TITLE IX.

PARENTAL AUTHORITY
CASE NO. 1: BECKET vs. JUDGE OLEGARIO SARMIENTO, JR.

FACTS ISSUE RULING

Geoffrey Beckett (Complainant), an Australian Whether or not NO.

respondent Judge
national, was previously married to Eltesa Densing Beckett, a
Sarmiento is guilty of Respondent judge, in granting provisional custody
Filipina. Out of the marriage was born on June 29, 2001, Geoffrey gross ignorance of the
Beckett, Jr. (Geoffrey, Jr.). over Geoffrey, Jr.
law in issuing an Order
in favor of his mother, Eltesa, did not disregard
granting provisional
In his Complaint-Affidavit, Beckett alleged that custody in favour of the res judicata rule. The more appropriate description of the
their union was, from the start, far from ideal. In fact, according to Eltesa legal situation engendered by the March 15, 2011 Order
him, they eventually separated and, worse still, they sued each issued amidst the persistent plea of the child not to be
other. returned to his father, is that respondent judge exhibited
fidelity to jurisprudential command to accord primacy to the
In 2006, Eltesa filed a case against Beckett for welfare and interest of a minor child.
violation of Republic Act No. (RA) 7610, otherwise known as
theViolence against Women and Children Act, followed by a suit As it were, the matter of custody, to borrow
for the declaration of nullity of their marriage. from Espiritu v. Court
of Appeals, is not permanent and unalterable [and] can
Both cases ended in the sala of Judge Olegario
always be re-examined and adjusted. And as aptly observed
Sarmiento, Jr.
in a separate opinion in Dacasin v. Dacasin, a custody
agreement can never be regarded as permanent and
The couples initial legal battle ended when Judge
unbending, the simple reason being that the situation of the
Sarmiento, rendered judgment based on a compromise agreement
parents and even of the child can change, such that sticking
in which Eltesa and Beckett agreed and undertook, among others,
to the agreed arrangement would no longer be to the latters
to cause the dismissal of all pending civil and criminal cases each
best interest.
may have filed against the other. They categorically agreed too
that Beckett shall have full and permanent custody over Geoffrey,
In a very real sense, then, a judgment involving the
Jr., then five (5) years old, subject to the visitorial rights of Eltesa.
custody of a
minor child cannot be accorded the force and effect of res
In 2007, Beckett obtained a divorce from Eltesa in
judicata.
Australia. This notwithstanding, the yearly Christmas visits
continued. In the 2010 visit, Beckett consented to have Geoffrey,
Now to another point. In disputes concerning post-
Jr. stay with Eltesa even after the holidays, provided she return the
1
child on January 9, 2011. January 9 came and went but Geoffrey,
Jr. remained with Eltesa, prompting Beckett to file a petition
against Eltesa for violation of RA 7610. And because Geoffrey
remained in the meantime in the custody of Eltesa, Beckett later
applied for the issuance of a writ of habeas corpus.
For some reason, the turnover of Geoffrey, Jr. to Beckett did
not
materialize.
As his motion for reconsideration had remained unresolved
as of June 13,
2011, Beckett filed on that day an urgent motion to resolve.
Several hearings on the case were postponed because of
the belated
submission by the DSWD of the case study report requested by
respondent judge.
It is upon the foregoing that Beckett has instituted the
complaint, against
Judge Sarmiento. As argued, respondent is liable for (1) gross
ignorance of the law for granting Eltesa provisional custody over
Geoffrey Jr.; and (2) partiality by committing acts of serious
misconduct and irregularities in the performance of official duties,
such as but not limited to allowing one Helen Sy to enter his
chambers before the March 15, 2011 hearing, his habit of
conversing with Eltesa in the local dialect and for adjourning a
hearing while he was conferring with his counsel in private.
Beckett predicates his charge of dereliction and neglect of duty on
respondents alleged failure to resolve his motion for
reconsideration of the March 15, 2011 order giving provisional
custody of his child to his mother.
separation
custody over a minor, the well-settled rule is that no child
under seven (7) years of age shall be separated from the
mother, unless the court finds compelling reasons to order
otherwise. And if already over 7 years of age, the childs
choice as to which of his parents he prefers to be under
custody shall be respected, unless the parent chosen proves
to be unfit.
Finally, inPerez v. Court of Appeals, We held that in
custody cases,
the foremost consideration is always the welfare and best
interest of the child, as reflected in no less than the U.N.
Convention on the Rights of the Child which provides that
[i]n 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.
In the light of the foregoing, respondent judge cannot
be held
guilty of the charges hurled by the complainant against him
for the reason that absent a finding of strong reasons to rule
otherwise, the preference of a child over 7 years of age as to
whom he desired to live with shall be respected. Moreover,
custody, even if previously granted by a competent court in
favor of a parent, is not, to reiterate, permanent.
2
 In the Agenda Report dated March 8, 2012, the OCA
regards the
complaint meritorious insofar as the charges for gross ignorance
of the law is concerned given that respondent judge issued his
March 15, 2011 Order granting provisional custody in favor of
Eltesa despite the existence of the judicial compromise. The OCA,
thus, recommended that respondent judge be adjudged liable for
gross ignorance of the law and fined with stern warning.

Hence, this appeal.

CASE NO. 2: SALIENTES vs. ABANILLA

FACTS ISSUE RULING

Private respondent Loran S.D. Abanilla and petitioner
Marie Antonette
Abigail C. Salientes are the parents of the minor Lorenzo
Emmanuel S. Abanilla.
They lived with Marie Antonettes parents, petitioners
Orlando
B.Salientes and Rosario C. Salientes. Due to in-laws problems,
private respondent suggested to his wife that they transfer to
their own house, but Marie Antonette refused. So, he alone left the
house of the Salientes. Thereafter, he was prevented from seeing
NO.
Did the RTC and CA
granted custody in favour
to the respondent? As correctly pointed out by the CA, the assailed
January 23, 2003
Order of the trial court did not grant custody of the minor to
any of the parties but merely directed petitioners to produce
the minor in court and explain why they are restraining his
liberty. The assailed order was an interlocutory order
precedent to the trial courts full inquiry into the issue of
custody, which was still pending before it.
Under Rule 41, Section 1of the Rules of Court, an
3
his son. interlocutory

order is not appealable but the aggrieved party may file an

Later, Loran S.D. Abanilla in his personal capacity and as
the
representative of his son, filed a Petition for Habeas Corpus and
Custody, before the Regional Trial Court of Muntinlupa City.
appropriate special action under Rule 65. The aggrieved
party must show that the court gravely abused its discretion
in issuing the interlocutory order. In the present case, it is
incumbent upon petitioners to show that the trial court
gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where

On January 23, 2003, the trial court issued the following rightful custody
order:
is withheld from a person entitled thereto. Under Article 211
Upon verified Petition for a Writ of Habeas of the Family Code, respondent Loran and petitioner Marie
Corpus by Petitioners, the Respondents Marie Antonette have joint parental authority over their son and
Antonette Abigail C.Salientes, Orlando consequently joint custody.
B. Salientes and Rosario C. Salientes are
hereby directed to produce and bring before this
Court the body of minor Lorenzo
Emmanuel Salientes Abanilla on January 31, Further, although the couple is separated de facto, the
2003. issue of

custody has yet to be adjudicated by the court. In the

Petitioners moved for reconsideration which the court
denied.
Consequently, petitioners filed a petition for certiorari with
absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the
present case, private respondents cause of action is the
deprivation of his right to see his child as alleged in his
petition. Hence, the remedy of habeas corpus is available to
him.

4
 the Court of

Appeals, but the same was dismissed. In a petition for habeas corpus, the childs welfare is
the supreme

consideration. The Child and Youth Welfare Code

Petitioners moved for reconsideration, which was denied unequivocally provides that in all questions regarding the
on March 19, care and custody, among others, of the child, his welfare
shall be the paramount consideration.
2004.

Again, it bears stressing that the order did not grant

Hence, petitioners interposed this appeal by certiorari. custody of the

minor to any of the parties but merely directed petitioners to

produce the minor in court and explain why private
respondent is prevented from seeing his child.

Moreover, Article 213 of the Family Code deals with

the judicial

adjudication of custody and serves as a guideline for the

proper award of custody by the court. Petitioners can raise it
as a counter argument for private respondents petition for
custody. But it is not a basis for preventing the father to see
his own child. Nothing in the said provision disallows a father
from seeing or visiting his child under seven years of age.

5

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
CASE NO. 1: BAGTAS vs. HON. RUTH C. SANTOS AND GALLARDO
FACTS
Antonio and Rosita S. Gallardo (Spouses Gallardo) are the
parents of
Maricel S. Gallardo. Two weeks after graduating from high school
in April 2000, Maricel ran away to live with her boyfriend. Maricel
became pregnant and gave birth to Maryl Joy S. Gallardo.
Maricels boyfriend left her.
In sum, the trial court did not err in issuing the orders
dated
January 23, 2003 and February 24, 2003. Hence, the Court of
Appeals properly dismissed the petition for certiorari against
the said orders of the trial court.
ISSUE RULING
Who has the rightful
custody for Mary Joy?
Article 214 of the Civil Code states that in case of
absence or
unsuitability of the parents, substitute parental authority
shall be exercised by the surviving grandparent. Article 216
states that in default of parents or a judicially appointed
6

In February 2002, Maricel returned to her parents. On the
same day,
Maricel ran away again and lived with Noel B. Bagtas and Lydia B.
Sioson at Ma. Corazon, Unirock, Barangay Sta. Cruz, Antipolo City.
Maricel went to Negros Occidental and left Maryl Joy in the
custody of Bagtas and Sioson.
In a letter5 dated 5 February 2001, Maricel relinquished her
rights over
Maryl Joy to Bagtas and his wife.
In April 2002, the Spouses Gallardo tried to obtain the
custody of Maryl
Joy from Bagtas and Sioson. Bagtas and Sioson refused. Unable to
settle the matter, the Spouses Gallardo filed with the RTC a
petition6 for habeas corpus.
In its Order7 dated 10 July 2002, the RTC issued a writ
of habeas8 corpus directing the deputy sheriff to produce Maryl
Joy before it and to summon Bagtas and Sioson to explain why
they were withholding the custody of Maryl Joy.
guardian, the surviving grandparent shall exercise substitute
parental authority over the child. Accordingly, in its 21 April
2003 Order, the RTC held that:
Petitioners are, under the law (Art. 214, Family
Code), authorized to exercise substitute
parental authority over the child in case of
death, absence or unsuitability of the parents,
the entitlement to the legal custody of the
child being necessarily included therein to
make possible and/or enable the petitioners to
discharge their duties as substitute parents.
In its 11 June 2004 Decision, the CA held that:
While it cannot be gainsaid that private
respondents obtained initial custody of the
minor in violation of a valid court order, we
nonetheless sustain the
judgment a quo dismissing the petition and
validating such rightful custody over Maryl Joy.
This is because private respondents are the
grandparents of Maryl Joy, hence, lawfully
authorized to exercise substitute parental
authority over her in the absence of her
parents.
In determining who has the rightful custody over a
child, the childs
7

The Spouses Gallardo, Bagtas and Sioson entered into a
compromise
agreement.
that the child should be placed in custody of the
petitioners on Friday, Saturday and Sunday;
that the child should be returned to the
respondents by the petitioners on Sunday at
8:00 oclock in the and
that the child can be brought by the
respondents to Valenzuela but should be
returned to the petitioners on Friday morning.
On 29 September 2002, Bagtas and Sioson learned that
Rosita S. Gallardo
brought Maryl Joy to Samar. In their motion 10 dated 30 September
2002, Bagtas and Sioson prayed that the Spouses Gallardo be
directed to produce Maryl Joy before the RTC, that they be
directed to explain why they violated the RTCs 13 September
2002 Order, and that they be cited in contempt. In their
motion11 to dismiss dated 11 October 2002, Bagtas and Sioson
prayed that the Spouses Gallardos action be dismissed pursuant
to Section 3, Rule 17, of the Rules of Court. Section 3 states that
If, for no justifiable cause, the plaintiff fails x x x to comply with x
x x any order of the court, the complaint may be dismissed upon
welfare is the most important consideration. The court is not
bound by any legal right of a person over the child.
In Sombong v. Court of Appeals,22the Court held that:
The controversy does not involve the
question of personal freedom, because an infant is presumed
to be in the custody of someone until he attains majority age.
In passing on the writ in a child custody case, the court deals
with a matter of an equitable nature. Not bound by any
mere legal right of parent or guardian, the court gives
his or her claim to the custody ofthe child due weight
as a claim founded on human nature and considered
generally equitable and just. Therefore, these cases are
decided, not on the legal right of the petitioner to be relieved
from unlawful imprisonment or detention, as in the case of
adults, but on the courts view of the best interests of those
whose welfare requires that they be in custody of one person
or another. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any
person, but should, in the consideration of the facts,
leave it in such custody as its welfare at the time
appears to require. In short, the childs welfare is the
supreme consideration.
Considering that the childs welfare is an all-important
factor in custody cases, the Child and Youth Welfare Code
unequivocally provides that in all questions regarding the care
and custody, among others, of the child, his welfare shall be
the paramount consideration. In the same vein, the Family
Code authorizes the courts to, if the welfare of the child so
8
motion of the defendant or upon the courts own motion. Bagtas demands, deprive the parents concerned of parental
and Sioson claimed that the Spouses Gallardo failed to comply authority over the child or adopt such measures as may be
with the RTCs 13 September 2002 Order. proper under the circumstances. (Emphasis supplied)

In its Order12 dated 15 October 2002, the RTC cited the The proceedings before the RTC leave so much to be
Spouses Gallardo desired. While

in contempt, fined them P500, and ordered them to produce a remand of the case would mean further delay, Maryl Joys best
Maryl Joy before the trial court. interest demands that proper proceedings be conducted to
determine the fitness of the Spouses Gallardo to take care of her.

WHEREFORE, the Court REMANDS the case to the Regional

In their motion for reconsideration dated 27 December Trial
2002, Bagtas and
Court, Judicial Region 4, Branch 72, Antipolo City, for the purpose of
Sioson alleged that the ground for the dismissal of the action was receiving evidence to determine the fitness of the Spouses Antonio
erroneous. The action should have been dismissed pursuant to and Rosita S. Gallardo to have custody of Maryl Joy Gallardo.
Section 3, Rule 17, of the Rules of Court. They prayed that Maryl
Joy be returned to them to preserve the status quo ante.

Bagtas filed with the Court of Appeals a petition for

certiorari under Rule

65 of the Rules of Court.

9
 CASE NO. 2: VANCIL vs. BELMES

FACTS ISSUE RULING

Who between the mother

Petitioner, Bonifacia Vancil, is the mother of Reeder and grandmother of
minor Vincent should be
C. Vancil, a Navy At the outset, let it be stressed that in her
his guardian
Manifestation/
serviceman of the USA who died in the said country on December
22, 1986. During his lifetime, Reeder had two (2) children named Motion, dated September 15, 1998, respondent
Valerie and Vincent by his common-law wife, Helen G. Belmes. HelenBelmes stated that her daughter Valerie turned
eighteen on September 2, 1998 as shown by her Birth
Certificate.3Respondent thus prayed that this case be
dismissed with respect to Valerie, she being no longer a
Sometime in May of 1987, Bonifacia Vancil commenced proper subject of guardianship proceedings. The said
before the Manifestation/Motion was noted by this Court in its
Resolution dated November 11, 1998.
Regional Trial Court of Cebu City a guardianship proceedings over
the persons and properties of minors Valerie and Vincent.

Considering that Valerie is already of major age, this

petition has
It is claimed in the petition that the minors are residents of
Cebu City, become moot with respect to her.

Philippines and have an estate consisting of proceeds from their

fathers death pension benefits with a probable value of
P100,000.00. This Court agrees with the ruling of the CA that
respondent, being

10

On August 13, 1987, the natural mother of the minors,
HelenBelmes,
submitted an opposition to the subject guardianship proceedings
asseverating that she had already filed a similar petition for
guardianship before the Regional Trial Court of Pagadian City.
On October 12, 1988, after due proceedings, the trial court
rejected and
denied Belmes motion to remove and/or to disqualify Bonifacia
as guardian of Valerie and Vincent, Jr. and instead ordered
petitioner Bonifacia Vancil to enter the office and perform her
duties as such guardian upon the posting of a bond of P50,000.00.
The subsequent attempt for a reconsideration was likewise
dismissed in an Order dated November 24, 1988.
On appeal, the CA reverse the RTC order.
On March 10, 1998, Bonifacia Vancil filed with this Court
the present
petition.
the natural mother of the minor, has the preferential right
over that of petitioner to be his guardian. This ruling finds
support in Article 211 of the Family Code which provides:
Art. 211. The father and the mother shall
jointly exercise parental authority over the
persons of their common children. In case of
disagreement, the fathers decision shall
prevail, unless there is a judicial order to the
contrary,xxx
Indeed, being the natural mother of minor Vincent,
respondent has
the corresponding natural and legal right to his custody.
In Sagala-Eslao vs. Court of Appeals, this Court held:
Of considerable importance is the rule long
accepted by the courts that the right of
parents to the custody of their minor children
is one of the natural rights incident to
parenthood, a right supported by law and
sound public policy. The right is an inherent
one, which is not created by the state or
decisions of the courts, but derives from the
nature of the parental relationship.
11
 Petitioners claim to be the guardian of said minor can
only be

realized by way of substitute parental authoritypursuant to

Article 214 of the Family Code, thus:

Art. 214. In case of death, absence or

unsuitability of the parents, substitute
parental authority shall be exercised by the
surviving grandparent, x x x.

In Santos, Sr. vs. Court of Appeals,5 this Court ruled:

The law vests on the father and mother joint

parental authority over the persons of their
common children. In case of absence or death
of either parent, the parent present shall
continue exercising parental authority. Only in
case of the parents death, absence or
unsuitability may substitute parental authority
be exercised by the surviving grandparent.

Petitioner, as the surviving grandparent, can exercise

substitute

parental authority only in case of death, absence or

unsuitability of respondent. Considering that respondent is
very much alive and has exercised continuously parental
authority over Vincent, petitioner has to prove, in asserting
12
her right to be the minors guardian, respondents
unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to
be the guardian of Vincent.

Petitioner merely insists that respondent is morally

unfit as

guardian of Valerie considering that her (respondents) live in

partner raped Valerie several times. But Valerie, being now of
major age, is no longer a subject of this guardianship
proceeding.

Even assuming that respondent is unfit as guardian of

minor

Vincent, still petitioner cannot qualify as a substitute

guardian. It bears stressing that she is an American citizen
and a resident of Colorado. Obviously, she will not be able to
perform the responsibilities and obligations required of a
guardian. In fact, in her petition, she admitted the difficulty of
discharging the duties of a guardian by an expatriate, like
her. To be sure, she will merely delegate those duties to
someone else who may not also qualify as a guardian.

Significantly, this Court has held that courts should

not appoint
13
 persons as guardians who are not within the jurisdiction of
our courts for they will find it difficult to protect the wards.

WHEREFORE, the appealed Decision is hereby

AFFIRMED, with

modification in the sense that Valerie, who has attained the

age of majority, will no longer be under the guardianship of
respondent Helen Belmes.

CASE NO. 3: ST. JOSEPHS COLLEGE, ET. AL vs. MIRANDA

FACTS ISSUE RULING

14
 While inside the premises of St. Josephs College, the class
where
respondent Miranda belonged was conducting a science
experiment about fusion of sulphur powder andiron fillings under
the tutelage of Rosalinda Tabugo, she being the teacher and the
employee, while the adviser is Estafania Abdan.
Tabugo left her class while it was doing the experiment
without having
adequately secured it from any untoward incident or occurrence.
In the middle of the experiment, [Jayson], who was the assistant
leader of one of the class groups, checked the result of the
experiment by looking into the test tube with magnifying glass.
The test tube was being held by one of his group mates who
moved it close and towards the eye of [Jayson]. At that instance,
the compound in the test tube spurted out and several particles of
which hit [Jaysons] eye and the different parts of the bodies of
some of his group mates. As a result thereof, [Jaysons] eyes were
chemically burned, particularly his left eye, for which he had to
undergo surgery and had to spend for his medication. Upon filing
of this case [in] the lower court, his wound had not completely
healed and still had to undergo another surgery.
Upon learning of the incident and because of the need for
finances,
[Jaysons] mother, who was working abroad, had to rush back
home for which she spent P36,070.00 for her fares and had to
forego her salary from November 23, 1994 to December 26, 1994,
in the amount of at least P40,000.00.
Jason and his parents suffered sleepless nights, mental
anguish and
wounded feelings as a result of his injury due to the petitioners
fault and failure to exercise the degree of care and diligence
incumbent upon each one of them. Thus, they should be held
liable for moral damages.
Whether the petitioners Yes.
were liable to the
accident as a special As found by both lower courts, proximate cause of the
guardian? Jasons
injury was the concurrent failure of petitioners top prevent to
foreseeable mishap that occurred during the conduct of the
science experiment. Petitioners were negligent by failing to
exercise the higher degree of care, caution and foresight
incumbent upon the school, its administrators and teachers.
"The defense of due diligence of a good father of a family
raised by [petitioner] St. Joseph College will not exculpate it
from liability because it has been shown that it was guilty of
inexcusable laxity in the supervision of its teachers (despite
an apparent rigid screening process for hiring) and in the
maintenance of what should have been a safe and secured
environment for conducting dangerous experiments.
[Petitioner] school is still liable for the wrongful acts of the
teachers and employees because it had full information on
the nature of dangerous science experiments but did not take
affirmative steps to avert damage and injury to students.
The fact that there has never been any accident in the
past during
the conduct of science experiments is not a justification to be
complacent in just preserving the status quo and do away
with creative foresight to install safety measures to protect
the students. Schools should not simply install safety
reminders and distribute safety instructional manuals. More
importantly, schools should provide protective gears and
devices to shield students from expected risks and
anticipated dangers.
15
 TITLEXI. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
CASE NO. 1: REPUBLIC vs. GRANADA

FACTS ISSUE RULING

On 10 March 2005, petitioner Republic of the Philippines, Whether the CA seriously NO.
represented by erred in dismissing the
the OSG, filed a Motion for Reconsideration of this Decision. Petition We affirm the CA ruling.
Petitioner argued that Yolanda had failed to exert earnest efforts on the ground that the Article 41 of the Family Code provides:
to locate Cyrus and thus failed to prove her well-founded belief Decision of the RTC in a Art.41.A marriage contracted by any
that he was already dead. However, in an Order dated 29 June summary proceeding for person during the subsistence of a previous
2007, the RTC denied the motion. the declaration of marriage shall be null and void, unless before
presumptive death is the celebration of the subsequent
Petitioner filed a Notice of Appeal to elevate the case to immediately final and marriage, the prior spouse had been absent
the CA, executory upon notice to for four consecutive years and the spouse
presumably under Rule 41, Section 2(a) of the Rules of Court. the parties and, hence, is present has a well-founded belief that the
Yolanda filed a Motion to Dismiss on the ground that the CA had not subject to ordinary absent spouse was already dead. In case of
no jurisdiction over the appeal. She argued that her Petition for appeal disappearance where there is danger of death
Declaration of Presumptive Death, based on Article 41 of the under the circumstances set forth in the
Family Code, was a summary judicial proceeding, in which the provisions of Article 391 of the Civil Code, an
judgment is immediately final and executory and, thus, not absence of only two years shall be sufficient.
appealable. For the purpose of contracting the
subsequent marriage
In its 23 January 2009 Resolution, the appellate court under the preceding paragraph the spouse
granted Yolandas present must
Motion to Dismiss on the ground of lack of jurisdiction. institute a summary proceeding as
provided in this
16
Citing Republic v. Bermudez-Lorino, the CA ruled that a petition
for declaration of presumptive death under Rule 41 of the Family
Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.
Hence, the present Rule 45 Petition.
Petitioner moved for reconsideration, but its motion was
likewise denied
by the CA in a Resolution dated 3 April 2009.
Code for the declaration of presumptive
death of the
absentee, without prejudice to the effect
of reappearance
of the absent spouse. (Underscoring
supplied.)
Clearly, a petition for declaration of presumptive
death of an
absent spouse for the purpose of contracting a subsequent
marriage under Article 41 of the Family Code is a summary
proceeding as provided for under the Family Code.
Further, Title XI of the Family Code is entitled
Summary Judicial
Proceedings in the Family Law. Subsumed thereunder are
Articles 238 and 247, which provide:
Art.238.Until modified by the Supreme
Court, the procedural rules in this Title shall
apply in all cases provided for in this Code
requiring summary court proceedings. Such
cases shall be decided in an expeditious
manner without regard to technical rules.
xxxxxxxxx
Art.247.The judgment of the court shall be
immediately final and executory.
Further, Article 253 of the Family Code reads:
ART.253.The foregoing rules in Chapters 2
and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73,
96, 124 and 217, insofar as they are
applicable.
17
 Taken together, Articles 41, 238, 247 and 253 of the
Family Code
provide that since a petition for declaration of presumptive
death is a summary proceeding, the judgment of the court
therein shall be immediately final and executory.

We do not agree with the Republics argument that

Republic v.
Jomoc superseded our ruling in Republic v. Bermudez-Lorino.
As observed by the CA, the Supreme Court in Jomoc did not
expound on the characteristics of a summary proceeding
under the Family Code. In contrast,the Court in Bermudez-
Lorino expressly stated that its ruling on the impropriety of
an ordinary appeal as a vehicle for questioning the trial
courts Decision in a summary proceeding for declaration of
presumptive death under Article 41 of the Family Code was
intended to set the records straight and for the future
guidance of the bench and the bar.

In sum, under Article 41 of the Family Code, the losing

party in a
summary proceeding for the declaration of presumptive
death may file a petition for certiorari with the CA on the
ground that, in rendering judgment thereon, the trial court
committed grave abuse of discretion amounting to lack of
jurisdiction. From the decision of the CA, the aggrieved party
may elevate the matter to this Court via a petition for review
on certiorari under Rule 45 of the Rules of Court.

Evidently then, the CA did not commit any error in

dismissing the
Republics Notice of Appeal on the ground that the RTC

18
 judgment on the Petition for Declaration of Presumptive
Death of respondents spouse was immediately final and
executory and, hence, not subject to ordinary appeal.

TITLE XII. USE OF SURNAMES

RA 9048 CLERICAL ERROR LAW
RA 9255 AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR FATHER

CASE NO. 1: SILVERIO vs. REPUBLIC

FACTS ISSUE RULING

NO.
19
 On November 26, 2002, petitioner Rommel Jacinto Dantes
Silverio filed a May a person
petition for the change of his first name and sex in his birth successfully petition for a The State has an interest in the names borne by
certificate in the Regional Trial Court of Manila. individuals and
change of name and sex
appearing in the birth
certificate to reflect the entities for purposes of identification. A change of name is a
Petitioner alleged in his petition that he was born in the
result of a sex privilege, not a right. Petitions for change of name are
City of Manila to controlled by statutes. In this connection, Article 376 of the
reassignment surgery?
Civil Code provides:
the spouses Melecio Petines Silverio and Anita Aquino Dantes on
April 4, 1962. His name was registered as Rommel Jacinto Dantes ART. 376. No person can change his name or
Silverio in his certificate of live birth (birth certificate). His sex surname without judicial authority.
was registered as male.

This Civil Code provision was amended by RA 9048

He further alleged that he is a male transsexual, that is,
(Clerical Error
anatomically
Law). In particular, Section 1 of RA 9048 provides:
male but feels, thinks and acts as a female and that he had
always identified himself with girls since childhood. Feeling SECTION 1. Authority to Correct Clerical or
trapped in a mans body, he consulted several doctors in the Typographical Error and Change of First Name
United States. He underwent psychological examination, hormone or Nickname.No entry in a civil register shall
treatment and breast augmentation. His attempts to transform be changed or corrected without a judicial
himself to a woman culminated on January 27, 2001 when he order, except for clerical or typographical
underwent sex reassignment surgery2 in Bangkok, Thailand. He errors and change of first name or nickname
was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a which can be corrected or changed by the
plastic and reconstruction surgeon in the Philippines, who issued a concerned city or municipal civil registrar or
medical certificate attesting that he (petitioner) had in fact consul general in accordance with the
undergone the procedure. provisions of this Act and its implementing
rules and regulations.

From then on, petitioner lived as a female and was in fact

20
 engaged to be
married. He then sought to have his name in his birth certificate
changed from Rommel Jacinto to Mely, and his sex from
male to female.
An order setting the case for initial hearing was published
in the Peoples
ournal Tonight, a newspaper of general circulation in Metro Manila,
for three consecutive weeks.3 Copies of the order were sent to the
Office of the Solicitor General (OSG) and the civil registrar of
Manila.
RA 9048 now governs the change of first name. It
vests the power
and authority to entertain petitions for change of first name
to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of
the Rules of Court, until and unless an administrative petition
for change of name is first filed and subsequently denied. It
likewise lays down the corresponding venue, form and
procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative
in nature, not judicial.

On the scheduled initial hearing, jurisdictional

requirements were
RA 9048 does not sanction a change of first name on
established. No opposition to the petition was made. the ground of

sex reassignment. Rather than avoiding confusion, changing

petitioners first name for his declared purpose may only
On June 4, 2003, the trial court rendered a decision in favor
create grave complications in the civil registry and the public
of petitioner. interest.

On August 18, 2003, the Republic of the Philippines Before a person can legally change his given name, he
(Republic), thru the
must present

21
OSG, filed a petition for certiorari in the Court of Appeals. It
alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.
proper or reasonable cause or any compelling reason
justifying such change. In addition, he must show that he will
be prejudiced by the use of his true and official name. In this
case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.

On February 23, 2006, the Court of Appeals rendered a

decision in favor
In sum, the petition in the trial court in so far as it
of the Republic. prayed for the

change of petitioners first name was not within that courts

primary jurisdiction as the petition should have been filed
Hence, this appeal. with the local civil registrar concerned, assuming it could be
legally done. It was an improper remedy because the proper
remedy was administrative, that is, that provided under RA
9048. It was also filed in the wrong venue as the proper
venue was in the Office of the Civil Registrar of Manila where
his birth certificate is kept. More importantly, it had no merit
since the use of his true and official name does not prejudice
him at all. For all these reasons, the Court of Appeals
correctly dismissed petitioners petition in so far as the
change of his first name was concerned.

CASE NO. 2 REPUBLIC vs. CAGANDAHAN

FACTS ISSUE RULING

Whether the trial court NO.

22

On December 11, 2003, respondent Jennifer Cagandahan
filed a Petition
for Correction of Entries in Birth Certificate before the RTC, Branch
33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January
13, 1981 and
was registered as a female in the Certificate of Live Birth but while
growing up, she developed secondary male characteristics and
was diagnosed to have Congenital Adrenal Hyperplasia (CAH)
which is a condition where persons thus afflicted possess both
male and female characteristics.
She further alleged that she was diagnosed to have clitoral
hyperthropy
in her early years and at age six, underwent an ultrasound where
it was discovered that she has small ovaries. At age thirteen, tests
revealed that her ovarian structures had minimized, she has
stopped growing and she has no breast or menstrual
development. She then alleged that for all interests and
appearances as well as in mind and emotion, she has become a
male person. Thus, she prayed that her birth certificate be
corrected such that her gender be changed from female to male
and her first name be changed from Jennifer to Jeff.
To prove her claim, respondent testified and presented the
erred in ordering the
correction of entries in CAH is one of many conditions that involve intersex
the birth certificate of anatomy.
respondent to change her During the twentieth century, medicine adopted the term
sex or gender, from intersexuality to apply to human beings who cannot be
female to male, on the classified as either male or female. The term is now of
ground of her medical widespread use.
condition known as CAH
In deciding this case, we consider the compassionate
calls for
ecognition of the various degrees of intersex as variations
which should not be subject to outright denial. It has been
suggested that there is some middle ground between the
sexes, a no-mans land for those individuals who are neither
truly male nor truly female. The current state of Philippine
statutes apparently compels that a person be classified either
as a male or as a female, but this Court is not controlled by
mere appearances when nature itself fundamentally negates
such rigid classification.
In the instant case, if we determine respondent to be
a female,
then there is no basis for a change in the birth certificate
entry for gender. But if we determine, based on medical
testimony and scientific development showing the
respondent to be other than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed
23
 testimony of
Dr. Michael Sionzon of the Department of Psychiatry, University of
the Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondents condition is known as
CAH. He explained that genetically respondent is female but
because her body secretes male hormones, her female organs did
not develop normally and she has two sex organsfemale and
male. He testified that this condition is very rare, that
respondents uterus is not fully developed because of lack of
female hormones, and that she has no monthly period. He further
testified that respondents condition is permanent and
recommended the change of gender because respondent has
made up her mind, adjusted to her chosen role as male, and the
gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated
January 12,
2005.
Thus, this petition by the OSG seeking a reversal of the
above-mentioned
ruling.
(neither
consistently and categorically female nor consistently and
categorically male) composition. Respondent has female (XX)
chromosomes. However, respondents body system naturally
produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the
phenotypic features of a male.
Ultimately, we are of the view that where the person
is biologically
or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent,
having reached the age of majority, with good reason thinks
of his/her sex. Respondent here thinks of himself as a male
and considering that his body produces high levels of male
hormones (androgen) there is preponderant biological
support for considering him as being male. Sexual
development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the
gender of such persons, like respondent, is fixed.
In the absence of a law on the matter, the Court will
not dictate on
respondent concerning a matter so innately private as ones
sexuality and lifestyle preferences, much less on whether or
not to undergo medical treatment to reverse the male
tendency due to CAH. The Court will not consider respondent
as having erred in not choosing to undergo treatment in order
to become or remain as a female. Neither will the Court force
24
respondent to undergo treatment and to take medication in
order to fit the mold of a female, as society commonly
currently knows this gender of the human species.
Respondent is the one who has to live with his intersex
anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the
path of his sexual development and maturation. In the
absence of evidence that respondent is an
incompetent and in the absence of evidence to show that
classifying respondent as a male will harm other members of
society who are equally entitled to protection under the law,
the Court affirms as valid and justified the respondents
position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1)

the diversity of

nature; and (2) how an individual deals with what

nature has handed out. In other words, we respect
respondents congenital condition and his mature decision to
be a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with
his unordinary state case and thus help make his life easier,
considering the unique circumstances in this

As for respondents change of name under Rule 103,

this Court has

held that a change of name is not a matter of right and the

consequences that will follow. The trial courts grant of
respondents change of name from Jennifer to Jeff implies a

25
 change of a feminine name to a masculine name. Considering
the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in
respondents change of name. Such a change will conform
with the change of the entry in his birth certificate from
female to male.

CASE NO. 3: REMO vs. SEC. OF FOREIGN AFFAIRS

FACTS ISSUE RULING

Petitioner Maria Virginia V. Remo is a married Filipino 1. In the case of

renewal of
citizen whose
passport, may a 1. In the case of renewal of passport, a married woman
Philippine passport was then expiring on 27 October 2000.
married woman
Petitioner being married to Francisco R. Rallonza, the following may either
adopt her maiden
entries appear in her passport: Rallonza as her surname, Maria adopt her husbands surname or continuously use her
name?
Virginia as her given name, and Remo as her middle name. maiden name. If she chooses to adopt her husbands
Prior to the expiry of the validity of her passport, petitioner, whose 2. Does he DFA erred surname in her new passport, the DFA additionally requires
in denying such the submission of an authenticated copy of the marriage
marriage still subsists, applied for the renewal of her passport
request of Mrs. certificate. Otherwise, if she prefers to continue using her
with the DFA office in Chicago, Illinois, U.S.A., with a request to
Remo?
revert to her maiden name and surname in the replacement maiden name, she may still do so. The DFA will not prohibit
passport. her from continuously using her maiden name.

Petitioners request having been denied, Atty. Manuel Once a married woman opted to adopt her husbands
Joseph R. Bretana surname in
26
III, representing petitioner, wrote then Secretary of Foreign Affairs
Domingo Siason expressing a similar request.
On 28 August 2000, the DFA, through Assistant Secretary
Belen F. Anota,
denied the request, stating thus:
This has reference to your letter dated 17 August
2000 regarding one Ms. Maria Virginia V. Remo who
is applying for renewal of her passport using her
maiden name.
This Office is cognizant of the provision in the law
that it is not obligatory for a married woman to use
her husbands name. Use of maiden name is
allowed in passport application only if the
married name has not been used in previous
application. The Implementing Rules and
Regulations for Philippine Passport Act of 1996
clearly defines the conditions when a woman
applicant may revert to her maiden name, that is,
only in cases of annulment of marriage, divorce
and death of the husband. Ms. Remos case does
not meet any of these conditions. 4(Emphasis
supplied)
Petitioners motion for reconsideration of the above-letter
resolution was
denied in a letter dated 13 October 2000.
On 15 November 2000, petitioner filed an appeal with the
Office of the
President.
On 27 July 2004, the Office of the President dismissed the
her passport, she may not revert to the use of her maiden
name, except in the cases enumerated in Section 5(d) of RA
8239. These instances are: (1) death of husband, (2)
divorce, (3) annulment, or (4) nullity of marriage.
Since petitioners marriage to her husband subsists,
she may not resume her maiden name in the
replacement passport. Otherwise stated, a married
womans reversion to the use of her maiden name must be
based only on the severance of the marriage.
Title XIII of the Civil Code governs the use of
surnames. In the case
of a married woman, Article 370 of the Civil Code provides:
ART.370.A married woman may use:
(1)Her
maiden first name and surname and add her
husbands
surname, or (2)Her maiden first name and
her husbands
surname, (3)Her husbands full name,
but prefixing a
word indicating that she is his wife, such as
Mrs.
We agree with petitioner that the use of the word
may in the
above provision indicates that the use of the husbands
surname by the wife is permissive rather than obligatory. This
has been settled in the case of Yasin v. Honorable Judge
Sharia District Court.
Clearly, a married woman has an option, but not a
duty, to use the
27
 appeal and
ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or
the Philippine Passport Act of 1996offers no leeway for any other
interpretation than that only in case of divorce, annulment, or
declaration [of nullity] of marriage may a married woman revert to
her maiden name for passport purposes. The Office of the
President further held that in case of conflict between a general
and special law, the latter will control the former regardless of the
respective dates of passage. Since the Civil Code is a general law,
it should yield to RA 8239.On 28 October 2004, the Office of the
President denied the motion for reconsideration.
Petitioner filed with the Court of Appeals a petition for
review under Rule
43 of the Rules of Civil Procedure.
In its Decision of 27 May 2005, the Court of Appeals denied
the petition
and affirmed the ruling of the Office of the President.
surname of the husband in any of the ways provided by
Article 370 of the Civil Code. 13 She is therefore allowed to use
not only any of the three names provided in Article 370, but
also her maiden name upon marriage. She is not prohibited
from continuously using her maiden name once she is
married because when a woman marries, she does not
change her name but only her civil status. Further, this
interpretation is in consonance with the principle that
surnames indicate descent.
The Court notes that petitioner would not have
encountered any
problems in the replacement passport had she opted to
continuously and consistently use her maiden name from the
moment she was married and from the time she first applied
for a Philippine passport. However, petitioner consciously
chose to use her husbands surname before, in her previous
passport application, and now desires to resume her name. If
we allow petitioners present request, definitely nothing
maiden prevents her in the future from requesting to revert
to the use of her husbands surname. Such unjustified
changes in ones name and identity in a passport, which is
considered superior to all other official documents, cannot be
countenanced. Otherwise undue confusion and inconsistency
in the records of passport holders will arise. Thus, for
passport issuance purposes, a married woman, such as
petitioner, whose marriage subsists, may not change her
family name at will.
2. The acquisition of a Philippine passport is a privilege.
The law
recognizes the passport applicants constitutional right to
travel. However, the State is also mandated to protect and
28
 maintain the integrity and credibility of the passport and
travel documents proceeding from it as a Philippine
passport remains at all times the property of the
Government. The holder is merely a possessor of the
passport as long as it is valid and the same may not be
surrendered to any person or entity other than the
government or its representative.

As the OSG correctly pointed out:

[T]he issuance of passports is impressed
with public interest. A passport is an official
document of identity and nationality issued
to a person intending to travel or sojourn in
foreign countries. It is issued by the
Philippine government to its citizens
requesting other governments to allow its
holder to pass safely and freely, and in case
of need, to give him/her aid and protection.
xxx

Viewed in the light of the foregoing, it is within

respondents
competence to regulate any amendments intended to be
made therein, including the denial of unreasonable and
whimsical requests for amendments such as in the instant
case.

29