the determination of an expert psychologist and an expert social worker that
the children was better off with the father, the Court of Appeals awarded to the mother,
who was convicted of bigamy, the custody of the children who, at the time of the filing of
the case in the lower court, were below seven years of age and who saw their mother
kissing another man.

35 Espiritu V. Court Of Appeals, 59 Scad 631, 242 Scra 362


36 Pablo-Gualberto V. Gualberto V, G.R. No. 154994, June 28, 2005, 461 Scra 450)
37 (Report Of The Code Commission, P. 12)
38 The Admissibility And Relevance Of Prior Bad Acts In Child Custody Cases 1996 National
Legal Research Group, Inc.
39 Espiritu V. Court Of Appeals, 59 Scad 631, 242 Scra 362

13

Infidelity, by itself, is not sufficient to deprive a mother of her child under seven
years of age. In the words of the Court of Appeals in the case:
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. 40
Moreover, regardless of the age of the child, a mothers commission of adultery
was not a bar to custody if there was evidence that she had undergone a moral
reformation. The courts would typically infer a womans complete moral reformation
simply from her termination of an adulterous relationship. 41
The Supreme Court reversed the decision of the Court of Appeals and made a
determination that the welfare of the children was better served if they were with their
father.
Adultery of the parent during the childs formative years may likewise be
considered in questions involving the custody of children. The primary duty of any
mother is to educate her children in the basic moral principles. 42 One who does not
possess these principles can hardly be expected to teach them to others.

40 The Admissibility And Relevance Of Prior Bad Acts In Child Custody Cases 1996 National
Legal Research Group, Inc.
41 Id 40
42 Sta Maria Pg 792

14

Also, in Pablo-Gualberto v. Gualberto V43, the Supreme Court said that the mere
fact that the mother is a lesbian is not enough justification to remove the child from her
custody.
The law favors the mother if she is a fit and proper person to have custody of her
children so that they may not only receive her attention, care, supervision and kindly
advice, but also may have the advantage and benefit t of a mothers love and devotion
for which there is no substitute44.
The preference favoring the mother over the father springs from the truth, well
known by all men, that no other love is quite so tender, no other solicitude quite so deep,
and no other devotion quite so enduring as that of a mother for the child. 45 Generally,
the love, solicitude, and devotion of a mother cannot be replaced by another and is
worth more to a child of tender years than all other things combined 46.
Maternal preference is not an absolute rule. It is intended to serve only the
function as a tie-breaker in those rare instances when parental qualities are so equally
balanced between litigants that resort to the preference is necessary. 47
If older than seven years of age, a child is allowed to state his preference, but the
court is not bound by that choice. The court may exercise its discretion by disregarding
the childs preference should the parent chosen be found to be unfit, in which instance,
custody may be given to the other parent, or even to a third person. 48. Decisions on
custody of children are always open to adjustment as the circumstances may warrant.
43 Pablo-Gualberto V. Gualberto V, G.R. No. 154994, June 28, 2005, 461 Scra 450
44 Peavey V. Peavey, 85 Nev. 571, 460 P2d 110
45 Sta Maria (2012), Persons and Family Relations, Art 213, pg. 790
46 Horst V. Mclain, 466 Sw2d 187
47 In Re Kailer, 123 Kan. 230, 231, cited In Re Armentrout, 58 ALR 3d 1065
48 Sta Maria (2012), Persons and Family Relations, Art 213, pg. 791

15

Custodial Arrangements
In Dacasin v. Dacasin49, the Supreme Court ruled that a Philippine Court has no
authority to enforce a custody-agreement executed in the United States by a Filipina
woman divorced and separated from her foreigner-spouse whereby they agreed that,
though the child was below seven years of age, they will have joint custody.
Parties to such contract are free to stipulate the terms of agreement subject to the
minimum ban on stipulations contrary to law, morals, good customs, public order, or
public policy. Otherwise, the contract is denied legal existence, deemed inexistent and
void from the beginning.50
For lack of relevant stipulation in the Agreement, these and other ancillary
Philippine substantive law serve as default parameters to test the validity of the
Agreements joint child custody stipulations.
At the time the parties executed the Agreement two facts are undisputedthat
Stephanie was under seven years old and petitioner and respondent were no longer
married under the laws of the United States because of the divorce decree.
The relevant Philippine law on child custody for spouses separated in fact or in
law under the second paragraph of Article 213 of the Family Code has also been
established. The statutory awarding of sole parental custody to the mother is
mandatory, grounded on sound policy consideration, subject only to a narrow exception
not alleged to obtain here.51 Clearly then, the Agreements object to establish a postdivorce joint custody regime between respondent and petitioner over their child under
seven years old contravenes Philippine law.

49 Dacasin V. Dacasin, G.R. No. 168785, February 5, 2010


50 Sta Maria (2012), Persons and Family Relations, Art 213, pg. 790-792
51 Sta Maria (2012), Persons and Family Relations, Art 213, pg. 794

16

The Agreement is not only void ab initio for being contrary to law, it has also been
repudiated by the mother when she refused to allow joint custody by the father. The
Agreement would be valid if the spouses have not divorced or separated because the law
provides for joint parental authority when spouses live together. However, upon
separation of the spouses, the mother takes sole custody under the law if the child is
below seven years old and any agreement to the contrary is void.52
The law suspends the joint custody regime for children under seven of separated
or divorced spouses. Simply put, for a child within this age bracket, the law decides for
the separated or divorced parents how best to take care of the child and that is to give
custody to the separated mother.
Indeed, the separated parents cannot contract away the provision in the Family
Code on the maternal custody of children below seven years anymore than they can
privately agree that a mother who is unemployed, immoral, habitually drunk, drug
addict, insane or afflicted with a communicable disease will have sole custody of a child
under seven as these are reasons deemed compelling to preclude the application of the
exclusive maternal custody regime under the second paragraph of Article 213.
The imposed custodial regime under Article 213 is limited in duration, lasting
only until the childs seventh year. 53From the eighth year until the childs emancipation,
the law gives the separated parents freedom, subject to the usual contractual limitations,
to agree on custody regimes they see fit to adopt.
Custodial rights to an illegitimate child
Where the child is an illegitimate one, the law automatically provides that
custody of such is with the mother, consistent with the right of the child to use the
surname of the mother.

52 Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010


53 Sta Maria (2012), Persons and Family Relations, Art 213, pg. 796

17

Parental authority of the same belongs to the mother and this includes her right
to have the custody of her illegitimate child. She cannot therefore be deprived of the
child's custody unless she is not fit to exercise such authority and care. However, the
father has a right of access known as visitation rights to the child. This is a
constitutionally protected inherent and natural right of a father over his child. But this
visitation rights can be denied if it can be proven that the father is a negative influence
like immorality and drunkenness to his children. 54 The best interest and welfare of the
children is still the consideration.
An illegitimate child is one who is born of parents who were not legally married
to one another at the time of the childs birth, and who remain unmarried to one
another. 55
By law and jurisprudence, the mother of an illegitimate child has sole parental
authority and is entitled to keep the child in her company. This rule continues to apply
even when the father of the child acknowledges filiation and paternity, although the
court may order the father to provide support as a result of the acknowledgment, but not
custody.
In one case, Briones vs. Miguel56, the Supreme Court upheld the illegitimate
childs mothers custody even when the mother was working in Japan and eventually
brought the child out of the country to live with her there.
There is thus no question that Respondent Loreta, being the mother of and
having sole parental authority over the minor, is entitled to have custody of him. She has
the right to keep him in her company. She cannot be deprived of that right and she may
not even renounce or transfer it except in the cases authorized by law. 57

54 Sta Maria (2012), Persons and Family Relations, Art 213, pg. 794
55 Tayag v. Court of Appeals, 209 SCRA 665,
56 Briones Vs. Miguel, Gr 156343, Oct. 18, 2004

18

Merely working abroad while entrusting the child to the care of the maternal
grandparents or other immediate family member does not seem to be one of the
grounds for taking away custody from the mother. It cannot be considered as
abandonment or neglect as well.58
Travel clearance of an illegitimate child
The DSWD's amended rules involving travel clearance known as parental travel
permit is no longer needed. This means that a minor traveling abroad with either of his
or her parent or with his or her solo parent or legal guardian is exempt from the travel
clearance requirement.59
In this regard, a solo parent should present a photocopy of a solo parent
identification card issued by the Municipal Social Welfare Officer. In case of Muslim
solo parent, a Tallaq or a Fasakh certification from the Shariah court or any Muslim
barangay or religious leader should also be presented. 60
While other proofs of solo parenthood are certificate of no marriage (CENOMAR)
from the local civil registrar and death certificate or certificate of legal guardianship
issued by the court.61
Adoption
57 Articles 210, Family Code. The Law Allows A Waiver Of Parental Authority Only In Cases Of
Adoption, Guardianship And Surrender To A Childrens Home Or An Orphanage; SagalaEslao V. Court Of Appeals, 334 Phil. 286, 293, January 16, 1997
58 Espiritu v. CA, supra; Cervantes v. Fajardo, supra; Unson III v. Navarro, supra; Cortes v.
Castillo, 41 Phil. 466, March 18, 1921.
59 Special Protection of Children Against Abuse, Exploitation and Discrimination Act and the
Philippine Passport Act of 1996
60 DSWD: Secure travel clearance for minors going abroad without parents or legal guardiansApril 27,
2015

61 Special Protection of Children Against Abuse, Exploitation and Discrimination Act and the
Philippine Passport Act of 1996.

19

Adoption statutes, being humane and salutary, hold the interest and welfare of
the child to be of paramount consideration and are designed to provide homes, parental
care and education for unfortunate, needy or orphaned children and give them the
protection of society and family in the person of the adopter as well as to allow childless
couples or persons to experience the joys of parenthood and legally give them a child in
the person of the adopted for the manifestation of their natural parental instincts. Every
reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.62
In determining whether or not to set aside the decree of adoption, the best
interest rule still rests. The welfare of the child is of paramount consideration in
proceedings involving its custody and the propriety of its adoption by another and the
courts to which the application for adoption is made is charged with the duty of
protecting the child and its interests and, to bring those interest fully before it, it has
authority to make rules to accomplish that end. 63
Ordinarily, the approval of the adoption rests in the sound discretion of the court.
This discretion should be exercised in accordance with the best interests of the child, as
long as the natural rights of the parents over the child are not disregarded. In the
absence of a grave abuse, the exercise of this discretion by the approving official will not
be disturbed.
In evaluating prospective parents, there are other factors to be considered such
as, but not limited to, the following:
1) Total personality of the applicants
2) Emotional maturity
3) Quality of marital relationship
62 Malkinson V. Agrava, 54 Scra 66
63 (In the matter of the adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March
31, 2005, 454 SCRA 541

20

4) Feeling about children


5) Feeling about childlessness and readiness to adopt
6) Motivation
These factors have been formulated and used by the Child Welfare League of
America, Inc. and which can likewise be utilized in the Philippines. 64 While adoption
aims to approximate natural filiation as much as possible, it is still the best interest of
the child or the one to be adopted which is the principal consideration. Public policy,
therefore, favors adoption by a family of the same race, religion, and intellectual ability
as the child.
However, in the case of In Re Adoption of a Minor 54 ALR 2d 905 65, the court
allowed a black man to adopt his wifes illegitimate white child. The court stated that a
difference in race or religion may have relevance in adoption proceedings, but such
difference alone cannot be decisive in determining what is best for the welfare of the
child and does not permit the court to ignore other relevant considerations.
It is observed that as to child welfare agencies, no license shall be granted unless
the purpose or function of the agency is clearly defined and stated in writing. 66 Such
definition shall include the geographical area to be served, the children to be accepted
for care and the services to be provided.

67

The protection and best interests of the child

or children therein shall be the first and basic consideration in the granting, suspension
or revocation of the license. 68

64 Sta Maria (2012), Persons and Family Relations, Title VII, pg. 664
65 In Re Browns Adoption, 56 Alr 2d 820
66 Sta Maria (2012), Persons and Family Relations, Title VII, pg. 665
67 (Article 118, Pd 603)
68 (Article 119, Pd 603)

21

The rights concomitant to and conferred by the decree of adoption will be for the
best interests of the child. An adoption is always delivered with the consent of the
natural parents. It is hereby recognized that administrative processes under the
jurisdiction of the Department of Social Welfare and Development for the declaration of
a child legally available for adoption of abandoned, surrendered, or neglected children
are the most expeditious proceedings for the best interest and welfare of the child.
The representative of the Department of Social Welfare and Development should
exhaust all measures to hold that the decree of adoption issued by a court a quo would
promote the welfare of the child and the enhancement of his opportunities for a useful
and happy life.69
The natural parents are allowed to withdraw their consent to the adoption of
their natural child prior to an adoption decree.

No binding commitment by the

biological parents to an adoption plan shall be permitted before the birth of the child.
The biological parents incapacity to be parents after a six-month period, shifts them the
burden of proving that the withdrawal of their consent is for the best interest of the
child. 70
In all matters concerning the custody of the child, it must always be a rule that
the rights of the would-be custodians, whether the biological parents or the prospective
adopters, are merely secondary to the paramount or best interest of the child. 71
The irrevocability rule therefore should not be construed as to give a limitation to
the childs best interest rule. This latter rule must be considered as an implicit but real
exception to the irrevocability of the decision after the six-month period. For indeed, if,
in the event of the adoption decrees revocation, the biological parents parental
69 (Daoang V. Municipal Judge Of San Nicolas, Ilocos Norte, 159 Scra 366, Citing In Re
Adoption Of Resaba, 95 Phil. 244; Santos V. Aranzanso, 123 Phil. 160)
70 Domestic Adoption Act Of 1998, (Section 4[A], Article Ii
71 In Re Browns Adoption, 56 Alr 2d 820

22

authority may be restored, with more reason should the restoration of parental
authority in favor of the biological parents be allowed even after the lapse of the sixmonth period after the initial decision to relinquish parental authority if there are
indeed compelling, concrete and convincing evidences to show that the restoration will
be for the paramount interest of the child.72
Guardianship
A strong basis for a finding of the parents abandonment of his or her child is
found in the case where the parent has left the child permanently or indefinitely in the
care of others, given it to another, or surrendered it entirely.
Custody may even be awarded to persons who are strangers to the family if such
award would best serve the paramount interest of the child.73
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 childrens 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.74

72 Domestic Adoption Act Of 1998, (Section 20, Article VI)


73 Balatbat V. Balatbat, 98 Phil. 998
74 Articles 210, Family Code. The law allows a waiver of parental authority only in cases of
adoption, guardianship and surrender to a childrens home or an orphanage; Sagala-Eslao v.
Court of Appeals, 334 Phil. 286, 293, January 16, 1997

23

Sec 10 of the Rules of Court in Child Custody cases provides that custody to any
other person deemed by the court suitable to provide proper care and guidance for the
child.75
The custodian temporarily designated by the court shall give the court and the parents
five days notice of any plan to change the residence of the child or take him out of his
residence for more than three days provided it does not prejudice the visitation rights of
the parents.76
Article 222 of the Family Code77 provides that the courts may appoint a guardian
of the childs property, or a guardian ad litem when the best interests of the child so
require.
A guardianship is a trust relation of the most sacred character, in which one
person, called a guardian, acts for another, called the ward, which the law regards as
incapable of managing his own affairs.
Guardians ad litem are considered officers of the court in a limited sense, and the
office of such guardian is to represent the interest or the incompetent or the minor. 78
Appointment of a guardian ad litem is addressed to the sound discretion of the
court and designed to assist the court in the determination of the best interest of the
child. In selecting a guardian for a minor, an appointment which probably will keep
together the family, or those remaining, will, as a general rule, be preferred to one which
will bring about their separation. 79

75 Sec 10 Of The Rules Of Court In Child Custody


76 Atty. Gerry T. Galacio At Monday, August 02, 2010
77 Sta Maria Persons And Family Relations Law, Art 222, Pg 822
78 (Rivero V. Court Of Appeals, G.R. No. 141273, May 17, 2005, 458 Scra 714)
79 Sta Maria Persons And Family Relations Law, Art 222, Pg 822

24

The court may also consider the financial situation, the business acumen, the
physical condition, the morals, character, and conduct, and the present and past history
of a prospective appointee, as well as the probability of his being able to exercise the
powers and duties of guardian for the full period during which guardianship will be
necessary.

80

A court cannot appoint a guardian who is not personally subject to its

jurisdiction. 81
Support
The best interest rule does not necessarily mean financial interest or the parent
that is able to provide a more luxurious standard of living; rather it encompasses the
health, safety, and welfare of the child. In a contested court proceeding, many factors
are presented as evidence to the Court to persuade the Court which parent would be the
better parent to provide a nurturing, safe and stable environment for the child or
children. Some factors include quality time with the child from each parent, discipline,
safety precautions, feelings and desires of each parent, history of parent or child abuse,
stability and continuity of environment and sometimes, the childs own wishes.
In David v. Court of Appeals, 82 where it was shown that the father was well-off
compared to the mother but the latter can nevertheless decently support her children,
the Supreme Court still awarded the children to the mother by stating: Nor is the fact
that private respondent is well-off a reason for depriving petitioner of the custody of her
children, especially that she has been able to rear and support them on her own since
they were born.
Petitioner is a market vendor earning from P2,000 to P3,000 when the RTC
decision was rendered. She augments her income by working as secretary at the
Computer System Specialist, Inc. earning a monthly income of P4,500.00. She has an
80 (39 Am. Jur. 35).
81 (Vancil V. Belmes, G.R. No. 132223, June19, 2001)
82 David V. Court Of Appeals, 65 Scad 508, 250 Scra 82

25

arrangement with her employer so that she can personally attend to her children. She
works up to 8:00 oclock in the evening to make up for time lost during the day. That she
receives help from her parents and sister for the support of the three children is not a
point against her.
Cooperation, compassion, love and concern for every member of the family are
characteristics of the close family ties that bind the Filipino family and have make it
what it is. Daisie and her children may not be enjoying a life of affluence that private
respondent promises if the child lives with him. It is enough however, that petitioner is
earning a decent living and is able to support her children according to her means. 83
Conclusion
Best interests determination is an educated prediction about how parents and
children will evolve and not just simply a reconstruction and legal interpretation of past
events. Unfortunately, there is scant evidence that anyone including judges and
psychologists can be as conclusive as to its metes and bounds. While available social
science data creates a general framework about what parenting arrangements would be
good for children after separation and divorce especially considering the need of the
stsability of relationships in a time of uncertainty and stress one study or research
cannot always create an accurate decision for every particular child.
Philippine laws may have come to the tender years doctrine as a general rule
because traditionally, it is the mother who stays at home and is the primary caretaker of
the children. But over the years, the roles of father and mother have evolved so much
that oftentimes there is a reversal of roles, where the mother may be the one bringing
home the bacon while the father keeps house. While that may not be true for some, what
is often the case is that women are more visible in the workfront these days that it may
not be fair to say that the working mother is the primary caretaker.

83 Id At 71

26

Over the years, we have seen mothers deprived of their young children and more
and more fathers given equal parenting time. But with older children, we often hear that
perhaps the child has to make that choice who to live with. When all the dust has settled
and the wounds of a separation have turned into scars, a very thoughtful parent will try
as much not to make a child choose between the two parents.
There is no real victory after that crucial choice is made by the child, which would
very well remind us that children have a right to be with both parents. They are too
young to make difficult life changing decisions such as parental choices. Some things are
best left to the parents who are presumed to know whats best for the children. Parents
should themselves know the best interests for their own kin.
The paramount criterion in the best interest of the child issues is the welfare and
well-being of the child. Courts must always take into account the respective resources
and social and moral situations of the contending parents and third persons without
overriding the rights of one or both parents over their children, more especially to the
rights of children.

27

References:

Albano, 2012, Civil Law Reviewer, Pg 45-49


Articles 210, Family Code. The Law Allows A Waiver Of Parental Authority Only In Cases
Of Adoption, Guardianship And Surrender To A Childrens Home Or An Orphanage;
Sagala-Eslao V. Court Of Appeals, 334 Phil. 286, 293, January 16, 1997
Atty. Gerry T. Galacio THINGS YOU SHOULD KNOW ABOUT CUSTODY, August 02,
2010
Balatbat V. Balatbat, 98 Phil. 998
Bautista Et Al, (2013) Family Code Of The Philippines, Pg. 473-474
Bondagiy V. Bondagiy, Supra; David V. Ca, 320 Phil. 138, November 16, 1995; Espiritu V.
Ca; Supra; Unson V. Navarro, Supra; Cervantes V. Fajardo, 169 Scra 575, January 27,
1989
Bondagjy Vs. Bondagjy G.R. No. 140817, 2001
Briones Vs. Miguel, Gr 156343, Oct. 18, 2004
Carlitos E. Silva, Petitioner, Vs. Hon. Court Of Appeals And Suzanne T. Gonzales,
Respondents G.R. No. 114742. July 17, 1997
Convention on Childrens Humans Rights, 1989
Cooke V.Cooke, 70 Alr 3d 255
Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010
Daoang V. Municipal Judge Of San Nicolas, Ilocos Norte, 159 Scra 366, Citing In Re
Adoption Of Resaba, 95 Phil. 244; Santos V. Aranzanso, 123 Phil. 160)
David V. Court Of Appeals, 65 Scad 508, 250 Scra 82
Domestic Adoption Act Of 1998, (Section 20, Article VI)
Domestic Adoption Act Of 1998, (Section 4[A], Article Ii
DSWD: Secure travel clearance for minors going abroad without parents or legal
guardians
Espiritu V. Ca, Supra; Cervantes V. Fajardo, Supra; Unson Iii V. Navarro, Supra; Cortes
V. Castillo, 41 Phil. 466, March 18, 1921
Espiritu V. Court Of Appeals, 59 Scad 631, 242 Scra 362
Gualberto Vs Rafaelito : 154994 : June 28, 2005, Retrieved In
Http://Sc.Judiciary.Gov.Ph/Jurisprudence/2005/Jun2005/154994.Htm
Gualberto Vs. Court Of Appeals, G.R. No. 156254 , 2005
Horst V. Mclain, 466 Sw2d 187
In Re Browns Adoption, 56 Alr 2d 820
In Re Kailer, 123 Kan. 230, 231, cited In Re Armentrout, 58 ALR 3d 1065
In the matter of the adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March
31, 2005, 454 SCRA 541
Malkinson V. Agrava, 54 Scra 66
Pablo-Gualberto V. Gualberto V, G.R. No. 154994, June 28, 2005, 461 Scra 450
Pamoas, 2007, Http://Jlp-Law.Com/Blog/Basic-Issues-In-Child-Custody/
Peavey V. Peavey, 85 Nev. 571, 460 P2d 110

28

Presidential Decree No. 1083 A Decree To Ordain And Promulgate A Code Recognizing
The System Of Filipino Muslim Laws, Codifying Muslim Personal Laws, And Providing
For Its Administration And For Other Purposes
Presidential Decree No. 603
Report Of The Code Commission, P. 12)
Rivero V. Court Of Appeals, G.R. No. 141273, May 17, 2005, 458 Scra 714)
Schepard, 2010, Association Of Family And Conciliation Courts, Pg.5
Sec 10 Of The Rules Of Court In Child Custody
Sec. 5, Rule On Provisional Orders A.M. No. 02-11-12-Sc
Sec. 6, Rule On Provisional Orders A.M. No. 02-11-12-Sc
Section 4, Rule On Provisional Orders A.M. No. 02-11-12-Sc
Sempio-Diy, Handboook On The Family Code Of The Philippines (1988), Pp. 296-297
Special Protection of Children Against Abuse, Exploitation and Discrimination Act and
the Philippine Passport Act of 1996
Sta Maria (2012), Persons and Family Relations, Art 213, pg. 790-796, Title VII, pg. 664,
Pg 822, Article 214 Of The Family Code
Tayag v. Court of Appeals, 209 SCRA 665,
The Admissibility And Relevance Of Prior Bad Acts In Child Custody Cases 1996
National Legal Research Group, Inc.
The Admissibility And Relevance Of Prior Bad Acts In Child Custody Cases 1996
National Legal Research Group, Inc.
Tonog V. Ca, 427 Phil. 1, 7, February 7, 2002; Artadi-Bondagiy V. Bondagiy, 423 Phil.
127, 136, 138, December 7, 2001; Perez V. Ca, Supra, P. 1024; Espiritu V. Ca, Supra, P.
437; Medina V. Makabali, 137 Phil. 329, 331, March 28, 1969; Slade Perkins V. Perkins,
57 Phil. 217, 219, September 12, 1932
UNHCR Guidelines On Determining The Best Interests Of The Child, 2005, P. 14-15)
Vancil V. Belmes, G.R. No. 132223, June19, 2001