1

SECOND DIVISION

G.R. No. 79955 January 27, 1989

IN THE MATTER OF THE PETITION FOR A WRIT OF
HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES, NELSON L. CERVANTES and ZENAIDA
CARREON CERVANTES, petitioners,
vs.
GINA CARREON FAJARDO and CONRADO
FAJARDO, respondents.
Yolanda F. Lim for petitioners.
Voltaire C. Campomanes for respondents.
RESOLUTION

PADILLA, J.:
This is a petition for a writ of Habeas Corpus filed with this
Court over the person of the minor Angelie Anne Cervantes. In
a resolution, dated 5 October 1987, the Court resolved to
issue the writ returnable to the Executive Judge, Regional Trial
Court of Pasig at the hearing of 12 October 1987 at 8:30 a.m.
Said Judge was directed to hear the case and submit his
report and recommendation to the Court.

On 3 December 1987, said Executive Judge, Regional Trial

Court of Pasig submitted to the Court his report and
recommendation, also dated 3 December 1987.
It appears that the minor was born on 14 February 1987 to
respondents Conrado Fajardo and Gina Carreon, who are
common-law husband and wife. Respondents offered the child
for adoption to Gina Carreon's sister and brother-in-law, the
herein petitioners Zenaida Carreon-Cervantes and Nelson
Cervantes, spouses, who took care and custody of the child
when she was barely two (2) weeks old. An Affidavit of
Consent to the adoption of the child by herein petitioners, was
also executed by respondent Gina Carreon on 29 April 1987. 1
The appropriate petition for adoption (Sp. Proc. No. 057-B)
was filed by herein petitioners over the child before the
Regional Trial Court of Rizal, Fourth Judicial District, Branch
67 which, on 20 August 1987, rendered a decision 2granting
the petition. The child was then known as Angelie Anne
Fajardo. The court ordered that the child be "freed from
parental authority of her natural parents as well as from legal
obligation and maintenance to them and that from now on
shall be, for all legal intents and purposes, known as Angelie
Anne Cervantes, a child of herein petitioners and capable of
inheriting their estate ." 3
Sometime in March or April 1987, the adoptive parents, herein
petitioners Nelson and Zenaida Cervantes, received a letter
from the respondents demanding to be paid the amount of
P150,000.00, otherwise, they would get back their child.
Petitioners refused to accede to the demand.
As a result, on 11 September 1987, while petitioners were out
at work, the respondent Gina Carreon took the child from her
"yaya" at the petitioners' residence in Angono, Rizal, on the

2
pretext that she was instructed to do so by her mother.
Respondent Gina Carreon brought the child to her house in
Paraaque. Petitioners thereupon demanded the return of the
child, but Gina Carreon refused, saying that she had no desire
to give up her child for adoption and that the affidavit of
consent to the adoption she had executed was not fully
explained to her. She sent word to the petitioners that she will,
however, return the child to the petitioners if she were paid the
amount of P150,000.00.
Felisa Tansingco, the social worker who had conducted the
case study on the adoption and submitted a report thereon to
the Regional Trial Court of Rizal in the adoption case, testified
on 27 October 1987 before the Executive Judge, Regional
Trial Court of Pasig in connection with the present petition.
She declared that she had interviewed respondent Gina
Carreon on 24 June 1987 in connection with the contemplated
adoption of the child. During the interview, said respondent
manifested to the social worker her desire to have the child
adopted by the petitioners. 4
In all cases involving the custody, care, education and property
of children, the latter's welfare is paramount. The provision that
no mother shall be separated from a child under five (5) years
of age, will not apply where the Court finds compelling reasons
to rule otherwise. 5 In all controversies regarding the custody of
minors, the foremost consideration is the moral, physical and
social welfare of the child concerned, taking into account the
resources and moral as well as social standing of the
contending parents. Never has this Court deviated from this
criterion. 6
It is undisputed that respondent Conrado Fajardo is legally
married to a woman other than respondent Gina Carreon, and
his relationship with the latter is a common-law husband and
wife relationship. His open cohabitation with co-respondent

Gina Carreon will not accord the minor that desirable

atmosphere where she can grow and develop into an upright
and moral-minded person. Besides, respondent Gina Carreon
had previously given birth to another child by another married
man with whom she lived for almost three (3) years but who
eventually left her and vanished. For a minor (like Angelie
Anne C. Cervantes) to grow up with a sister whose "father" is
not her true father, could also affect the moral outlook and
values of said minor. Upon the other hand, petitioners who are
legally married appear to be morally, physically, financially, and
socially capable of supporting the minor and giving her a future
better than what the natural mother (herein respondent Gina
Carreon), who is not only jobless but also maintains an illicit
relation with a married man, can most likely give her.
Besides, the minor has been legally adopted by petitioners
with the full knowledge and consent of respondents. A decree
of adoption has the effect, among others, of dissolving the
authority vested in natural parents over the adopted child,
except where the adopting parent is the spouse of the natural
parent of the adopted, in which case, parental authority over
the adopted shall be exercised jointly by both spouses. 7 The
adopting parents have the right to the care and custody of the
adopted child 8 and exercise parental authority and
responsibility over him. 9
ACCORDINGLY, and as recommended by the Executive
Judge, Regional Trial Court of Pasig, Hon. Eutropio Migrino,
the Petition is GRANTED. The custody and care of the minor
Angelie Anne Cervantes are hereby granted to petitioners to
whom they properly belong, and respondents are ordered (if
they still have not) to deliver said minor to the petitioners
immediately upon notice hereof This resolution is immediately
executory.
SO ORDERED.

3
Melencio-Herrera (Chairperson), Paras, Sarmiento and
Regalado, JJ., concur.

SECOND DIVISION

G.R. No. L-64982 October 23, 1984

ALEJANDRO B. HONTIVEROS, JR., petitioner,
vs.
THE INTERMEDIATE APPELLATE COURT, Third Special
Cases Division, HON. WILFREDO G. CAINGLET in his
capacity as Presiding Judge of Branch CLVIII, RTC and
BRENDA M. HERNANDO, respondents.

MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the
respondent Intermediate Appellate Court (hereinafter referred
to as the respondent Court) dated August 5, 1983, which
affirmed the order of respodent Judge Cainglet (hereinafter
referred to as the respondent Judge) dated May 30, 1983. The
dispositive portion of the respondent court's decision reads as
follows:
WHEREFORE, the writ prayed for is denied and the
petition dismissed for lack of merit. Accordingly, the
restraining order issued by this Court earlier is hereby
lifted, without pronouncement as to costs (p. 97, rec.).

The facts are as follows:

Petitioner Alejandro Hontiveros, Jr. and private respondent
Brenda M. Hernando are the father and mother of an
acknowledged natural child born on November 27, 1981 and
given the name Margaux H. Hontiveros.
For the period from November 1981 to June 1982, the child
had been under the care and custody of the mother. The
father, petitioner herein, used to take the child out during
Saturdays and return the child to private respondent's
residence on Saturday evenings (p. 29, rec.).
On June 21, 1982, Alejandro Hontiveros, Jr. passed by the
house of Brenda Hernando to take the child to their house for
a visit, with the agreement that she will be returned by nightfall
(p. 29, rec.). However, the child was never returned to the
mother.
To recover the custody of her child, private respondent filed on
August 24, 1982 a petition for habeas corpus in the then Court
of First Instance of Rizal, Metro Manila, entitled "In the Matter
of the Custody of the Minor Child Margaux H. Hontiveros,
Brenda M. Hernando, Petitioner, versus Alejandro Hontiveros,
Jr. and Alejandro Hontiveros, Sr., respondents", which petition
was docketed as Special Proceedings No. 9784 of said court
and assigned to Branch XIX thereof (p. 8, rec.).
On August 26, 1982, the petitioner filed a petition for custody
of minor Margaux H. Hontiveros with the then Court of First
Instance of Rizal, docketed as Special Proceedings No. 9788
with Branch XXIII of the said court. Private respondent filed a
motion to dismiss the petition in Special Proceedings No. 9788
on the ground of litis pendency, citing the pendency of Special
Proceedings No. 9784. The motion to dismiss was denied.
Subsequently, however, petitioner Alejandro Hontiveros, Jr.

4
abandoned the prosecution of Special Proceedings No. 9788,
for which reason the Hon. Judge Rizalina Bonifacio Vera
dismissed said petition on October 26, 1983.
On September 9, 1982, a hearing was conducted by the Hon.
Judge Santiago Raada in connection with Special
Proceedings No. 9784. The parties agreed that the minor child
Margaux shall be under the custody of the petitioner for seven
(7) days every other week (p. 171, rec.). Accordingly, Judge
Rafiada issued the following order:
As preliminarily agreed upon by petitioner and
respondent Alejandro Hontiveros, Jr., the Court hereby
orders the minor child Margaux H. Hontiveros to be put
under the custody of the petitioner, with the
understanding that respondent Alejandro Hontiveros,
Jr. will be allowed to take said minor child into his
custody every other week for a period of seven (7)
days with the obligation of taking said minor child from
the residence of petitioner every other Friday, at 9:00
A.M., and return said child on or before the next Friday
morning at 9:00 A.M. This arrangement is effective
immediately, with the condition that the custody of said
child is now immediately given to petitioner and
respondent Alejandro Hontiveros, Jr. will be allowed to
pick up said child on Friday, 17 September 1982, at
about 9:00 A. M. (P. 37, rec.).
On May 24, 1983, the petitioner filed an urgent ex
parte petition for issuance of a writ of preliminary injunction
with the Regional Trial Court of the National Capital Judicial
Regions Branch CLVIII, to which the Court the aforesaid case
was reassigned following the reorganization of the inferior
courts under BP 129 (p. 38, rec.). The object of the petition for
preliminary injunction is to prevent the private respondent from

bringing the minor child outside the country, specifically the

United States of American where she was allegedly bound for.
The petition was set for hearing on May 30, 1983. On said
date, the counsel for private respondent moved for the
withdrawal of the petition for habeas corpus on the ground that
said petition has become moot and academic upon the
production of the body of Margaux Hontiveros before Judge
Rafiada and in view of the order of September 9, 1982.
Respondent Judge Wilfredo Cainglet (presiding Judge of the
Regional Trial Court of the National Capital Judicial Region,
Branch CLVIII) granted the motion for the withdrawal of the
petition for habeas corpus. Since the petition for the issuance
of a writ of preliminary injunction is but an ancillary action, the
same was denied by the respondent Judge in his order dated
May 30, 1983. Said order states:
xxx xxx xxx
As preliminarily agreed upon by petitioner and
respondent Alejandro Hontiveros, Jr., the Court hereby
orders the minor child Margaux H. Hontiveros to be put
under the custody of the petitioner, with the
understanding that respondents Alejandro Hontiveros,
Jr. will be allowed to take said minor child into his
custody every other week for a period of seven (7)
days with the obligation of taking said minor child from
the residence of petitioner every other Friday, at 9:00
A.M., and return said child on or before the next Friday
morning at 9:00 A.M. This arrangement is effective
immediately, with the condition that the custody of said
child is now immediately given to petitioner and
respondent Alejandro Hontiveros, Jr. will be allowed to
pick up said child on Friday, 17 September 1982, at
about 9:00 A.M.

5
SO ORDERED.
When this petition was called for hearing today,
petitioner's counsel, Atty. Wilfredo Chato moved for the
withdrawal this petition on the ground that the same
has now become moot and academic in view of the
Order of this Court aforecited, to which motion for
withdrawal residents' counsel, Atty. Yolanda Q.
Javellana interposed her objection. The said counsel
for the respondents in open Court today, admitted that
the respondents have not filed a counterclaim anent
the herein petition and further admitted that there is a
present case involving the same parties and same
subject matter filed with the Pasig Court of First
Instance (now Regional Trial Court) and pending before
Branch 162, presided by the Executive Judge, the Hon.
Rizalina Bonifacio Vera since August 26, 1982.
The Court believes that the matter of
withdrawing a case is a prerogative of plaintiff
or petitioner and ordinarily could not be validly
objected to by the defendant or respondent as
in the present case.
IN VIEW OF THE FOREGOING, the Court,
finding the petitioner's motion to withdraw the
herein petition to be justified grants the same
and hereby orders the WITHDRAWAL of the
present petition for Habeas Corpus, subject to
the mandate of this Court in its Order dated
September 9, 1982, predicated upon the
agreement of the herein petitioner and
respondents.
Anent the respondents' motion/petition for the
issuance of a Writ of preliminary injunction

praying for the immediate issuance of a

restraining Order against the herein petitioner,
the same being merely ancillar action and now
moot and academic there being no principal or
main action or petition upon which respondents'
motion/petition may be predicated upon for the
issuance of the said restraining Order, upon
motion by petitioner's counsel with objection of
respondents' counsel the same is hereby
DENIED for lack of factual and legal
justification.
xxx xxx xxx
(pp. 48-49, rec.,emphasis supplied).
Petitioner moved for reconsideration which was likewise
denied for lack of factual and legal justification (p. 50, rec.)
On June 3, 1983, the petitioner filed a petition for certiorari
with application for preliminary injunction with the Intermediate
Appellate Court questioning the order of respondent Judge
dated May 30, 1983 and the denial of the motion for
reconsideration.
The respondent Court dismissed the petition for lack of merit in
its decision dated August 5, 1983. The petitioner moved for
reconsideration of the adverse ruling but the same was
affirmed by respondent Court in its resolution dated August 17,
1983.
Hence, this petition.
The following issues are presented:

6
1. Whether or not the order of respondent Judge dated May
30,1983 was issued with grave abuse of discretion, and
2. Whether or not petitioner is entitled to the custody of his
minor child Margaux H. Hontiveros.

I
The records reveal that the original action instituted by private
respondent in the then Court of First Instance was a petition
for a writ of habeas corpus to recover custody of her
acknowledged natural child Margaux without depriving the
father of his visitorial rights. The petition was filed against the
father who allegedly took the child from her mother's home
and kept her indefinitely without the mother's consent.
At the hearing conducted on September 9, 1982, the minor
child was "produced before the Court and a settlement was
reached upon agreement of the parties. Thus, the order of
Judge Raada was issued. Even if the order was termed
"preliminary ", WE take note of the fact that the private
respondent's prayer in her pleading had been satisfied for her
evident purpose in filing the petition for habeas corpus was to
get back the custody of her child.
Because of such settlement and considering that as noted in
the questioned order of May 30, 1983, the petitioner's counsel
admitted that there was a pending case (Special Proceedings
No. 9788) involving the same parties and same subject matter
filed with another branch of the same court and the petitioner
herein did not file a counterclaim, the respondent Judge
allowed the withdrawal of the case for habeas corpus pending
before him (pp. 48-49, rec.).

Section 2, Rule 17 of the Revised Rules of Court provides for

the dismissal of an action by order of the court at plaintiff's
instance (private respondent herein) upon such terms and
conditions as the court deems proper. WE agree with the
respondent Court that considering the circumstances obtaining
in the case at bar, as earlier noted, and considering further that
no real injury would result if the urgent ex parte petition could
not be acted upon since it could be threshed out in the
coordinate branch of the Pasig Regional Trial Court, the
dismissed of the petition forhabeas corpus is warranted. In the
case of Duque vs. Vinarao (63 SCRA 206), WE held that a
petition for habeas corpus can be dismissed upon voluntary
withdrawal of the petitioner and certification of the Judge
Advocate General.
WE agree with the respondent Judge that the petition
for habeas corpus has been rendered moot and academic with
the issuance of the order dated September 9, 1982, which was
predicated upon the agreement of the parties. In Pestrano vs.
Corvista (81 Phil. 53), WE held that where the subject person
had already been released from the custody complained of,
the petition for habeas corpus then still pending was
considered already moot and academic and should be
dismissed. In the case at bar, the minor child Margaux H.
Hontiveros was in fact produced in court. By virtue of the order
of Judge Ranada, she was released to the custody of her
mother with the father having the right to take her in his
custody every other week.
WE believe that the respondent Judge merely exercised his
sound discretion in allowing the withdrawal of the case in his
branch. "Grave abuse of discretion" means such capricious
and arbitrary exercise of judgment as is equivalent, in the eyes
of the law, to lack of jurisdiction (Vda. de Bacaling vs. Laguda
54 SCRA 243). In the case at bar, there was no abuse of

7
discretion by the respondent Judge. He acted within the ambit
of judicial discretion allotted to Judges of inferior courts, to wit:
The court may, subject to the requirement of due
process, give all such directions and orders as it may
deem necessary or expedient in the determination of
the dispute before it. It may refrain from hearing the
dispute or part thereof, or dismiss any matter or part of
any matter, where further proceedings are not
necessary or desirable. Certainly, it may also defer the
hearing of any motion or hear one motion in preference
to others, when its judgment such is necessary ... The
discretion granted by law is not interfered with unless it
is gravely abused (Maritime Company of the
Philippines, et al. vs. Paredes, et al., 19 SCRA 569,
580).
Petitioner is of the theory that he was deprived of due process
because the respondent Judge dismissed his urgentex
parte petition for preliminary injunction without hearing.
WE cannot sustain the stand of the petitioner.
It should be borne in mind that petitioner Med a petition for
custody of minor Margaux H. Hontiveros with the then Court of
First Instance of Rizal docketed as Special Proceedings No.
9788. The respondent Judge knew of the existence of Special
Proceedings No. 9788 because this fact was admitted by the
counsel of the petitioner himself. All that the petitioner must do
then is to file the petition for preliminary injunction in Branch
XXIII of the then Court of First Instance of Rizal where Special
Proceedings No. 9788 is assigned. The issue as to whether he
can be granted a preliminary injunction could have properly
been ventilated below. Unfortunately, petitioner chose to
appeal by way of certiorari, a remedy which WE cannot grant

because the respondent Judge acted within the parameters of

judicial discretion.
What is more, petitioner himself did not pursue his action for
custody of the minor Margaux H. Hontiveros. Worse, he
abandoned the case and Special Proceedings No. 9788 was
dismissed by Judge Vera on October 26, 1983 for lack of
interest on the part of the petitioner to prosecute (p. 208, rec.).
If at all petitioner can only blame himself if he feels that he was
deprived of due process.
II
The second issue is whether or not petitioner is entitled to the
custody of the minor child Margaux H. Hontiveros. Once more,
WE are asked to arbitrate between the rights and duties of
parents and children.
Article 363 of the Civil Code provides:
In all questions on the care, custody, education and
property of children, the latter's welfare shall be
paramount. No matter shall be separated from her
child under seven years of age, unless the court finds
compelling reasons for such measure.
The Code Commission observed that the rule in Article 363 of
the Civil Code is necessary "in order to avoid many a tragedy
when 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 (Report of the Code Commission, p.
12).
Finding the above rationale beyond question, Presidential
Decree No. 603 (Child and Youth Welfare Code) provides the
following:

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Article 17 ...
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 (P.D. 603, dated December
10, 1974, 70 O.G. 10774).
While the petitioner would have US believe in his reply that the
private respondent is unfit to take care of his child, it is too late
in the day to do so because under Rule 45 of the Rules of
Court, only questions of law may be raised in this Tribunal
What the petitioner should have done is to bring out the
questions of fact in Special Proceedings Nos. 9788. It is just
too bad that the case for custody was dismissed for lack of
interest on the part of the petitioner.
Clearly, the private respondent has a clear legal right under
Article 17 of P.D. 603 to the custody of her minor child, there
being no compelling reason to the contrary.
WHEREFORE, THE PETITION IS HEREBY DENIED. WITH
COSTS AGAINST PETITIONER.
SO ORDERED.1wph1.t
Aquino, Guerrero, Abad Santos and Cuevas, JJ., concur.
Concepcion, Jr. and Escolin, JJ., took no part.

SECOND DIVISION

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. Thus, according to the affidavit of petitioner
attached to his supplement to petition, submitted in
compliance with the directive of this Court during the hearing
of this case, he affirms that:

G.R. No. L-52242 November 17, 1980

xxx xxx xxx

MIGUEL R. UNSON III, petitioner,

vs.
HON. PEDRO C. NAVARRO AND EDITA N.
ARANETA, respondents.

(8) That when Maria Teresa started pre-school in 1976

at the Early Learning Center in San Lorenzo, very near
petitioner's residence, and later, when she started
school at Assumption College, Maria Teresa would stay
with petitioner during school days and spend weekends
with her mother, but there were times when her mother
would not even bother to pick her up during non-school
days;

BARREDO, J.:
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 1 and out of that marriage the child in question, Teresa,

(9) That during the early part of 1978 petitioner

personally acquired knowledge that his wife Edita
Araneta has been living with her brother-in-law Agustin
F. Reyes, in an apartment at C. Palma St., Makati,
Metro Mla. and so petitioner tightened his custody over
his daughter, especially after:
a. he found out that Agustin F. Reyes was
confined at the Makati Medical Center from
October 13 up to December 3, 1977 for "Manic

10
Depressive" disorder, under the care of Dr.
Baltazar Reyes;

the upbringing and training petitioner, as her father is

committed to;

b. he found out that his wife Edita Araneta

delivered a child fathered by Agustin F. Reyes
on September 24, 1978, (Please see Birth
Certificate attached hereto as Annex "A-1");

(13) That petitioner is executing this affidavit for all

legal purposes. (Pp. 81-82 of Record)

c. he found out that Agustin F. Reyes had been

confined again for the same ailment at the
Makati Medical Center from June 27 up to
August 29, 1978 under the care of the same
doctor .
(10) That on May 21, 1980 Edita Araneta delivered
another child fathered by Agustin F. Reyes. (Please see
Birth Certificate attached hereto as Annex "A-2");
(11) That aside from the foregoing circumstances, the
following militate against custody of Maria Teresa in
favor of Edita Araneta:
a. Agustin F. Reyes is the child's
godfather/baptismal sponsor;
b. Agustin F. Reyes and Edita Araneta have left
the Roman Catholic Church and have
embraced a protestant sect (Please see Annex
"A-2" hereof, which lists the occupation of
Agustin F. Reyes as a seminarian);
(12) That Maria Teresa is almost nine (9) years old,
born and reared under the Roman Catholic faith,
impressionable, and should not be exposed to an
environment alien to the Catholic way of life, which is

Upon the other hand, private respondent affirms in her affidavit

Annex "A" aforementioned that:
xxx xxx xxx
6. Since the birth of Maria Teresa, she has always lived
with affiant, her mother, who has reared and brought up
the child to the best of her ability. Affiant has not in any
way spoken ill of nor turned the child against her father,
herein petitioner;
7. In fact, it was affiant who was always insistent that
petitioner have custody of Maria Teresa every week
end and half of summer and Christmas vacation so that
the child could establish a healthy and viable
relationship with her father, herein petitioner;
8. This was especially so when affiant noticed that
petitioner's parents showed more interest in the child
than petitioner; since it was petitioner's parents who
would more often pick up Maria Teresa and bring her
back to and from affiant's home;
9. This fact was even noticed by the child; thus affiant
immediately requested petitioner to spend more time
with Maria Teresa;
10. From 1972 to 1978, affiant had always exercised
full custody of Maria Teresa. It was affiant who
voluntarily gave custody of the child to petitioner on

11
weekends and half of the summer and Christmas
vacations. In view of this amicable arrangement, no
specific terms were agreed and stipulated upon by
affiant and petitioner regarding custody of the child in
their petition for separation of property before the lower
court;
11. From 1972 to September, 1979, affiant and
petitioner have always had a cordial and amicable
relationship. Even from 1973 when affiant started living
with her brother-in-law, Agustin F. Reyes at San
Lorenzo, Makati, affiant and petitioner retained a
cordial relationship. Petitioner, since 1973, always
knew about affiant's relationship with Agustin F. Reyes.
In fact, petitioner would visit Maria Teresa at affiant's
home. Petitioner was always welcome to pick up Maria
Teresa at any time.
12. When petitioner left for Australia in 1974 for a
period of one year, petitioner left Maria Teresa to stay
with affiant at San Lorenzo. During this time, Maria
Teresa was always allowed to visit with and to be
picked up at any time by petitioner's parents;
13. Petitioner, his family, affiants family (Mr. and Mrs.
Teodoro Araneta), affiant's relatives and friends, since
1973, have long known of and accepted the
circumstances involving private respondent and
Agustin F. Reyes;
14. Affiant admits that her present circumstances at
first impression might seem socially if not morally
unacceptable; but in reality this is not so. Maria Teresa
has been reared and brought up in an atmosphere of
Christian love, affection and honesty to the import of
the situation. Further, the quality and capacity of affiant

of being a good mother has always remained; (Pars. 6

to 14 of Annex "A" of Record)
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 wellbeing 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
We have mentioned above. We deem it a grave abuse of
discretion on the part of respondent judge to have acted

12
precipitably in issuing his order of December 28, 1979 here in
question.
As to the issue of jurisdiction, that is, whether or not, after the
decision on separation of properties had become final, the
matter of the custody of the child should be the subject of a
separate proceeding under Rule 99. We are inclined to agree
with respondents that, considering that in the decision on the
separation of properties mention is made of support for the
child, to avoid multiplicity of proceedings, and since under
Sec- tion 6 of Rule 99, the matter of the custody of children of
separated spouses may be brought before the Court of First
Instance by petition or as an incident to any other proceeding,
the respondent court had jurisdiction to decide the question of
custody here. And as regards the petitioner's claim of denial of
hearing and due process before the issuance by respondent
judge of his order of December 28, 1979, We find thatpetitioner was given sufficient time and opportunity to be
heard, as, in fact, he filed his written opposition. With the facts
in this case practically uncontroverted, We do not see the need
for the calling of witnesses and the hearing of testimony in
open court.
WHEREFORE, the order of respondent judge is hereby set
aside, the restraining order heretofore issued is made
permanent and the parties are ordered to submit to this Court

within fifteen (15) days from notice hereof their own agreement
as to the visitorial rights of private respondent, otherwise, the
Court will take it upon itself to fix the terms and conditions
thereof. No costs.
Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ.,
concur

Footnotes
1 In her affidavit attached as Annex "A" of
comment on supplement to petition, private
respondent states that there is a "Roman
Catholic Church annulment of the marriage"
evidenced by Annex "A" of said decision
rendered by Matrimonial Tribunal of the Diocese
of Bacolod on April 4, 1976, on the legal effect
of which, for purposes of this case, the Court
prefers not to make any pronouncement as
anyway, private respondent is not actually
relying thereon.