Persons Part 11

PERSONS and FAMILY RELATIONS (Atty.
Vincent Juan) 1
4TH EXAM COVERAGE CASE COMPILATION
PARENTAL AUTTHORITY
ESPIRITU v. COURT OF APPEALS
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA
LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA
MASAUDING, respondents.
MELO, J.:
This case concerns a seemingly void marriage and a
relationship which went sour. The innocent victims are two
children horn out of the same union. Upon this Court now
falls the not too welcome task of deciding the issue of who,
between the father and mother, is more suitable and better
qualified in helping the children to grow into responsible,
well-adjusted, and happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita
Masauding first met sometime in 1976 in Iligan City where
Reynaldo was employed by the National Steel Corporation
and Teresita was employed as a nurse in a local hospital. In
1977, Teresita left for Los Angeles, California to work as a
nurse. She was able to acquire immigrant status sometime
later. In 1984, Reynaldo was sent by his employer, the
National Steel Corporation, to Pittsburgh, Pennsylvania as its
liaison officer and Reynaldo and Teresita then began to
maintain a common law relationship of husband and wife. On
August 16, 1986, their daughter, Rosalind Therese, was
born. On October 7, 1987, while they were on a brief
vacation in the Philippines, Reynaldo and Teresita got
married, and upon their return to the United States, their
second child, a son, this time, and given the name Reginald
Vince, was born on January 12, 1988.
The relationship of the couple deteriorated until they decided
to separate sometime in 1990. Teresita blamed Reynaldo for
the break-up, stating he was always nagging her about
money matters. Reynaldo, on the other hand, contended that
Teresita was a spendthrift, buying expensive jewelry and
antique furniture instead of attending to household
expenses.
Instead of giving their marriage a second chance as
allegedly pleaded by Reynaldo, Teresita left Reynaldo and
the children and went back to California. She claims,

however, that she spent a lot of money on long distance
telephone calls to keep in constant touch with her children.
Reynaldo brought his children home to the Philippines, but
because his assignment in Pittsburgh was not yet
completed, he was sent back by his company to Pittsburgh.
He had to leave his children with his sister, co-petitioner
Guillerma Layug and her family.
Teresita claims that she did not immediately follow her
children because Reynaldo filed a criminal case for bigamy
against her and she was afraid of being arrested. The
judgment of conviction in the bigamy case was actually
rendered only on September 29, 1994. (Per Judge Harriet O.
Demetriou, Branch 70, RTC, Pasig, pp. 210-222,Rollo).
Teresita, meanwhile, decided to return to the Philippines and
on December 8, 1992 and filed the petition for a writ
of habeas corpus against herein two petitioners to gain
custody over the children, thus starting the whole
proceedings now reaching this Court.
On June 30, 1993, the trial court dismissed the petition
for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have
sole parental authority over them but with rights of visitation
to be agreed upon by the parties and to be approved by the
Court.
On February 16, 1994, the Court of Appeals per Justice
Isnani, with Justices de Pano and Ibay-Somera concurring,
reversed the trial court's decision. It gave custody to Teresita
and visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in
the main contending that the Court of Appeals disregarded
the factual findings of the trial court; that the Court of
Appeals further engaged in speculations and conjectures,
resulting in its erroneous conclusion that custody of the
children should be given to respondent Teresita.
We believe that respondent court resolved the question of
custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code
which reads:
Art. 363. In all questions on the care, custody, education and
property of the children, the latter's welfare shall be
paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling
reasons for such measure.
and of Article 213 of the Family Code which in turn provides:
Art. 213. In case of separation of the parents parental
authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age unless the parent chosen is unfit.
PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 2

The decision under review is based on the report of the
Code Commission which drafted Article 213 that a child
below seven years still needs the loving, tender care that
only a mother can give and which, presumably, a father
cannot give in equal measure. The commentaries of a
member of the Code Commission, former Court of Appeals
Justice Alicia Sempio-Diy, in a textbook on the Family Code,
were also taken into account. Justice Diy believes that a
child below seven years should still be awarded to her
mother even if the latter is a prostitute or is unfaithful to her
husband. This is on the theory that moral dereliction has no
effect on a baby unable to understand such action.
(Handbook on the Family Code of the Philippines, 1988 Ed.,
p. 297.)
The Court of Appeals was unduly swayed by an abstract
presumption of law rather than an appreciation of relevant
facts and the law which should apply to those facts. The task
of choosing the parent to whom custody shall be awarded is
not a ministerial function to be determined by a simple
determination of the age of a minor child. Whether a child is
under or over seven years of age, the paramount criterion
must always be the child's interests. Discretion is given to
the court to decide who can best assure the welfare of the
child, and award the custody on the basis of that
consideration. In Unson III vs. Navarro (101 SCRA 183
[1980]), we laid down the rule that "in all 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", and in Medina vs. Makabali (27 SCRA
502 [1969]), where custody of the minor was given to a nonrelative as against the mother, then the country's leading
civilist, Justice J.B.L. Reyes, explained its basis in this
manner:
. . . While our law recognizes the right of a parent to the
custody of her child, Courts must not lose sight of the basic
principle that "in all questions on the care, custody, education
and property of children, the latter's welfare shall be
paramount" (Civil Code of the Philippines. Art. 363), and that
for compelling reasons, even a child under seven may be
ordered separated from the mother (do). This is as it should
be, for in the continual evolution of legal institutions,
the patria potestas has been transformed from thejus vitae
ac necis (right of life and death) of the Roman law, under
which the offspring was virtually a chattel of his parents into
a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now
supreme. As pointed out by Puig Pena, now "there is no
power, but a task; no complex of rights (of parents) but a
sum of duties; no sovereignty, but a sacred trust for the
welfare of the minor."
As a result, the right of parents to the company and custody
of their children is but ancillary to the proper discharge of
parental duties to provide the children with adequate
support, education, moral, intellectual and civic training and
development (Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child,
courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven
years of age, the law presumes that the mother is the best
custodian. The presumption is strong but it is not conclusive.
It can be overcome by "compelling reasons". If a child is over
seven, his choice is paramount but, again, the court is not
bound by that choice. In its discretion, the court may find the
chosen parent unfit and award custody to the other parent,
or even to a third party as it deems fit under the
circumstances.
In the present case, both Rosalind and Reginald are now
over seven years of age. Rosalind celebrated her seventh
birthday on August 16, 1993 while Reginald reached the
same age on January 12, 1995. Both are studying in
reputable schools and appear to be fairly intelligent children,
quite capable of thoughtfully determining the parent with
whom they would want to live. Once the choice has been
made, the burden returns to the court to investigate if the
parent thus chosen is unfit to assume parental authority and
custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of
scrutinizing the records to discover the choice of the children
and rather than verifying whether that parent is fit or unfit,
respondent court simply followed statutory presumptions and
general propositions applicable to ordinary or common
situations. The seven-year age limit was mechanically
treated as an arbitrary cut off period and not a guide based
on a strong presumption.
A scrutiny of the pleadings in this case indicates that
Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother separated
from her children and the humiliation she suffered as a result
of her character being made a key issue in court rather than
the feelings and future, the best interests and welfare of her
children. While the bonds between a mother and her small
child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of
custody. One cannot say that his or her suffering is greater
than that of the other parent. It is not so much the suffering,
pride, and other feelings of either parent but the welfare of
the child which is the paramount consideration.
We are inclined to sustain the findings and conclusions of the
regional trial court because it gave greater attention to the
choice of Rosalind and considered in detail all the relevant
factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was
referred to a child psychologist, Rita Flores Macabulos, to
determine the effects of uprooting her from the Assumption
College where she was studying. Four different tests were
administered. The results of the tests are quite revealing.
The responses of Rosalind about her mother were very
negative causing the psychologist to delve deeper into the

child's anxiety. Among the things revealed by Rosalind was
an incident where she saw her mother hugging and kissing a
"bad" man who lived in their house and worked for her father.
Rosalind refused to talk to her mother even on the
telephone. She tended to be emotionally emblazed because
of constant fears that she may have to leave school and her
aunt's family to go back to the United States to live with her
mother. The 5-1/2 page report deals at length with feelings of
insecurity and anxiety arising from strong conflict with the
mother. The child tried to compensate by having fantasy
activities. All of the 8 recommendations of the child
psychologist show that Rosalind chooses petitioners over the
private respondent and that her welfare will be best served
by staying with them (pp. 199-205, Rollo).
At about the same time, a social welfare case study was
conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare
Officer Emma D. Estrada Lopez, stated that the child
Rosalind refused to go back to the United States and be
reunited with her mother. She felt unloved and uncared for.
Rosalind was more attached to her Yaya who did everything
for her and Reginald. The child was found suffering from
emotional shock caused by her mother's infidelity. The
application for travel clearance was recommended for denial
(pp. 206-209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age
reference in the law applies to the date when the petition for
a writ of habeas corpus is filed, not to the date when a
decision is rendered. This argument is flawed.
Considerations involving the choice made by a child must be
ascertained at the time that either parent is given custody
over the child. The matter of custody is not permanent and
unalterable. If the parent who was given custody suffers a
future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted (Unson III
v. Navarro, supra, at p. 189). To be sure, the welfare, the
best interests, the benefit, and the good of the child must be
determined as of the time that either parent is chosen to be
the custodian. At the present time, both children are over 7
years of age and are thus perfectly capable of making a fairly
intelligent choice.
According to respondent Teresita, she and her children had
tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from
taking them away from her. We are more inclined to believe
the father's contention that the children ignored Teresita in
court because such an emotional display as described by
Teresita in her pleadings could not have been missed by the
trial court. Unlike the Justices of the Court of Appeals Fourth
Division, Judge Lucas P. Bersamin personally observed the
children and their mother in the courtroom. What the Judge
found is diametrically opposed to the contentions of
respondent Teresita. The Judge had this to say on the
matter.
And, lastly, the Court cannot look at petitioner [Teresita] in
similar light, or with more understanding, especially as her
conduct and demeanor in the courtroom (during most of the

proceedings) or elsewhere (but in the presence of the
undersigned presiding judge) demonstrated her ebulent
temper that tended to corroborate the alleged violence of her
physical punishment of the children (even if only for ordinary
disciplinary purposes) and emotional instability, typified by
her failure (or refusal?) to show deference and respect to the
Court and the other parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence and
impartiality of the expert witnesses. Respondent court, in
turn, states that the trial court should have considered the
fact that Reynaldo and his sister, herein petitioner Guillerma
Layug, hired the two expert witnesses. Actually, this was
taken into account by the trial court which stated that the
allegations of bias and unfairness made by Teresita against
the psychologist and social worker were not substantiated.
The trial court stated that the professional integrity and
competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add
that their testimony remain uncontroverted. We also note that
the examinations made by the experts were conducted in
late 1991, well over a year before the filing by Teresita of
the habeas corpus petition in December, 1992. Thus, the
examinations were at that time not intended to support
petitioners' position in litigation, because there was then not
even an impending possibility of one. That they were
subsequently utilized in the case a quo when it did
materialize does not change the tenor in which they were
first obtained.
Furthermore, such examinations, when presented to the
court must be construed to have been presented not to sway
the court in favor of any of the parties, but to assist the court
in the determination of the issue before it. The persons who
effected such examinations were presented in the capacity of
expert witnesses testifying on matters within their respective
knowledge and expertise. On this matter, this Court had
occasion to rule in the case of Sali vs. Abukakar, et al. (17
SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert
examines certain contested documents, at the request, not
of a public officer or agency of the Government, but of a
private litigant, does not necessarily nullify the examination
thus made. Its purpose, presumably, to assist the court
having jurisdiction over said litigation, in the performance of
its duty to settle correctly the issues relative to said
documents. Even a non-expert private individual may
examine the same, if there are facts within his knowledge
which may help, the court in the determination of said issue.
Such examination, which may properly be undertaken by a
non-expert private individual, does not, certainly become null
and void when the examiner is an expert and/or an officer of
the NBI.
(pp. 991-992.)

In regard to testimony of expert witnesses it was held
in Salomon, et al. vs. Intermediate Appellate Court, et al.
(185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert
testimonies, they may place whatever weight they choose
upon such testimonies in accordance with the facts of the
case. The relative weight and sufficiency of expert testimony
is peculiarly within the province of the trial court to decide,
considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of
the reasoning by which he has supported his opinion, his
possible bias in favor of the side for whom he testifies, the
fact that he is a paid witness, the relative opportunities for
study and observation of the matters about which he
testifies, and any other matters which reserve to illuminate
his statements. The opinion of the expert may not be
arbitrarily rejected; it is to be considered by the court in view
of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be
given controlling effect (20 Am. Jur., 1056-1058). The
problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the
absence of an abuse of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the
opportunity to assess the witnesses' character and to
observe their respective demeanor that the trial court opted
to rely on their testimony, and we believe that the trial court
was correct in its action.
Under direct examination an February 4, 1993, Social
Worker Lopez stated that Rosalind and her aunt were about
to board a plane when they were off-loaded because there
was no required clearance. They were referred to her office,
at which time Reginald was also brought along and
interviewed. One of the regular duties of Social Worker
Lopez in her job appears to be the interview of minors who
leave for abroad with their parents or other persons. The
interview was for purposes of foreign travel by a 5-year old
child and had nothing to do with any pending litigation. On
cross-examination, Social Worker Lopez stated that her
assessment of the minor's hatred for her mother was based
on the disclosures of the minor. It is inconceivable, much
less presumable that Ms. Lopez would compromise her
position, ethics, and the public trust reposed on a person of
her position in the course of doing her job by falsely testifying
just to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum
laude graduate in Psychology and an M.A. degree holder
also in Psychology with her thesis graded "Excellent". She
was a candidate for a doctoral degree at the time of the
interview. Petitioner Reynaldo may have shouldered the cost
of the interview but Ms. Macabulos services were secured
because Assumption College wanted an examination of the
child for school purposes and not because of any litigation.
She may have been paid to examine the child and to render
a finding based on her examination, but she was not paid to
fabricate such findings in favor of the party who retained her
services. In this instance it was not even petitioner Reynaldo
but the school authorities who initiated the same. It cannot
be presumed that a professional of her potential and stature
would compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying
Reynaldo at the time she had a subsisting marriage with
another man.
2. She is guilty of grave indiscretion in carrying on a love
affair with one of the Reynaldo's fellow NSC employees.
3. She is incapable of providing the children with necessities
and conveniences commensurate to their social standing
because she does not even own any home in the
Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the
compelling reasons under the law which would justify
depriving her of custody over the children; worse, she
claims, these findings are non-existent and have not been
proved by clear and convincing evidence.
Public and private respondents give undue weight to the
matter of a child under 7 years of age not to be separated
from the mother, without considering what the law itself
denominates as compelling reasons or relevant
considerations to otherwise decree. In the Unson III case,
earlier mentioned, this Court stated that it found no difficulty
in not awarding custody to the mother, it being in the best
interest of the child "to be freed from the obviously
unwholesome,
not
to say immoral influence, that the situation where [the
mother] had placed herself . . . might create in the moral and
social outlook of [the child] who was in her formative and
most impressionable stage . . ."
Then too, it must be noted that both Rosalind and Reginald
are now over 7 years of age. They understand the difference
between right and wrong, ethical behavior and deviant
immorality. Their best interests would be better served in an
environment characterized by emotional stability and a
certain degree of material sufficiency. There is nothing in the
records to show that Reynaldo is an "unfit" person under
Article 213 of the Family Code. In fact, he has been trying his
best to give the children the kind of attention and care which
the mother is not in a position to extend.
The argument that the charges against the mother are false
is not supported by the records. The findings of the trial court
are based on evidence.

Teresita does not deny that she was legally married to
Roberto Lustado on December 17, 1984 in California (p. 13,
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC
Decision). Less than a year later, she had already driven
across the continental United States to commence living with
another man, petitioner Reynaldo, in Pittsburgh. The two
were married on October 7, 1987. Of course, to dilute this
disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo,
Teresita tried to picture Reynaldo as a rapist, alleging further
that she told Reynaldo about her marriage to Lustado on the
occasion when she was raped by Reynaldo. Expectedly,
Judge Harriet Demetriou of the Pasig RTC lent no weight to
such tale. And even if this story were given credence, it adds
to and not subtracts from the conviction of this Court about
Teresita's values. Rape is an insidious crime against privacy.
Confiding to one's potential rapist about a prior marriage is
not a very convincing indication that the potential victim is
averse to the act. The implication created is that the act
would be acceptable if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior
marriage only much later. In fact, the rape incident itself is
unlikely against a woman who had driven three days and
three nights from California, who went straight to the house
of Reynaldo in Pittsburgh and upon arriving went to bed and,
who immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of
the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio
Gonzales right there in the house of petitioner Reynaldo and
respondent Teresita. Perdencio had been assigned by the
National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee,
in the latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the
traumatic effect of seeing her mother hugging and kissing a
boarder in their house. The record also shows that it was
Teresita who left the conjugal home and the children, bound
for California. When Perdencio Gonzales was reassigned to
the Philippines, Teresita followed him and was seen in his
company in a Cebu hotel, staying in one room and taking
breakfast together. More significant is that letters and written
messages from Teresita to Perdencio were submitted in
evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from
one man to another does not fall under "compelling reasons"
is neither meritorious nor applicable in this case. Not only are
the children over seven years old and their clear choice is
the father, but the illicit or immoral activities of the mother
had already caused emotional disturbances, personality
conflicts, and exposure to conflicting moral values, at least in
Rosalind. This is not to mention her conviction for the crime
of bigamy, which from the records appears to have become
final (pp. 210-222,Rollo).
Respondent court's finding that the father could not very well
perform the role of a sole parent and substitute mother
because his job is in the United States while the children will
be left behind with their aunt in the Philippines is misplaced.
The assignment of Reynaldo in Pittsburgh is or was a
temporary one. He was sent there to oversee the purchase
of a steel mill component and various equipment needed by
the National Steel Corporation in the Philippines. Once the
purchases are completed, there is nothing to keep him there
anymore. In fact, in a letter dated January 30, 1995,
Reynaldo informs this Court of the completion of his
assignment abroad and of his permanent return to the
Philippines
(ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial
court. The children are now both over seven years old. Their
choice of the parent with whom they prefer to stay is clear
from the record. From all indications, Reynaldo is a fit
person, thus meeting the two requirements found in the first
paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no
longer applies as the children are over seven years.
Assuming that the presumption should have persuasive
value for children only one or two years beyond the age of
seven years mentioned in the statute, there are compelling
reasons and relevant considerations not to grant custody to
the mother. The children understand the unfortunate
shortcomings of their mother and have been affected in their
emotional growth by her behavior.
WHEREFORE, the petition is hereby GRANTED. The
decision of the Court of Appeals is reversed and set aside,
and the decision of Branch 96 of the Regional Trial Court of
the National Capital Judicial Region stationed in Quezon City
and presided over by the Honorable Lucas P. Bersamin in its
Civil Case No. Q-92-14206 awarding custody of the minors
Rosalind and Reginald Espiritu to their father, Reynaldo
Espiritu, is reinstated. No special pronouncement is made as
to costs.
SO ORDERED.
SANTOS, SR. v. COURT OF APPEALS

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 113054 March 16, 1995

LEOUEL SANTOS, SR., petitioner-appellant,
vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and
OFELIA BEDIA, respondents-appellees.
After an ex-parte hearing on October 8, 1990, the trial court

issued an order on the same day awarding custody of the
child Leouel Santos, Jr. to his grandparents, Leopoldo and
Ofelia Bedia. 3
ROMERO, J.:
Petitioner appealed this Order to the Court of Appeals. 4 In its

decision dated April 30, 1992, respondent appellate court
affirmed
the
trial
court's
order. 5 His motion for reconsideration having been
denied, 6 petitioner now brings the instant petition for review
for a reversal of the appellate court's decision.
In this petition for review, we are asked to overturn the

decision of the Court of Appeals 1 granting custody of sixyear old Leouel Santos, Jr. to his maternal grandparents and
not to his father, Santos, Sr. What is sought is a decision
which should definitively settle the matter of the care,
custody and control of the boy.
Happily, unlike King Solomon, we need not merely rely on a
"wise and understanding heart," for there is man's law to
guide us and that is, the Family Code.
The antecedent facts giving rise to the case at bench are as
follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia
Bedia a nurse by profession, were married in Iloilo City in
1986. Their union beget only one child, Leouel Santos, Jr.
who was born July 18, 1987.
From the time the boy was released from the hospital until
sometime thereafter, he had been in the care and custody of
his maternal grandparents, private respondents herein,
Leopoldo and Ofelia Bedia.
Petitioner and wife Julia agreed to place Leouel Jr. in the
temporary custody of the latter's parents, the respondent
spouses Bedia. The latter alleged that they paid for all the
hospital bills, as well as the subsequent support of the boy
because petitioner could not afford to do so.
The boy's mother, Julia Bedia-Santos, left for the United
States in May 1988 to work. Petitioner alleged that he is not
aware of her whereabouts and his efforts to locate her in the
United States proved futile. Private respondents claim that
although abroad, their daughter Julia had been sending
financial support to them for her son.
On September 2, 1990, petitioner along with his two
brothers, visited the Bedia household, where three-year old
Leouel Jr. was staying. Private respondents contend that
through deceit and false pretensions, petitioner abducted the
boy and clandestinely spirited him away to his hometown in
Bacong, Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody
and Control of Minor Ward Leouel Santos Jr.," before the
Regional Trial Court of Iloilo City, with Santos, Sr. as
respondent. 2
The Court of Appeals erred, according to petitioner, in

awarding custody of the boy to his grandparents and not to
himself. He contends that since private respondents have
failed to show that petitioner is an unfit and unsuitable father,
substitute parental authority granted to the boy's
grandparents under Art. 214 of the Family Code is
inappropriate.
Petitioner adds that the reasons relied upon by the private
respondents in having custody over the boy, are flimsy and
insufficient to deprive him of his natural and legal right to
have custody.
On the other hand, private respondents aver that they can
provide an air-conditioned room for the boy and that
petitioner would not be in a position to take care of his son
since he has to be assigned to different places. They also
allege that the petitioner did not give a single centavo for the
boy's support and maintenance. When the boy was about to
be released from the hospital, they were the ones who paid
the fees because their daughter and petitioner had no
money. Besides, Julia Bedia Santos, their daughter, had
entrusted the boy to them before she left for the United
States. Furthermore, petitioner's use of trickery and deceit in
abducting the child in 1990, after being hospitably treated by
private respondents, does not speak well of his fitness and
suitability as a parent.
The Bedias argue that although the law recognizes the right
of a parent to his child's custody, ultimately the primary
consideration is what is best for the happiness and welfare of
the latter. As maternal grandparents who have amply
demonstrated their love and affection for the boy since his
infancy, they claim to be in the best position to promote the
child's welfare.
The issue to be resolved here boils down to who should
properly be awarded custody of the minor Leouel Santos, Jr.
The right of custody accorded to parents springs from the
exercise of parental authority. Parental authority or patria
potestas in Roman Law is the juridical institution whereby
parents rightfully assume control and protection of their
unemancipated children to the extent required by the latter' s
needs. 7 It is a mass of rights and obligations which the law
grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of
their intellect and the education of their heart and

senses. 8 As regards parental authority, "there is no power,
but a task; no complex of rights, but a sum of duties; no
sovereignty but a sacred trust for the welfare of the minor." 9
Parental authority and responsibility are inalienable and may
not be transferred or renounced except in cases authorized
by law. 10 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
children's home or an orphan institution. 11 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. 12 Even if a definite renunciation is
manifest, the law still disallows the same. 13
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep
them
in
their
custody
and
company. 14 The child's welfare is always the paramount
consideration in all questions concerning his care and
custody. 15
The law vests on the father and mother joint parental
authority over the persons of their common children. 16 In
case of absence or death of either parent, the parent present
shall continue exercising parental authority. 17 Only in case of
the parents' death, absence or unsuitability may substitute
parental authority be exercised by the surviving
grandparent. 18 The situation obtaining in the case at bench
is one where the mother of the minor Santos, Jr., is working
in the United States while the father, petitioner Santos, Sr., is
present. Not only are they physically apart but are also
emotionally separated. There has been no decree of legal
separation and petitioner's attempt to obtain an annulment of
the marriage on the ground of psychological incapacity of his
wife has failed. 19
Petitioner assails the decisions of both the trial court and the
appellate court to award custody of his minor son to his
parents-in-law, the Bedia spouses on the ground that under
Art. 214 of the Family Code, substitute parental authority of
the grandparents is proper only when both parents are dead,
absent or unsuitable. Petitioner's unfitness, according to him,
has not been successfully shown by private respondents.
The Court of Appeals held that although there is no evidence
to show that petitioner (Santos Sr.) is "depraved, a habitual
drunkard or poor, he may nevertheless be considered, as he
is in fact so considered, to be unsuitable to be allowed to
have custody of minor Leouel Santos Jr." 20
The respondent appellate court, in affirming the trial court's
order of October 8, 1990, adopted as its own the latter's
observations, to wit:
From the evidence adduced, this Court is of the opinion that
it is to be (sic) best interest of the minor Leouel Santos, Jr.
that he be placed under the care, custody, and control of his
maternal grandparents the petitioners herein. The petitioners
have amply demonstrated their love and devotion to their

grandson while the natural father, respondent herein, has
shown little interest in his welfare as reflected by his conduct
in the past. Moreover the fact that petitioners are well-off
financially, should be carefully considered in awarding to
them the custody of the minor herein, lest the breaking of
such ties with his maternal grandparents might deprive the
boy of an eventual college education and other material
advantages (Consaul vs. Consaul, 63 N.Y.S. 688).
Respondent had never given any previous financial support
to his son, while, upon the other hand, the latter receives so
much bounty from his maternal grandparents and his mother
as well, who is now gainfully employed in the United States.
Moreover, the fact that respondent, as a military personnel
who has to shuttle from one assignment to another, and, in
these troubled times, may have pressing and compelling
military duties which may prevent him from attending to his
son at times when the latter needs him most, militates
strongly against said respondent. Additionally, the child is
sickly and asthmatic and needs the loving and tender care of
those who can provide for it. 21
We find the aforementioned considerations insufficient to
defeat petitioner's parental authority and the concomitant
right to have custody over the minor Leouel Santos, Jr.,
particularly since he has not been shown to be an unsuitable
and unfit parent. Private respondents' demonstrated love and
affection for the boy, notwithstanding, the legitimate father is
still preferred over the grandparents. 22 The latter's wealth is
not a deciding factor, particularly because there is no proof
that at the present time, petitioner is in no position to support
the boy. The fact that he was unable to provide financial
support for his minor son from birth up to over three years
when he took the boy from his in-laws without permission,
should not be sufficient reason to strip him of his permanent
right to the child's custody. While petitioner's previous
inattention is inexcusable and merits only the severest
criticism, it cannot be construed as abandonment. His appeal
of the unfavorable decision against him and his efforts to
keep his only child in his custody may be regarded as
serious efforts to rectify his past misdeeds. To award him
custody would help enhance the bond between parent and
son. It would also give the father a chance to prove his love
for his son and for the son to experience the warmth and
support which a father can give.
His being a soldier is likewise no bar to allowing him custody
over the boy. So many men in uniform who are assigned to
different parts of the country in the service of the nation, are
still the natural guardians of their children. It is not just to
deprive our soldiers of authority, care and custody over their
children merely because of the normal consequences of their
duties and assignments, such as temporary separation from
their families.
Petitioner's employment of trickery in spiriting away his boy
from his in-laws, though unjustifiable, is likewise not a
ground to wrest custody from him.

Private respondents' attachment to the young boy whom
they have reared for the past three years is understandable.
Still and all, the law considers the natural love of a parent to
outweigh that of the grandparents, such that only when the
parent present is shown to be unfit or unsuitable may the
grandparents exercise substitute parental authority, a fact
which has not been proven here.
The strong bonds of love and affection possessed by private
respondents as grandparents should not be seen as
incompatible with petitioner' right to custody over the child as
a father. Moreover, who is to say whether the petitioner's
financial standing may improve in the future?
WHEREFORE, the petition is GRANTED. The decision of
the respondent Court of Appeals dated April 30, 1992 as well
as its Resolution dated November 13, 1992 are hereby
REVERSED and SET ASIDE. Custody over the minor Leouel
Santos Jr. is awarded to his legitimate father, herein
petitioner Leouel Santos, Sr.
SO ORDERED.
ESLAO v. COURT OF APPEALS

SECOND DIVISION
[G.R. No. 116773. January 16, 1997]
TERESITA SAGALA-ESLAO, petitioner, vs. COURT OF
APPEALS and MARIA PAZ CORDEROOUYE, respondents.
DECISION
TORRES, JR., J.:
Children begin by loving their parents. After a time they
judge them. Rarely, if ever, do they forgive them.[1] Indeed,
parenthood is a riddle of no mean proportions except for its
mission. Thus, a mothers concern for her childs custody is
undying - such is a mothers love.
The right of the mother to the custody of her daughter

is the issue in the case at bar.
In this petition for review, Teresita Sagala-Eslao seeks
the reversal of the Court of Appeals decision [2] dated March
25, 1994, which affirmed the trial courts judgment granting
the petition of Maria Paz Cordero-Ouye to recover the
custody of her minor daughter from her mother-in-law,
Teresita Sagala-Eslao.
As found by the Court of Appeals, the facts of the case
are as follows:
From the evidence, it appears that on June 22, 1984,
petitioner Maria Paz Cordero-Ouye and Reynaldo Eslao
were married;[3] after their marriage, the couple stayed with
respondent Teresita Eslao, mother of the husband, at 1825,
Road 14, Fabie Estate, Paco, Manila; that out of their
marriage, two children were begotten, namely, Leslie Eslao
who was born on February 23, 1986 and Angelica Eslao who
was born on April 20, 1987;[4] in the meantime, Leslie was
entrusted to the care and custody of petitioners mother in
Sta. Ana, Pampanga, while Angelica stayed with her parents
at respondents house; on August 6, 1990, petitioners
husband Reynaldo Eslao died;[5] petitioner intended to bring
Angelica with her to Pampanga but the respondent prevailed
upon her to entrust the custody of Angelica to her,
respondent reasoning out that her son just died and to
assuage her grief therefor, she needed the company of the
child to at least compensate for the loss of her late son. In
the meantime, the petitioner returned to her mothers house
in Pampanga where she stayed with Leslie.
Subsequently, petitioner was introduced by her auntie to Dr.
James Manabu-Ouye, a Japanese-American, who is an
orthodontist practicing in the United States; their
acquaintance blossomed into a meaningful relationship
where on March 18, 1992, the petitioner and Dr. James
Ouye decided to get married; less than ten months
thereafter, or on January 15, 1993, the petitioner migrated to
San Francisco, California, USA, to join her new husband. At
present, the petitioner is a trainee at the Union Bank in San
Francisco, while her husband is a progressive practitioner of
his profession who owns three cars, a dental clinic and earns
US$5,000 a month. On June 24, 1993, the petitioner
returned to the Philippines to be reunited with her children
and bring them to the United States; the petitioner then
informed the respondent about her desire to take custody of
Angelica and explained that her present husband, Dr. James
Ouye, expressed his willingness to adopt Leslie and Angelica
and to provide for their support and education; however,
respondent resisted the idea by way of explaining that the
child was entrusted to her when she was ten days old and
accused
the
petitioner
of
having
abandoned
Angelica. Because of the adamant attitude of the
respondent, the petitioner then sought the assistance of a
lawyer, Atty. Mariano de Joya, Jr., who wrote a letter to the
respondent demanding for the return of the custody of
Angelica to her natural mother[6] and when the demand

remain[ed] unheeded, the petitioner instituted the present
action.[7]Missda
roughly P21,000, she spends about P10,000 for the

maintenance of her house.Sdaadsc
After the trial on the merits, the lower court rendered its
decision, the dispositive portion of which reads:
Despite the foregoing, however, and petitioners

genuine desire to remain with said child, that would qualify
her to have custody of Angelica, the trial courts disquisition,
in consonance with the provision that the childs welfare is
always the paramount consideration in all questions
concerning his care and custody[8] convinced this Court to
decide in favor of private respondent, thus:
WHEREFORE, finding the petition to be meritorious, the

Court grants the same and let the corresponding writ
issue. As a corollary, respondent Teresita Sagala-Eslao or
anyone acting under her behalf is hereby directed to cause
the immediate transfer of the custody of the minor Angelica
Cordero Eslao, to her natural mother, petitioner Maria Paz
Cordero-Ouye.
On the other hand, the side of the petitioner must also be

presented here. In this case, we see a picture of a real and
natural mother who is -
No pronouncement as to costs.
SO ORDERED.
On appeal, the respondent court affirmed in full the
decision of the trial court.
Hence, the instant petition by the minors paternal
grandmother, contending that the Court of Appeals erred:
I
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ
CORDERO-OUYE,
DID
NOT
ABANDON
MINOR,
ANGELICA ESLAO, TO THE CARE AND CUSTODY OF
THE PETITIONER TERESITA SAGALA-ESLAO.Missdaa
II
IN RULING THAT THERE WAS NO COMPELLING
REASON TO SEPARATE MINOR, ANGELICA ESLAO,
FROM PRIVATE RESPONDENT MARIA PAZ CORDEROOUYE, IN FAVOR OF PETITIONER TERESITA SAGALAESLAO.
III
IN NOT FINDING THAT PETITIONER TERESITA SAGALAESLAO, IS FIT TO BE GIVEN THE CUSTODY OF MINOR,
ANGELICA ESLAO.Sdaadsc
The petition is without merit.
Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take
care of Angelica; that she had managed to raise 12 children
of her own herself; that she has the financial means to carry
out her plans for Angelica; that she maintains a store which
earns a net income of about P500 a day, she gets P900 a
month as pension for the death of her husband, she rents
out rooms in her house which she owns, for which she earns
a total of P6,000 a month, and that from her gross income of
x x x legitimately, anxiously, and desperately trying to get

back her child in order to fill the void in her heart and
existence. She wants to make up for what she has failed to
do for her boy during the period when she was financially
unable to help him and when she could not have him in her
house because of the objection of the father. Now that she
has her own home and is in a better financial condition, she
wants her child back, and we repeat that she has not and
has never given him up definitely or with any idea of
permanence.[9]
The petitioner herein is married to an Orthodontist who has
a lucrative practice of his profession in San Francisco,
California, USA. The petitioner and her present husband
have a home of their own and they have three cars. The
petitioners husband is willing to adopt the petitioners
children. If the children will be with their mother, the
probability is that they will be afforded a bright
future. Contrast this situation with the one prevailing in the
respondents [grandmothers] house. As admitted by the
respondent, four of the rooms in her house are being rented
to other persons with each room occupied by 4 to 5
persons. Added to these persons are the respondents 2
sons, Samuel and Alfredo, and their respective families
(ibid., p. 54) and one can just visualize the kind of
atmosphere pervading thereat. And to aggravate the
situation, the house has only 2 toilets and 3 faucets. Finally,
considering that in all controversies involving the custody of
minors, the foremost criterion is the physical and moral well
being of the child taking into account the respective
resources and social and moral situations of the contending
parties (Union III vs. Mariano, 101 SCRA 183), the Court is
left with no other recourse but to grant the writ prayed for.[10]
Petitioner further contends that the respondent court
erred in finding that there was no abandonment committed
by the private respondent; that while judicial declaration of
abandonment of the child in a case filed for the purpose is
not here obtaining as mandated in Art. 229 of the Family
Code because petitioner failed to resort to such judicial
action, it does not ipso facto follow that there was in fact no
abandonment committed by the private respondent.
Petitioner also argues that it has been amply
demonstrated during the trial that private respondent had

indeed abandoned Angelica to the care and custody of the
petitioner; that during all the time that Angelica stayed with
petitioner, there were only three instances or occasions
wherein the private respondent saw Angelica; that private
respondent never visited Angelica on important occasions,
such as her birthday, and neither did the former give her
cards or gifts, not even a single candy; [11] that while private
respondent claims otherwise and that she visited Angelica
"many times" an insists that she visited Angelica as often as
four times a month and gave her remembrances such as
candies and clothes, she would not even remember when
the fourth birthday of Angelica was.
IN VIEW WHEREOF, the decision appealed from dated

March 25, 1994 being in accordance with law and the
evidence, the same is hereby AFFIRMED and the petition
DISMISSED for lack of merit.
SO ORDERED.
LAXAMANA v. LAXAMANA
FIRST DIVISION
[G.R. No. 144763. September 3, 2002]
We are not persuaded by such averments.
[12]
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,

we stated, viz:
REYMOND
B.
LAXAMANA, petitioner, vs.
LOURDES* D. LAXAMANA, respondent.
MA.
DECISION
xxx [Parental authority] is a mass of rights and obligations
which the law grants to parents for the purpose of the
childrens physical preservation and development, as well as
the cultivation of their intellect and the education of their
heart and senses.[13] As regards parental authority, there is
no power, but a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust for the welfare of
the minor.[14]
Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases
authorized by law.[15] 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.
[16]
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.[17] Even if a definite
renunciation is manifest, the law still disallows the same.[18]
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep
them in their custody and company.[19]
Thus, in the instant petition, when private respondent
entrusted the custody of her minor child to the petitioner,
what she gave to the latter was merely temporary custody
and it did not constitute abandonment or renunciation of
parental authority. For 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
which do not appear in the case at bar.
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.[20]
YNARES-SANTIAGO, J.:
This is another sad tale of an estranged couples tug-ofwar over the custody of their minor children. Petitioner
Reymond B. Laxamana and respondent Ma. Lourdes D.
Laxamana met sometime in 1983. Petitioner, who came
from a well-to-do family, was a graduate of Bachelor of Laws,
while respondent, a holder of a degree in banking and
finance, worked in a bank. After a whirlwind courtship,
petitioner, 31 years old and respondent, 33, got married on
June 6, 1984.[1] Respondent quit her job and became a fulltime housewife. Petitioner, on the other hand, operated buy
and sell, fishpond, and restaurant businesses for a
living. The union was blessed with three children twin
brothers Joseph and Vincent, born on March 15, 1985, and
Michael, born on June 19, 1986.[2]
All went well until petitioner became a drug
dependent. In October 1991, he was confined at the
Estrellas Home Care Clinic in Quezon City. He underwent
psychotherapy and psychopharmacological treatment and
was discharged on November 16, 1991.[3] Upon petition of
respondent, the Regional Trial Court of Quezon City, Branch
101, ordered petitioners confinement at the NARCOM-DRC
for treatment and rehabilitation.[4] Again, on October 30,
1996, the trial court granted petitioners voluntary
confinement for treatment and rehabilitation at the National
Bureau of Investigation-TRC.[5]
On April 25, 1997, the court issued an order declaring
petitioner already drug-free and directing him to report to a
certain Dr. Casimiro for out-patient counseling for 6 months
to one (1) year.[6]
Despite several confinements, respondent claimed
petitioner was not fully rehabilitated. His drug dependence
worsened and it became difficult for respondent and her
children to live with him. Petitioner allegedly became violent
and irritable. On some occasions, he even physically
assaulted respondent. Thus, on June 17, 1999, respondent

and her 3 children abandoned petitioner and transferred to
the house of her relatives.
On August 31, 1999, petitioner filed with the Regional
Trial Court of Quezon City, Branch 107, the instant petition
for habeas corpus praying for custody of his three children.
[7]
Respondent opposed the petition, citing the drug
dependence of petitioner.[8]
c.
once, MICHAEL had to quit school temporarily.
(2)
THEY witnessed their father when he was under the
influence of shabu.
(3)
THEY think their father had been angry at their
paternal grandmother and this anger was displaced to their
mother.
Meanwhile, on September 24, 1999, respondent filed a

petition for annulment of marriage with Branch 102 of the
Regional Trial Court of Quezon City.[9]
(4)
THEY hope their father will completely and
permanently recover from his drug habit; and their criteria of
his full recovery include:
On September 27, 1999, petitioner filed in the habeas

corpus case, a motion seeking visitation rights over his
children.[10] On December 7, 1999, after the parties reached
an agreement, the court issued an order granting visitation
rights to petitioner and directing the parties to undergo
psychiatric and psychological examination by a psychiatrist
of their common choice. The parties further agreed to
submit the case for resolution after the trial courts receipt of
the results of their psychiatric examination. The full text of
said order reads:
a.
The parties appeared with their respective lawyers. A

conference was held in open Court and the parties agreed
on the following:
(5)
At one point one of the sons, became very emotional
while he was narrating his story and he cried. I had to stop
the interview.
Effective this Saturday and every Saturday thereafter until

further order the petitioner shall fetch the children every
Saturday and Sunday at 9:00 oclock in the morning from the
house of the sister of respondent, Mrs. Corazon Soriano and
to be returned at 5:00 oclock in the afternoon of the same
days.
(6)
THEIR mother was fearful and terrified when their
father quarreled with her.
b.
he wont be hot-headed anymore and would not drive
their van recklessly.
c.
he would not tell unverifiable stories anymore.
d.
he would not poke a gun on his own head and ask the
children who they love better, mom or dad.
(7)
THEY hope their visits to their father will not interfere
with their school and academic schedules.
xxx
That the parties agreed to submit themselves to Dr. Teresito

Ocampo for psychiatric/psychological examination. Dr.
Ocampo is hereby advised to go over the records of this
case to enable him to have a thorough background of the
problem. He is hereby ordered to submit his findings directly
to this Court without furnishing the parties copies of his
report. And after the receipt of that report, thereafter, the
case shall be deemed submitted for decision.[11]
he will regain his easy-going attitude.
xxx
xxx
(3)
MARILOU is one of 4 siblings. She graduated from
college with a degree in banking and finance. SHE was a
carreer (sic) woman; worked for a bank for ten years;
subsequently quit her job to devote more time to her family.
(1)
THEY were affected psychologically by the drugrelated behavior of their father:
(4)
REYMOND is one of 5 siblings in a well-to-do
family. His
father
was
a
physician. During
his
developmental years, he recalled how his mother
complained incessantly about how bad the father was; only
to find later that the truth was opposite to the complaints of
his mother; that his father was nice, logical and
understanding. He recalled how he unselfishly served his
father --- he opened the door when he arrived home; he got
his portfolio; he brought the days newspaper; he removed
his shoes; he brought his glass of beer or his shot of
whisky. In short, he served him like a servant. His father
died of stroke in 1990.
a.
they have a difficult time concentrating on their
studies.
REYMOND graduated from college with a degree in LAW in

1984; he did not pass the bar.
b.
they are envious of their classmates whose families
live in peace and harmony.
His work history is as follows:
On January 6, 2000, Dr. Ocampo submitted the results

of his psychiatric evaluation on the parties and their
children. Pertinent portions thereof state:
SINGLY and COLLECTIVELY, the following information was
obtained in the interview of the 3 children:

a.
1985 to 1989 he operated fishponds.
b.
1976
restaurant.
to
1991
simultaneously,
he
operated
c.
1991 he engaged in the trading of vegetable, cooking
oil, and mangos.
d.
HE handled the leasing of a family property to a fast
food company.
The findings on the examination of the MENTAL STATUS
and MENTAL PROCESSES OF MARILOU showed a woman
who showed the psychological effects of the trauma she had
in the past. She is slightly edgy and fidgety with any external
noise. SHE answered all my questions coherently. Her
emotional state was stable throughout the interview. She is
of average intelligence. She was oriented to person, place
and date. Her memory for recent and remote events was
intact. She could process sets of figures and sets of
similarities and differences. Her content of thought was
negative for delusions, hallucinations, paranoia, suicidal and
homicidal ideation. She could process abstract ideas and
general
information. Her
attention
span
was
adequate. There was no evidence of impaired judgment.
The Zung anxiety/depression test: My mind is as clear as it

used to be (most of the time). There was no evidence of
brain damage. There is no significant affective response that
would affect his rationality.
The Social Adaptive Scale scored well in his capacity to
adapt to his situation. He reached out well to others. He is in
very good control of his emotions.
BASED ON MY FINDINGS I MADE THE FOLLOWING
COMMENTS AND CONCLUSIONS:
I. The CRITERIA for cure in drug addiction consist of:
1.
5-years and 10-years intervals of drug-free periods.
2.
change for the better of the maladaptive behaviors of
the addict consisting of telling lies, manipulative behavior,
melodramatic and hysterical actions.
3.
constructive and reproductive outlets for the mental
and physical energies of the addict.
4.
behavior oriented towards spiritual values and other
things.
The Rorschach ink blot test gave responses such as man

touching a woman, 2 people on a hi-five , 2 women
chatting, beast, stuffed animal, etc. Her past reflected
on her psyche. There is no creative process. There were no
bizarre ideas.
II BASED on such scientific and observable criteria, I

do not yet consider REYMOND LAXAMANA completely
cured even though his drug urine test at Medical City for
shabu was negative. (Emphasis supplied)
The ZUNG anxiety/depression test highlighted I get tired for

no reason; I feel that I am useful and needed (re,
son). There is moderate depression. However, she could
still make competent decisions.
III I DO NOT DETECT any evidence that the paternal visits

of the sons would be harmful or they would be in any
danger. The academic schedules of the sons has be taken
into account in determining the length and frequency of their
visits.
The Social Adaptation Scale scored well in her capacity to

adapt to her situation. There is no evidence of losing control.
xxx
The findings on the examination of the MENTAL STATUS

and MENTAL PROCESSES of REYMOND showed an
individual who presented himself in the best situation he
could possibly be. He is cool, calm and collected. He
answered all my questions coherently. He is of average
intelligence. He was oriented to person, place and date. His
memory for recent and remote events was intace (sic). His
content of thought was negative for delusions, hallucinations,
paranoia, suicidal and homicidal ideation. His attention span
was adequate. He could process abstract ideas, sets of
figures, and general information.
The Rorschach ink blot test gave responses such as
distorted chest , butterfly with scattered color, cat ran
over by a car, nothing 2 people, monster etc. There
is no central theme in his responses. There were no bizarre
ideas.
xxx
x x x.[12]
On January 14, 2000, the trial court rendered the

assailed decision awarding the custody of the three children
to respondent and giving visitation rights to petitioner. The
dispositive portion thereof states:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered:
1.
The children, Joseph, Michael and Vincent all
surnamed Laxamana are hereby ordered to remain under
the custody of the respondent.
2.
The visitation arrangement as per Order of December
7, 1999 is hereby incorporated and forms part of this
Decision. The parties are enjoined to comply with the terms
stated therein.
3.
The petitioner is hereby ordered to undergo urine
drug screen for shabu for three times (3x) per month every

ten (10) days, with the Dangerous Drugs Board. The said
Board is hereby ordered to submit the results of all tests
immediately as directed to this Court.
4.
The petitioner is hereby referred to undergo regular
counseling at the Free-Clinic at the East Avenue Medical
Center, Department of Health Out Patient Psychiatry
Department until further order. For this purpose, it is
suggested that he should see Dr. Teresito P. Ocampo to
make arrangements for said counseling.
Let copies of this Decision be furnished the Dangerous
Drugs Board and the Free-Clinic, Out Patient Psychiatry
Department, East Avenue Medical Center, Department of
Health for their information and guidance.
SO ORDERED.[13]
Aggrieved, petitioner filed the instant petition for review
on certiorari under Rule 45 of the Rules of Court, based on
the following:
I
THE COURT A QUO HAS DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS WHEN IT RESOLVED THE ISSUE OF
CUSTODY WITHOUT CONDUCTING A TRIAL TO
DETERMINE FACTUAL ISSUES.
II
THE COURT A QUO HAS RESOLVED THE ISSUE OF
CUSTODY IN A MANNER NOT IN ACCORD WITH LAW
AND WITH THE APPLICABLE DECISIONS OF THIS
HONORABLE SUPREME COURT WHEN IT RESOLVED
THE ISSUE OF CUSTODY WITHOUT CONSIDERING THE
PARAMOUNT INTEREST AND WELFARE OF HEREIN
PARTIES THREE (3) MINOR CHILDREN.
III
THE ASSAILED DECISION IS NULL AND VOID AS IT
DOES NOT COMPLY WITH SECTION 14 ARTICLE VIII OF
THE CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES.[14]
The core issue for resolution in the instant petition is
whether or not the trial court considered the paramount
interest and welfare of the children in awarding their custody
to respondent.
In controversies involving the care, custody and control
of their minor children, the contending parents stand on
equal footing before the court who shall make the selection
according to the best interest of the child. The child if over
seven years of age may be permitted to choose which parent
he/she prefers to live with, but the court is not bound by such
choice if the parent so chosen is unfit. In all cases, the sole
and foremost consideration is the physical, educational,

social and moral welfare of the child concerned, taking into
account the respective resources as well as social and moral
situations of the opposing parents.[15]
In Medina v. Makabali,[16] we stressed that this is as it
should be, for in the continual evolution of legal institutions,
the patria potestas has been transformed from the jus vitae
ac necis(right of life and death) of the Roman law, under
which the offspring was virtually a chattel of his parents, into
a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now
supreme. There is no power, but a task; no complex rights
of parents but a sum of duties; no sovereignty, but a sacred
trust for the welfare of the minor.
Mindful of the nature of the case at bar, the court a
quo should have conducted a trial notwithstanding the
agreement of the parties to submit the case for resolution on
the basis, inter alia, of the psychiatric report of Dr.
Teresito. Thus, petitioner is not estopped from questioning
the absence of a trial considering that said psychiatric report,
which was the courts primary basis in awarding custody to
respondent, is insufficient to justify the decision. The
fundamental policy of the State to promote and protect the
welfare of children shall not be disregarded by mere
technicality in resolving disputes which involve the family and
the youth.[17] While petitioner may have a history of drug
dependence, the records are inadequate as to his moral,
financial and social well-being. The results of the psychiatric
evaluation showing that he is not yet completely cured may
render him unfit to take custody of the children, but there is
no evidence to show that respondent is unfit to provide the
children with adequate support, education, as well as moral
and intellectual training and development. Moreover, the
children in this case were 14 and 15 years old at the time of
the promulgation of the decision, yet the court did not
ascertain their choice as to which parent they want to live
with. In its September 8, 1999 order, the trial court merely
stated that: The children were asked as to whether they
would like to be with petitioner but there are indications that
they entertain fears in their hearts and want to be sure that
their father is no longer a drug dependent.[18] There is no
showing that the court ascertained the categorical choice of
the children. These inadequacies could have been remedied
by an exhaustive trial probing into the accuracy of Dr.
Ocampos report and the capacity of both parties to raise
their children. The trial court was remiss in the fulfillment of
its duties when it approved the agreement of the parties to
submit the case for decision on the basis of sketchy findings
of facts.
In Lacson v. Lacson,[19] the case was remanded to the
trial court with respect to the issue of custody. In the said
case, the court a quo resolved the question of the childrens
custody based on the amicable settlement of the
spouses. Stressing the need for presentation of evidence
and a thorough proceedings, we explained

It is clear that every child [has] rights which are not and
should not be dependent solely on the wishes, much less the
whims and caprices, of his parents. His welfare should not
be subject to the parents' say-so or mutual agreement alone.
Where, as in this case, the parents are already separated in
fact, the courts must step in to determine in whose custody
the child can better be assured the rights granted to him by
law. The need, therefore, to present evidence regarding this
matter, becomes imperative. A careful scrutiny of the records
reveals that no such evidence was introduced in the CFI.
This latter court relied merely on the mutual agreement of
the spouses-parents. To be sure, this was not sufficient basis
to determine the fitness of each parent to be the custodian of
the children.
Besides, at least one of the children Enrique, the eldest
is now eleven years of age and should be given the choice of
the parent he wishes to live with. x x x.
In the instant case, the proceedings before the trial
court leave much to be desired. While a remand of this case
would mean further delay, the childrens paramount interest
demand that further proceedings be conducted to determine
the fitness of both petitioner and respondent to assume
custody of their minor children.
WHEREFORE, in view of all the foregoing, the instant
case is REMANDED to the Regional Trial Court of Quezon
City, Branch 107, for the purpose of receiving evidence to
determine the fitness of petitioner and respondent to take
custody of their children. Pending the final disposition of this
case, custody shall remain with respondent but subject to
petitioners visitation rights in accordance with the December
7, 1999 order of the trial court.
JOYCELYN
PABLO-GUALBERTO, petitioner,
vs.
CRISANTO
RAFAELITO
GUALBERTO
V, respondent.
[G.R. No. 156254. June 28, 2005]
CRISANTO RAFAELITO G. GUALBERTO V, petitioner,
vs. COURT OF APPEALS; Hon. HELEN B.
RICAFORT, Presiding Judge, Regional Trial
CourtParaaque
City, Branch
260;
and JOYCELYN
D.
PABLOGUALBERTO, respondents.
DECISION
PANGANIBAN, J.:
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.
The Case
Before us are two consolidated petitions. The first is a
Petition for Review[1] filed by Joycelyn Pablo-Gualberto under
Rule 45 of the Rules of Court, assailing the August 30, 2002
Decision[2] of the Court of Appeals (CA) in CA-GR SP No.
70878. The assailed Decision disposed as follows:
WHEREFORE, premises considered, the Petition for
Certiorari is hereby GRANTED. The assailed Order of May
17, 2002 is hereby SET ASIDE and ANNULLED. The
custody of the child is hereby ordered returned to [Crisanto
Rafaelito G. Gualberto V].
SO ORDERED.
The [respondent] court/Judge is hereby directed to consider,

hear and resolve [petitioners] motion to lift the award of
custody pendente lite of the child to [respondent].[3]
The second is a Petition for Certiorari[4] filed by Crisanto
Rafaelito Gualberto V under Rule 65 of the Rules of Court,
charging the appellate court with grave abuse of discretion
for denying his Motion for Partial Reconsideration of the
August 30, 2002 Decision. The denial was contained in the
CAs November 27, 2002 Resolution, which we quote:
GUALBERTO v. GUALBERTO
THIRD DIVISION
We could not find any cogent reason why the [last part of
the dispositive portion of our Decision of August 30, 2002]
should be deleted, hence, subject motion is hereby
DENIED.[5]
[G.R. No. 154994. June 28, 2005]

The Facts
The CA narrated the antecedents as follows:

x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto
V] filed before [the Regional Trial Court of Paraaque City] a
petition for declaration of nullity of his marriage to x x x
Joycelyn D. Pablo Gualberto, with an ancillary prayer for
custody pendente lite of their almost 4-year-old son, minor
Rafaello (the child, for brevity), whom [Joycelyn] allegedly
took away with her from the conjugal home and his school
(Infant Toddlers Discovery Center in Paraaque City) when
[she] decided to abandon [Crisanto] sometime in early
February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen
B. Ricafort] heard the ancillary prayer of [Crisanto] for
custody pendente lite. x x x [B]ecause [Joycelyn] allegedly
failed to appear despite notice, [Crisanto], a certain Col.
Renato Santos, and Ms. Cherry Batistel, testified before the
x x x Judge; x x x documentary evidence [was] also
presented[.] x x x [O]n April 3, 2002, x x x [the] Judge
awarded custody pendente lite of the child to [Crisanto.]
[T]he Order partly read x x x:
x x x Crisanto Rafaelito Gualberto V testified. He stated that
[Joycelyn] took their minor child with her to Caminawit, San
Jose, Occidental Mindoro. At that time, the minor was
enrolled at B.F. Homes, Paraaque City. Despite effort[s]
exerted by him, he has failed to see his child. [Joycelyn] and
the child are at present staying with the formers step-father
at the latters [residence] at Caminawit, San Jose, Occidental
Mindoro.
Renato Santos, President of United Security Logistic
testified that he was commissioned by [Crisanto] to conduct
surveillance on [Joycelyn] and came up with the conclusion
that [she] is having lesbian relations with one Noreen Gay
Cuidadano in Cebu City.
The findings of Renato Santos [were] corroborated by
Cherry Batistel, a house helper of the spouses who stated
that [the mother] does not care for the child as she very often
goes out of the house and on one occasion, she saw
[Joycelyn] slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental
authority over the persons of their children. In the case of
disagreement, the fathers decision shall prevail, unless
there is a judicial order to the contrary.
The authority of the father and mother over their children is
exercised jointly. This recognition, however, does not place
her in exactly the same place as the father; her authority is
subordinated to that of the father.
In all controversies regarding the custody of minors, the sole
and foremost consideration is the physical, educational,
social and moral welfare of the child, taking into account the
respective resources and social and moral situations of the
contending parties.
The Court believes that [Joycelyn] had no reason to take the

child with her. Moreover, per Sheriff returns, she is not with
him at Caminawit, San Jose, Occidental Mindoro.
WHEREFORE, pendente lite, the Court hereby awards
custody of the minor, Crisanto Rafaello P. Gualberto X to his
father, Crisanto Rafaelito G. Gualberto V.
x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion
to lift the award of custody pendente lite of the child to
[Crisanto] was set but the former did not allegedly present
any evidence to support her motion. However, on May 17,
2002, [the] Judge allegedly issued the assailed Order
reversing her Order of April 3, 2002 and this time awarding
custody of the child to [Joycelyn]. [T]he entire text of the
Order [is] herein reproduced, to wit:
Submitted is [Crisantos] Motion to Resolve Prayer for
Custody Pendente Lite and [Joycelyns] Motion to Dismiss
and the respective Oppositions thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact
that the person referred to in the caption of the Petition is
one JOCELYN Pablo Gualberto and not Joycelyn Pablo
Gualberto. [Joycelyn] knows she is the person referred to in
the Complaint. As a matter of fact, the body of the Complaint
states her name correct[ly]. The law is intended to facilitate
and promote the administration of justice, not to hinder or
delay it. Litigation should be practicable and convenient.
The error in the name of Joycelyn does not involve public
policy and has not prejudiced [her].
This case was filed on March 12, 2002. Several attempts
were made to serve summons on [Joycelyn] as shown by the
Sheriffs returns. It appears that on the 4th attempt on March
21, 2002, both Ma. Daisy and x x x Ronnie Nolasco,
[Joycelyns mother and stepfather, respectively,] read the
contents of the documents presented after which they
returned the same.
The Court believes that on that day, summons was duly
served and this Court acquired jurisdiction over [Joycelyn].
The filing of [Joycelyns annulment] case on March 26, 2002
was an after thought, perforce the Motion to [D]ismiss should
be denied.
The child subject of this Petition, Crisanto Rafaello P.
Gualberto is barely four years old. Under Article 213 of the
Family Code, he shall not be separated from his mother
unless the Court finds compelling reasons to order
otherwise. The Court finds the reason stated by [Crisanto]
not [to] be compelling reasons. The father should however
be entitled to spend time with the minor. These do not
appear compelling reasons to deprive him of the company of
his child.
When [Joycelyn] appeared before this Court, she stated that
she has no objection to the father visiting the child even
everyday provided it is in Mindoro.

The Court hereby grants the mother, [Joycelyn], the custody
of Crisanto Rafaello P. Gualberto, with [the] right of [Crisanto]
to have the child with him every other weekend.
WHEREFORE:
1.
The [M]otion to Dismiss is hereby DENIED;
2.
Custody pendente lite is hereby given to the
mother Joycelyn Pablo Gualberto with the right of the
father, x x x [Crisanto], to have him every other weekend.
3.
Parties are admonished not to use any other
agencies of the government like the CIDG to interfere
in this case and to harass the parties.[6]
In a Petition for Certiorari[7] before the CA, Crisanto
charged the Regional Trial Court (Branch 260) of Paraaque
City with grave abuse of discretion for issuing its aforequoted
May 17, 2002 Order. He alleged that this Order superseded,
without any factual or legal basis, the still valid and
subsisting
April
3,
2002
Order
awarding
him
custody pendente lite of his minor son; and that it violated
Section 14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisantos favor, the CA ruled that grave abuse
of discretion had been committed by the trial court in
reversing the latter courts previous Order dated April 3,
2002, by issuing the assailed May 17, 2002 Order. The
appellate court explained that the only incident to resolve
was Joycelyns Motion to Dismiss, not the issuance of the
earlier Order. According to the CA, the prior Order awarding
provisional custody to the father should prevail, not only
because it was issued after a hearing, but also because the
trial court did not resolve the correct incident in the later
Order.
Nonetheless, the CA stressed that the trial court judge
was not precluded from considering and resolving Joycelyns
Motion to lift the award of custody pendente lite to Crisanto,
as that Motion had yet to be properly considered and ruled
upon. However, it directed that the child be turned over to
him until the issue was resolved.
Hence, these Petitions.[8]
Issues
In GR No. 154994, Petitioner Joycelyn submits these
issues for our consideration:
1.
Whether or not the Respondent Court of Appeals,
when it awarded the custody of the child to the father,
violated Art. 213 of the Family Code, which mandates that
no child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to

order otherwise.
2.
Is it Article 213 or Article 211 which applies in this
case involving four-year old Rafaello?[9]
On the other hand, Crisanto raises the following issues:
A.
Did Respondent Court commit grave abuse of
discretion amounting to or in excess of jurisdiction when, in
its August 30, 2002 Decision, it ordered respondent
court/Judge to consider, hear and resolve the motion to lift
award of custody pendente lite of the child to petitioner and x
x x denied the motion for reconsideration thereof in its
November 27, 2002 Resolution, considering that: (1) there is
no such motion ever, then or now pending, with the court a
quo; (2) the November 27, 2002 Resolution is
unconstitutional; and (3) the April 3, 2002 Order of
respondent Judge, the validity of which has been upheld in
the August 30, 2002 Decision of the respondent Court, has
become final and executory; and
B.
Ought not the ancillary remedies [o]f habeas corpus,
because the whereabouts, physical and mental condition of
the illegally detained Minor Rafaello is now unknown to
petitioner and preliminary mandatory injunction with urgent
prayer for immediate issuance of preliminary [injunction],
petitioner having a clear and settled right to custody of Minor
Rafaello which has been violated and still is being
continuously violated by [petitioner Joycelyn], be granted by
this Honorable Court?[10]
Being interrelated, the procedural challenges and the
substantive issues in the two Petitions will be addressed
jointly.
The Courts Ruling

There is merit in the Petition in GR No. 154994, but not
in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994
Before going into the merits of the present controversy,
the Court shall first dispose of a threshold issue. In GR No.
154994, therein Respondent Crisanto contends that the
Petition for Review was filed beyond the deadline (October
24, 2002) allowed by the Rules of Court and by this Court.
He claims that Registry Bill No. 88 shows that the Petition
was sent by speed mail, only on November 4, 2002.
Furthermore, he assails the Petition for its prematurity, since
his Motion for Partial Reconsideration of the August 30, 2002
CA Decision was still pending before the appellate court.

Thus, he argues that the Supreme Court has no jurisdiction
over Joycelyns Petition.
Timeliness of the Petition
The manner of filing and service Joycelyns Petition by
mail is governed by Sections 3 and 7 of Rule 13 of the Rules
of Court, which we quote:
SEC. 3. Manner of filing. The filing of pleadings,
appearances, motions, notices, orders, judgments and all
other papers shall be made by presenting the original copies
thereof, plainly indicated as such personally to the clerk of
court or by sending them by registered mail. xxx In the
second case, the date of mailing of motions, pleadings and
other papers or payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in
court. The envelope shall be attached to the records of the
case.
x x x
xxx
xxx
SEC. 7. Service by mail. Service by registered mail shall

be made by depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his counsel at his
office, if known, otherwise at his residence, if known, with
postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after ten (10)
days if undelivered. If no registry service is available in the
locality of either the sender of the addressee, service may be
done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CAs
August 30, 2002 Decision on September 9, 2002. On
September 17, she filed before this Court a Motion for a 30day extension of time to file a petition for review on
certiorari. This Motion was granted, [11] and the deadline was
thus extended until October 24, 2002.
The postmaster satisfactorily clarifies that Registry Bill

No. 88, which shows the date November 2, 2002, merely
discloses when the mail matters received by the Bian Post
Office on October 24, 2002, were dispatched or sent to the
Central Mail Exchange for distribution to their final
destinations.[17] The Registry Bill does not reflect the actual
mailing date. Instead, it is the postal Registration
Book[18] that shows the list of mail matters that have been
registered for mailing on a particular day, along with the
names of the senders and the addressees. That book shows
that Registry Receipt Nos. 2832-A and 2832-B, pertaining to
the mailed matters for the Supreme Court, were issued on
October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of
Joycelyn, Crisanto points out that his Urgent Motion for
Partial Reconsideration[19] was still awaiting resolution by the
CA when she filed her Petition before this Court on October
24, 2002. The CA ruled on the Motion only on November 27,
2002.
The records show, however, that the Motion of Crisanto
was mailed only on September 12, 2002. Thus, on
September 17, 2002, when Joycelyn filed her Motion for
Extension of Time to file her Petition for Review, she might
have still been unaware that he had moved for a partial
reconsideration of the August 20, 2002 CA Decision.
Nevertheless, upon being notified of the filing of his Motion,
she should have manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for
Reconsideration, Joycelyns lapse may be excused in the
interest of resolving the substantive issues raised by the
parties.
First Issue:
Grave Abuse of Discretion
A further perusal of the records reveals that copies of

the Petition were sent to this Court and to the parties by
registered mail[12] at the Bian, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on the
face of the envelope[13] and attested to in the Affidavit of
Service[14] accompanying the Petition. Petitioner Joycelyn
explained that the filing and the service had been made by
registered mail due to the volume of delivery assignments
and the lack of a regular messenger.[15]
The Petition is, therefore, considered to have been filed
on October 24, 2002, its mailing date as shown by the post
office stamp on the envelope. The last sentence of Section 3
of Rule 13 of the Rules provides that the date of filing may
be shown either by the post office stamp on the
envelope or by the registry receipt. Proof of its filing, on the
other hand, is shown by the existence of the petition in the
record, pursuant to Section 12 of Rule 13.[16]
In GR No. 156254, Crisanto submits that the CA

gravely abused its discretion when it ordered the trial court
judge to consider, hear and resolve the motion to lift the
award of custodypendente lite without any proper motion by
Joycelyn and after the April 3, 2002 Order of the trial court
had become final and executory. The CA is also charged
with grave abuse of discretion for denying his Motion for
Partial Reconsideration without stating the reasons for the
denial, allegedly in contravention of Section 1 of Rule 36 of
the Rules of Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper

To begin with, grave abuse of discretion is committed
when an act is 1) done contrary to the Constitution, the law
or jurisprudence;[20] or 2) executed whimsically or arbitrarily
in a manner so patent and so gross as to amount to an
evasion of a positive duty, or to a virtual refusal to perform
the duty enjoined.[21] What constitutes grave abuse of
discretion is such capricious and arbitrary exercise of
judgment as that which is equivalent, in the eyes of the law,
to lack of jurisdiction.[22]
On the basis of these criteria, we hold that the CA did
not commit grave abuse of discretion.
Here, the declaration of the nullity of marriage is the

subject of the main case, in which the issue of
custody pendente lite is an incident. That custody and
support of common children may be ruled upon by the court
while the action is pending is provided in Article 49 of the
Family Code, which we quote :
Art. 49. During the pendency of the action[28] and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support
of the spouses and the custody and support of their common
children. x x x.
First, there can be no question that a court of

competent jurisdiction is vested with the authority to resolve
even unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues
raised in a particular pleading or when the unassigned
issues are inextricably linked or germane to those that have
been pleaded.[23] This truism applies with more force when
the relief granted has been specifically prayed for, as in this
case.
Clearly then, the requirement cited by Crisanto is

inapplicable. In any event, in its questioned Resolution, the
CA clearly stated that it could not find any cogent reason to
reconsider and set aside the assailed portion of its August
30, 2002 Decision.
Explicit in the Motion to Dismiss[24] filed by Joycelyn

before the RTC is her ancillary prayer for the court to lift and
set aside its April 3, 2002 Order awarding to Crisanto
custodypendente lite of their minor son. Indeed, the
necessary consequence of granting her Motion to Dismiss
would have been the setting aside of the Order awarding
Crisanto provisional custody of the child. Besides, even if
the Motion to Dismiss was denied -- as indeed it was -- the
trial court, in its discretion and if warranted, could still have
granted the ancillary prayer as an alternative relief.
Third, the award of temporary custody, as the term

implies, is provisional and subject to change as
circumstances may warrant. In this connection, there is no
need for a lengthy discussion of the alleged finality of the
April 3, 2002 RTC Order granting Crisanto temporary
custody of his son. For that matter, even the award of child
custody after a judgment on a marriage annulment is not
permanent; it may be reexamined and adjusted if and when
the parent who was given custody becomes unfit.[29]
Parenthetically, Joycelyns Motion need not have been

verified because of the provisional nature of the April 3, 2002
Order. Under Rule 38[25] of the Rules of Court, verification is
required only when relief is sought from a final and executory
Order. Accordingly, the court may set aside its own orders
even without a proper motion, whenever such action is
warranted by the Rules and to prevent a miscarriage of
justice.[26]
Denial of the Motion for
Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for
judges to state clearly and distinctly the reasons for their
dispositions) refers only to decisions and final orders on the
merits, not to those resolving incidental matters.[27] The
provision reads:
SECTION 1. Rendition of judgments and final orders.
A judgment or final order determining the merits of the
case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and filed with the clerk of
court. (Italics supplied)
The April 3, 2002 Order Not

Final and Executory
Second Issue:
Custody of a Minor Child
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 old.[30] On the one hand, the mother insists that, based
on Article 213 of the Family Code, her minor child cannot be
separated from her. On the other hand, the father argues
that she is unfit to take care of their son; hence, for
compelling reasons, he must be awarded custody of the
child.
Article 213 of the Family Code[31] provides:
ART. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated by the
court. The court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to
order otherwise.
This Court has held that when the parents are
separated, legally or otherwise, the foregoing provision
governs the custody of their child. [32] Article 213 takes its
bearing from Article 363 of the Civil Code, which reads:
Art. 363. In all questions on the care, custody, education
and property of children, the latters welfare shall be
paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling
reasons for such measure.(Italics supplied)
The general rule that children under seven years of age
shall not be separated from their mother finds its raison
detre in the basic need of minor children for their mothers
loving care.[33] In explaining the rationale for Article 363 of the
Civil Code, the Code Commission stressed thus:
The general rule is recommended in order to avoid a
tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by
the rule has to be for compelling reasons for the good of the
child: those cases must indeed be rare, if the mothers heart
is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the (relative)
divorce decree will ordinarily be sufficient punishment for
her. Moreover, her moral dereliction will not have any effect
upon the baby who is as yet unable to understand the
situation. (Report of the Code Commission, p. 12)
A similar provision is embodied in Article 8 of the Child
and Youth Welfare Code (Presidential Decree No. 603).
[34]
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 five
years of age shall be separated from his mother, unless the
court finds compelling reasons to do so. The provision is
reproduced in its entirety as follows:
Art. 17. Joint Parental Authority. The father and the
mother shall exercise jointly just and reasonable parental
authority and responsibility over their legitimate or adopted
children. In case of disagreement, the fathers decision shall
prevail unless there is a judicial order to the contrary.
In case of the absence or death of either parent, the present
or surviving parent shall continue to exercise parental
authority over such children, unless in case of the surviving
parents remarriage, the court for justifiable reasons,
appoints another person as guardian.
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. (Italics supplied)
The above mandates reverberate in Articles 211, 212

and 213 of the Family Code. It is unmistakable from the
language of these provisions that Article 211[35] was derived
from the first sentence of the aforequoted Article 17; Article
212,[36] from the second sentence; and Article 213,[37] save for
a few additions, from the third sentence. It should be noted
that the Family Code has reverted to the Civil Code provision
mandating that a child below seven years should not be
separated from the mother.[38]
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,[39] the Court held that
the use of shall in Article 363 of the Civil Code and the
observations made by the Code Commission underscore the
mandatory character of the word.[40] Holding in that case that
it was a mistake to deprive the mother of custody of her two
children, both then below the age of seven, the Court
stressed:
[Article 363] prohibits in no uncertain terms the separation of
a mother and her child below seven years, unless such a
separation is grounded upon compelling reasons as
determined by a court.[41]
In like manner, the word shall in Article 213 of the
Family Code and Section 6[42] of Rule 99 of the Rules of
Court has been held to connote a mandatory character.
[43]
Article 213 and Rule 99 similarly contemplate a situation
in which the parents of the minor are married to each other,
but are separated by virtue of either a decree of legal
separation or a de facto separation. [44] In the present case,
the parents are living separately as a matter of fact.
The Best Interest of the Child

a Primary Consideration
The Convention on the Rights of the Child 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.[45]
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.
[46]
Courts are mandated to take into account all relevant
circumstances that would have a 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. [47] 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
Tender-Age
Presumption
As pointed out earlier, there is express statutory
recognition that, as a general rule, a mother is to be
preferred in awarding custody of children under the age of
seven. The caveat in Article 213 of the Family Code cannot
be ignored, except when the court finds cause to order
otherwise.[48]
The so-called tender-age presumption under Article
213 of the Family Code may be overcome only
by compelling evidence of the mothers unfitness. The
mother has been declared unsuitable to have custody of her
children in one or more of the following instances: neglect,
abandonment,
unemployment,
immorality,
habitual
drunkenness, drug addiction, maltreatment of the child,
insanity or affliction with a communicable disease.[49]
Here, Crisanto cites immorality due to alleged lesbian
relations as the compelling reason to deprive Joycelyn of
custody. It has indeed been held that under certain
circumstances, the mothers immoral conduct may constitute
a compelling reason to deprive her of custody.[50]
But 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.[51] 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.[52]
To this effect did the Court rule in Unson III v. Navarro,
wherein the mother was openly living with her brother-inlaw, the childs uncle. Under that circumstance, the Court
deemed it in the nine-year-old childs best interest to free her
from the obviously unwholesome, not to say immoral
influence, that the situation in which the mother ha[d] placed
herself might create in [the childs] moral and social
outlook.[54]
[53]
In Espiritu v. CA,[55] the Court took into account

psychological and case study reports on the child, whose
feelings of insecurity and anxiety had been traced to strong
conflicts with the mother. To the psychologist the child
revealed, among other things, that the latter was disturbed
upon seeing her mother hugging and kissing a bad man
who lived in their house and worked for her father. The
Court held that the illicit or immoral activities of the mother
had already caused the child emotional disturbances,
personality conflicts, and exposure to conflicting moral

values x x x.
Based on the above jurisprudence, it is therefore not
enough for Crisanto to show merely that Joycelyn was a
lesbian. He must also demonstrate that she carried on her
purported relationship with a person of the same sex in the
presence of their son or under circumstances not conducive
to the childs proper moral development. Such a fact has not
been shown here. There is no evidence that the son was
exposed to the mothers alleged sexual proclivities or that his
proper moral and psychological development suffered as a
result.
Moreover, it is worthy to note that the trial court judge,
Helen Bautista-Ricafort, ruled in her May 17, 2002 Order that
she had found the reason stated by [Crisanto] not to be
compelling[56] as to suffice as a ground for separating the
child from his mother. The judge made this conclusion after
personally observing the two of them, both in the courtroom
and in her chambers on April 16, 2002, and after a chance to
talk to the boy and to observe him firsthand. This
assessment, based on her unique opportunity to witness the
childs behavior in the presence of each parent, should carry
more weight than a mere reliance on the records. All told, no
compelling reason has been adduced to wrench the child
from the mothers custody.
No Grant of Habeas Corpus
and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep
her minor son in her custody, the writ of habeas corpus and
the preliminary mandatory injunction prayed for by Crisanto
have no leg to stand on. A writ of habeas corpus may be
issued only when the rightful custody of any person is
withheld from the person entitled thereto,[57] a situation that
does not apply here.
On the other hand, the ancillary remedy of preliminary
mandatory injunction cannot be granted, because Crisantos
right to custody has not been proven to be clear and
unmistakable.[58] Unlike an ordinary preliminary injunction,
the writ of preliminary mandatory injunction is more
cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the
maintenance of the status quo.[59] Besides, such an injunction
would serve no purpose, now that the case has been
decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994
is GRANTED. The assailed Decision of the Court of Appeals
is hereby REVERSED and the May 17, 2002 Regional Trial
Court OrderREINSTATED. The Petition in GR No. 156254
is DISMISSED. Costs against Petitioner Crisanto Rafaelito
Gualberto V.
SO ORDERED.

SALIENTES v. ABANILLA
SO ORDERED. 4

SUPREME COURT
Manila
Petitioners moved for reconsideration which the court

denied.
THIRD DIVISION
G.R. No. 162734 August 29, 2006
MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO
B. SALIENTES, and ROSARIO C. SALIENTES,Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO
SABUNDAYO, JR., REGIONAL TRIAL COURT, BRANCH
203, MUNTINLUPA CITY, Respondents
DECISION
QUISUMBING, J.:
The instant petition assails the Decision 1dated November
10, 2003 of the Court of Appeals in CA-G.R. SP No. 75680,
which dismissed the petition for certiorari against the orders
of the Regional Trial Court in Special Proceedings No. 03004. Likewise assailed is the Court of Appeals
Resolution 2dated March 19, 2004 denying reconsideration.
The facts of the case are as follows:
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 his son.
Later, Loran S.D. Abanilla in his personal capacity and as the
representative of his son, filed a Petition for Habeas
Corpus and Custody, 3 docketed as Special Proceedings No.
03-004 before the Regional Trial Court of Muntinlupa City.
On January 23, 2003, the trial court issued the following
order:
Upon verified Petition for a Writ of Habeas Corpus by
Petitioners, the Respondents Marie Antonette Abigail C.
Salientes, Orlando 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, 2003 at 1:00 oclock in the afternoon and to
show cause why the said child should not be discharged
from restraint.
Let this Writ be served by the Sheriff or any authorized
representative of this Court, who is directed to immediately
make a return.
Consequently, petitioners filed a petition for certiorari with the

Court of Appeals, but the same was dismissed on November
10, 2003. The appellate court affirmed the February 24, 2003
Order of the trial court holding that its January 23, 2003
Order did not award the custody of the 2-year-old child to
any one but was simply the standard order issued for the
production of restrained persons. The appellate court held
that the trial court was still about to conduct a full inquiry, in a
summary proceeding, on the cause of the minors detention
and the matter of his custody. The Court of Appeals ruled
thus:
WHEREFORE, the petition is hereby DISMISSED for lack of
merit.
SO ORDERED. 5
Petitioners moved for reconsideration, which was denied on
March 19, 2004.
Hence, petitioners interposed this appeal by certiorari
anchored on the following grounds:
1. The Court of Appeals erred in not pronouncing the
respondent judge gravely abused his discretion, amounting
to lack or in excess of jurisdiction in issuing an order for the
petitioner-mother to first show cause why her own three-year
old child in her custody should not be discharged from a socalled "restraint" despite no evidence at all of restraint and
no evidence of compelling reasons of maternal unfitness to
deprive the petitioner-mother of her minor son of tender
years. The assailed orders, resolutions and decisions of the
lower court and the Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that the
respondent judge gravely abused his discretion in issuing a
writ of habeas corpus which clearly is not warranted
considering that there is no unlawful restraint by the mother
and considering further that the law presumes the fitness of
the mother, thereby negating any notion of such mother
illegally restraining or confining her very own son of tender
years. The petition is not even sufficient in substance to
warrant the writ. The assailed orders are clearly void.
3. Contrary to the Court of Appeals decision, the "Sombong
vs. CA" case supports rather than negates the position of the
petitioners.
4. Contrary to the Court of Appeals decision, summary
proceeding does violence to the tender-years-rule
5. The Court of Appeals failed to consider that the private
respondent failed to present prima facie proof of any
compelling reason of the unfitness of the petitioner-mother;

6. The Court of Appeals failed to see that the New Rules on
Custody SUFFICES AS REMEDY. 6
case, it is incumbent upon petitioners to show that the trial

court gravely abused its discretion in issuing the order.
Plainly put, the issue is: Did the Court of Appeals err when it
dismissed the petition for certiorari against the trial courts
orders dated January 23, 2003 and February 24, 2003?
Habeas corpus may be resorted to in cases where rightful

custody is withheld from a person entitled thereto. 9Under
Article 211 10 of the Family Code, respondent Loran and
petitioner Marie Antonette have joint parental authority over
their son and consequently joint custody. Further, although
the couple is separated de facto, the issue of custody has
yet to be adjudicated by the court. In the 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. 11 Hence, the
remedy of habeas corpus is available to him.
Petitioners contend that the order is contrary to Article

213 7 of the Family Code, which provides that no child under
seven years of age shall be separated from the mother
unless the court finds compelling reasons to order otherwise.
They maintain that herein respondent Loran had the burden
of showing any compelling reason but failed to present even
a prima facie proof thereof.
Petitioners posit that even assuming that there were
compelling reasons, the proper remedy for private
respondent was simply an action for custody, but not habeas
corpus. Petitioners assert that habeas corpus is unavailable
against the mother who, under the law, has the right of
custody of the minor. They insist there was no illegal or
involuntary restraint of the minor by his own mother. There
was no need for the mother to show cause and explain the
custody of her very own child.
Private respondent counters that petitioners argument based
on Article 213 of the Family Code applies only to the second
part of his petition regarding the custody of his son. It does
not address the first part, which pertains to his right as the
father to see his son. He asserts that the writ of habeas
corpus is available against any person who restrains the
minors right to see his father and vice versa. He avers that
the instant petition is merely filed for delay, for had
petitioners really intended to bring the child before the court
in accordance with the new rules on custody of minors, they
would have done so on the dates specified in the January
23, 2003 and the February 24, 2003 orders of the trial court.
Private respondent maintains that, under the law, he and
petitioner Marie Antonette have shared custody and parental
authority over their son. He alleges that at times when
petitioner Marie Antonette is out of the country as required of
her job as an international flight stewardess, he, the father,
should have custody of their son and not the maternal
grandparents.
As correctly pointed out by the Court of Appeals, 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 1 8 of the Rules of Court, an
interlocutory order is not appealable but the aggrieved party
may file an 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
In a petition for habeas corpus, the childs welfare is the

supreme consideration. The Child and Youth Welfare
Code12 unequivocally provides that in all questions regarding
the care and custody, among others, of the child, his welfare
shall be the paramount consideration. 13
Again, it bears stressing that the order 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
private respondent is prevented from seeing his child. This is
in line with the directive in Section 9 14 of A.M. 03-04-04SC 15 that within fifteen days after the filing of the answer or
the expiration of the period to file answer, the court shall
issue an order requiring the respondent (herein petitioners)
to present the minor before the court. This was exactly what
the court did.
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.
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.
WHEREFORE, the petition is DENIED. The Decisiondated
November 10, 2003 and the Resolutiondated March 19,
2004 of the Court of Appeals in CA-G.R. SP No. 75680
are AFFIRMED. Costs against petitioners.
SO ORDERED.
GAMBOA-HIRSCH v. COURT OF APPEALS
SUPREME COURT
Manila

SECOND DIVISION
AGNES GAMBOA-HIRSCH
Petitioner,
G.R. No. 174485
- versus HON. COURT OF APPEALS

Promulgated:
and FRANKLIN HARVEY HIRSCH,
Respondents.
July 11, 2007
x------------------------------------------------------------------------------x
implementation of the assailed rulings of the CA based on

the following grounds:
(A)
The Court of Appeals seriously erred and acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction when it ruled upon, granted, and decided the
matter of custody x x x during the May 26, 2006 hearing
conducted on the petition for writ of habeas corpus in
relation to and with custody of a minor under A.M. No. 03-0304-SC, C.A.-GR SP. No. 94329, as no reception of evidence
to support said decision was had thereon, and the honorable
court merely based its decision on mere conjectures and
presumptions.
R E S O LU T I O N
(B)
VELASCO, JR., J.:
This is a petition for certiorari [1] under Rule 65 which
seeks to set aside the June 8, 2006 Decision[2] of the Court
of Appeals (CA) in CA-G.R. SP No. 94329, which granted
private respondent Franklin Harvey Hirsch (Franklin) joint
custody with petitioner Agnes Gamboa-Hirsch (Agnes) of
their minor daughter Simone Noelle Hirsch (Simone); and
the August 3, 2006 CA Resolution[3] denying petitioners
Motion for Reconsideration for lack of merit. Petitioner also
prays for the issuance of a temporary restraining
order/injunction preventing the execution and implementation
of the assailed June 8, 2006 CA Decision.

jurisdiction when it denied the motion for reconsideration
filed by [petitioner Agnes] and only made addendums
thereon appertaining to the custody aspect in its Decision
that the same is deemed necessary for the protection of the
interest of the child and a mere temporary arrangement
while the case involving the herein parties are pending
before the Regional Trial Court x x x quite contrary to its
pronouncements during the May 26, 2006 hearing when the
matter of custody was insisted upon by [respondent
Franklin].
(C)
Franklin and Agnes were married on December 23,

2000 in the City of Bacolod, and established their conjugal
dwelling
in
Diniwid, Boracay Island,
Malay,
Aklan.
OnDecember 21, 2002, a child was born to them and was
named Simone. In 2005, the couple started to have marital
problems as Agnes wanted to stay in Makati City,
whileFranklin insisted that they stay in Boracay Island.
On March 23, 2006, Agnes came to their conjugal home in
Boracay, and asked for money and for Franklins permission
for her to bring their daughter to Makati City for a brief
vacation. Franklin readily agreed, but soon thereafter
discovered that neither Agnes nor their daughter Simone
would be coming back to Boracay.
Franklin then filed a petition for habeas corpus before
the CA for Agnes to produce Simone in court. On May 19,
2006, the CA issued a Resolution which ordered that a writ
of habeas corpus be issued ordering that Simone be brought
before said court on May 26, 2006. After a series of hearings
and presentation of evidence, the CA, on June 8, 2006,
promulgated the assailed Decision granting Franklin joint
custody with Agnes of their minor child. Agnes filed a Motion
for Reconsideration of this Decision, which was denied in the
CAs August 3, 2006 Resolution for lack of merit.
Petitioner now comes before this Court praying that
we set aside the June 8, 2006 Decision and August 3,
2006 Resolution of the CA, and that we issue a temporary
restraining order/injunction on the execution and

jurisdiction when it granted joint custody in utter disregard of
the provisions of the Family Code, as to minors seven (7)
years of age and below, in relation to the jurisprudence and
pronouncements laid down by the Honorable Supreme Court
on the matter of the said provision.[4]
Acting on the petition, this Court issued its October
2, 2006 Resolution denying petitioners prayer for the
issuance of a temporary restraining order. Petitioner then
filed a Motion for Reconsideration of this Resolution, and
on April 11, 2007, this Court granted petitioners Motion for
Reconsideration, issued a temporary restraining order, and
awarded the sole custody of the minor, Simone, to petitioner.
This petition has merit.
The CA committed grave abuse of discretion when it
granted joint custody of the minor child to both parents.
The Convention on the Rights of the Child provides
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 (emphasis supplied).[5] The Child
and Youth Welfare Code, in the same way, unequivocally

provides that in all questions regarding the care and custody,
among others, of the child, his/her welfare shall be the
paramount consideration.[6]
The
so-called tender-age
presumption under
Article 213 of the Family Code may be overcome only
by compelling evidence of the mothers unfitness. The
mother is declared unsuitable to have custody of her children
in one or more of the following instances: neglect,
abandonment,
unemployment,
immorality,
habitual
drunkenness, drug addiction, maltreatment of the child,
insanity, or affliction with a communicable disease. [7] Here,
the mother was not shown to be unsuitable or grossly
incapable of caring for her minor child. All told, no compelling
reason has been adduced to wrench the child from the
mothers custody.
WHEREFORE, premises considered, the petition
is GIVEN DUE COURSE. The June 8, 2006 Decision
and August 3, 2006 Resolution of the CA are hereby SET
ASIDE. Sole custody over Simone Noelle Hirsch
is hereby AWARDED to the mother, petitioner Agnes
Gamboa-Hirsch.
SO ORDERED.
For review1 is a dismissal2 of a suit to enforce a post-foreign

divorce child custody agreement for lack of jurisdiction.
The Facts
Petitioner Herald Dacasin (petitioner), American, and
respondent Sharon Del Mundo Dacasin (respondent),
Filipino, were married in Manila in April 1994. They have one
daughter, Stephanie, born on 21 September 1995. In June
1999, respondent sought and obtained from the Circuit
Court, 19th Judicial Circuit, Lake County, Illinois (Illinois
court) a divorce decree against petitioner.3 In its ruling, the
Illinois court dissolved the marriage of petitioner and
respondent, awarded to respondent sole custody of
Stephanie and retained jurisdiction over the case for
enforcement purposes.
On 28 January 2002, petitioner and respondent executed in
Manila a contract (Agreement4 ) for the joint custody of
Stephanie. The parties chose Philippine courts as exclusive
forum to adjudicate disputes arising from the Agreement.
Respondent undertook to obtain from the Illinois court an
order "relinquishing" jurisdiction to Philippine courts.
In 2004, petitioner sued respondent in the Regional Trial
Court of Makati City, Branch 60 (trial court) to enforce the
Agreement. Petitioner alleged that in violation of the
Agreement, respondent exercised sole custody over
Stephanie.
Respondent sought the dismissal of the complaint for,
among others, lack of jurisdiction because of the Illinois
courts retention of jurisdiction to enforce the divorce decree.
The Ruling of the Trial Court
DACASIN v. DACASIN
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 168785
February 5, 2010
HERALD BLACK DACASIN, Petitioner,

vs.
SHARON DEL MUNDO DACASIN, Respondent.
DECISION
CARPIO, J.:
The Case
In its Order dated 1 March 2005, the trial court sustained

respondents motion and dismissed the case for lack of
jurisdiction. The trial court held that: (1) it is precluded from
taking cognizance over the suit considering the Illinois courts
retention of jurisdiction to enforce its divorce decree,
including its order awarding sole custody of Stephanie to
respondent; (2) the divorce decree is binding on petitioner
following the "nationality rule" prevailing in this
jurisdiction;5 and (3) the Agreement is void for contravening
Article 2035, paragraph 5 of the Civil Code6 prohibiting
compromise agreements on jurisdiction.7
Petitioner sought reconsideration, raising the new argument
that the divorce decree obtained by respondent is void. Thus,
the divorce decree is no bar to the trial courts exercise of
jurisdiction over the case.
In its Order dated 23 June 2005, the trial court denied
reconsideration, holding that unlike in the case of
respondent, the divorce decree is binding on petitioner under
the laws of his nationality.
Hence, this petition.

Petitioner submits the following alternative theories for the
validity of the Agreement to justify its enforcement by the trial
court: (1) the Agreement novated the valid divorce decree,
modifying the terms of child custody from sole (maternal) to
joint;8 or (2) the Agreement is independent of the divorce
decree obtained by respondent.
The Issue
The question is whether the trial court has jurisdiction to take
cognizance of petitioners suit and enforce the Agreement on
the joint custody of the parties child.
The Ruling of the Court
The trial court has jurisdiction to entertain petitioners suit but
not to enforce the Agreement which is void. However, factual
and equity considerations militate against the dismissal of
petitioners suit and call for the remand of the case to settle
the question of Stephanies custody.
Regional
Trial
Courts
to Enforce Contracts
Vested
With
Jurisdiction
Subject matter jurisdiction is conferred by law. At the time

petitioner filed his suit in the trial court, statutory law vests on
Regional Trial Courts exclusive original jurisdiction over civil
actions incapable of pecuniary estimation.9 An action for
specific performance, such as petitioners suit to enforce the
Agreement on joint child custody, belongs to this species of
actions.10 Thus, jurisdiction-wise, petitioner went to the right
court.
Indeed, the trial courts refusal to entertain petitioners suit
was grounded not on its lack of power to do so but on its
thinking that the Illinois courts divorce decree stripped it of
jurisdiction. This conclusion is unfounded. What the Illinois
court retained was "jurisdiction x x x for the purpose of
enforcing all and sundry the various provisions of [its]
Judgment for Dissolution."11 Petitioners suit seeks the
enforcement not of the "various provisions" of the divorce
decree but of the post-divorce Agreement on joint child
custody. Thus, the action lies beyond the zone of the Illinois
courts so-called "retained jurisdiction."
Petitioners Suit Lacks Cause of Action
The foregoing notwithstanding, the trial court cannot enforce
the Agreement which is contrary to law.
In this jurisdiction, parties to a 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.12 Otherwise, the contract is denied
legal existence, deemed "inexistent and void from the
beginning."13 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.14
At the time the parties executed the Agreement on 28

January 2002, two facts are undisputed: (1) Stephanie was
under seven years old (having been born on 21 September
1995); and (2) 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 15 (under the second
paragraph of Article 213 of the Family Code) is also
undisputed: "no child under seven years of age shall be
separated from the mother x x x."16 (This statutory awarding
of
sole
parental
custody17 to
the
mother
is
18
mandatory, grounded
on
sound
policy
consideration,19subject only to a narrow exception not
alleged to obtain here.20 ) Clearly then, the Agreements
object to establish a post-divorce joint custody regime
between respondent and petitioner over their child under
seven years old contravenes Philippine law.
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.21 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. Thus, the law suspends the joint custody
regime for (1) children under seven of (2) separated or
divorced spouses. Simply put, for a child within this age
bracket (and for commonsensical reasons), 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 213.22
It will not do to argue that the second paragraph of Article
213 of the Family Code applies only to judicial custodial
agreements based on its text that "No child under seven
years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise." To limit
this provisions enforceability to court sanctioned agreements
while placing private agreements beyond its reach is to
sanction a double standard in custody regulation of children
under seven years old of separated parents. This effectively
empowers separated parents, by the simple expedient of
avoiding the courts, to subvert a legislative policy vesting to
the separated mother sole custody of her children under
seven years of age "to avoid a tragedy where a mother has
seen her baby torn away from her." 23 This ignores the
legislative basis that "[n]o man can sound the deep sorrows
of a mother who is deprived of her child of tender age."24
It could very well be that Article 213s bias favoring one
separated parent (mother) over the other (father)

encourages paternal neglect, presumes incapacity for joint
parental custody, robs the parents of custodial options, or
hijacks
decision-making
between
the
separated
parents.25 However, these are objections which question the
laws wisdom not its validity or uniform enforceability. The
forum to air and remedy these grievances is the legislature,
not this Court. At any rate, the rules seeming harshness or
undesirability is tempered by ancillary agreements the
separated parents may wish to enter such as granting the
father visitation and other privileges. These arrangements
are not inconsistent with the regime of sole maternal custody
under the second paragraph of Article 213 which merely
grants to the mother final authority on the care and custody
of the minor under seven years of age, in case of
disagreements.1avvphi1
Further, the imposed custodial regime under the second
paragraph of Article 213 is limited in duration, lasting only
until the childs seventh year. From 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. Lastly, even
supposing that petitioner and respondent are not barred from
entering into the Agreement for the joint custody of
Stephanie, respondent repudiated the Agreement by
asserting sole custody over Stephanie. Respondents act
effectively brought the parties back to ambit of the default
custodial regime in the second paragraph of Article 213 of
the Family Code vesting on respondent sole custody of
Stephanie.
Nor can petitioner rely on the divorce decrees alleged
invalidity - not because the Illinois court lacked jurisdiction or
that the divorce decree violated Illinois law, but because the
divorce was obtained by his Filipino spouse 26 - to support the
Agreements enforceability. The argument that foreigners in
this jurisdiction are not bound by foreign divorce decrees is
hardly novel. Van Dorn v. Romillo27 settled the matter by
holding that an alien spouse of a Filipino is bound by a
divorce decree obtained abroad.28 There, we dismissed the
alien divorcees Philippine suit for accounting of alleged postdivorce conjugal property and rejected his submission that
the foreign divorce (obtained by the Filipino spouse) is not
valid in this jurisdiction in this wise:
There can be no question as to the validity of that Nevada
divorce in any of the States of the United States. The decree
is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public
policy.
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid
according to their national law. In this case, the divorce in

Nevada released private respondent from the marriage from
the standards of American law, under which divorce
dissolves the marriage.
xxxx
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing
to sue in the case below as petitioners husband entitled to
exercise control over conjugal assets. As he is bound by the
Decision of his own countrys Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before
said Court from asserting his right over the alleged conjugal
property. (Emphasis supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera 29 to dismiss
criminal complaints for adultery filed by the alien divorcee
(who obtained the foreign divorce decree) against his former
Filipino spouse because he no longer qualified as "offended
spouse" entitled to file the complaints under Philippine
procedural rules. Thus, it should be clear by now that a
foreign divorce decree carries as much validity against the
alien divorcee in this jurisdiction as it does in the jurisdiction
of the aliens nationality, irrespective of who obtained the
divorce.
The Facts of the Case and Nature of Proceeding
Justify Remand
Instead of ordering the dismissal of petitioners suit, the
logical end to its lack of cause of action, we remand the case
for the trial court to settle the question of Stephanies
custody. Stephanie is now nearly 15 years old, thus
removing the case outside of the ambit of the mandatory
maternal custody regime under Article 213 and bringing it
within coverage of the default standard on child custody
proceedings the best interest of the child. 30 As the question
of custody is already before the trial court and the childs
parents, by executing the Agreement, initially showed
inclination to share custody, it is in the interest of swift and
efficient rendition of justice to allow the parties to take
advantage of the courts jurisdiction, submit evidence on the
custodial arrangement best serving Stephanies interest, and
let the trial court render judgment. This disposition is
consistent with the settled doctrine that in child custody
proceedings, equity may be invoked to serve the childs best
interest.31
WHEREFORE, we REVERSE the Orders dated 1 March
2005 and 23 June 2005 of the Regional Trial Court of Makati
City, Branch 60. The case is REMANDED for further
proceedings consistent with this ruling.
SO ORDERED.
NERI v. HEIRS OF UY

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 194366
October 10, 2012
NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR,

VISMINDA D. NERI-CHAMBERS, ROSA D. NERI-MILLAN,
DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS
AND VICTORIA D. ILLUT-PIALA, Petitioners,
vs.
HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM
UY, Respondents.
DECISION
PERLAS-BERNABE, J.:
In this Petition for Review on Certiorari1 under Rule 45 of the
Rules of Court, petitioners Napoleon D. Neri (Napoleon),
Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers
(Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri
(Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria
D. Illut-Piala (Victoria) seek to reverse and set aside the April
27, 2010 Decision2 and October 18, 2010 Resolution3 of the
Court of Appeals (CA) in CA-G.R. CV No. 01031-MIN which
annulled the October 25, 2004 Decision4 of the Regional Trial
Court (RTC) of Panabo City, Davao del Norte and instead,
entered a new one dismissing petitioners complaint for
annulment of sale, damages and attorneys feesagainst
herein respondents heirs of spouses Hadji Yusop Uy and
Julpha Ibrahim Uy (heirs of Uy).
the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy

(spouses Uy)for a consideration of P 80,000.00.
On June 11, 1996, the children of Enrique filed a complaint
for annulment of saleof the said homestead properties
against spouses Uy (later substituted by their heirs)before
the RTC, docketed as Civil Case No.96-28, assailing the
validity of the sale for having been sold within the prohibited
period. Thecomplaint was later amended to include Eutropia
and Victoriaas additional plaintiffs for having been excluded
and deprived of their legitimes as childrenof Anunciacion
from her first marriage.
In their amended answer with counterclaim, the heirs of Uy
countered that the sale took place beyond the 5-year
prohibitory period from the issuance of the homestead
patents. They also denied knowledge of Eutropia and
Victorias exclusionfrom the extrajudicial settlement and sale
of the subject properties, and interposed further the defenses
of prescription and laches.
The RTC Ruling
On October 25, 2004, the RTC rendered a decision ordering,
among others, the annulment of the Extra-Judicial
Settlement of the Estate with Absolute Deed of Sale. It ruled
that while the sale occurred beyond the 5-year prohibitory
period, the sale is still void because Eutropia and Victoria
were deprived of their hereditary rights and that Enrique had
no judicial authority to sell the shares of his minor children,
Rosa and Douglas.
Consequently, it rejected the defenses of laches and
prescription raised by spouses Uy, who claimed possession
of the subject properties for 17 years, holding that coownership rights are imprescriptible.
The Facts
During her lifetime, Anunciacion Neri (Anunciacion) had
seven children, two (2) from her first marriage with Gonzalo
Illut (Gonzalo), namely: Eutropia and Victoria, and five (5)
from her second marriage with Enrique Neri (Enrique),
namely: Napoleon, Alicia, Visminda, Douglas and Rosa.
Throughout the marriage of spouses Enrique and
Anunciacion, they acquired several homestead properties
with a total area of 296,555 square meters located in Samal,
Davao del Norte, embraced by Original Certificate of Title
(OCT) Nos. (P-7998) P-21285, (P-14608) P-51536and P20551 (P-8348)7issued on February 15, 1957, August 27,
1962 and July 7, 1967, respectively.
On September 21, 1977, Anunciacion died intestate. Her
husband, Enrique, in his personal capacity and as natural
guardian of his minor children Rosa and Douglas, together
with Napoleon, Alicia, and Vismindaexecuted an ExtraJudicial Settlement of the Estate with Absolute Deed of
Sale8 on July 7, 1979, adjudicating among themselves the
said homestead properties, and thereafter, conveying themto
The CA Ruling
On appeal, the CAreversed and set aside the ruling of the
RTC in its April 27, 2010 Decision and dismissed the
complaint of the petitioners. It held that, while Eutropia and
Victoria had no knowledge of the extrajudicial settlement and
sale of the subject properties and as such, were not bound
by it, the CA found it unconscionable to permit the annulment
of the sale considering spouses Uys possession thereof for
17 years, and thatEutropia and Victoriabelatedlyfiled their
actionin 1997, ormore than two years fromknowledge of their
exclusion as heirs in 1994 when their stepfather died. It,
however, did not preclude the excluded heirs from recovering
their legitimes from their co-heirs.
Similarly, the CA declared the extrajudicial settlement and
the subsequent saleas valid and binding with respect to
Enrique and hischildren, holding that as co-owners, they
have the right to dispose of their respective shares as they
consider necessary or fit.While recognizing Rosa and
Douglas to be minors at that time, they were deemed to have

ratified the sale whenthey failed to question it upon reaching
the age of majority.Italso found laches to have set in because
of their inaction for a long period of time.
The Issues
In this petition, petitioners imputeto the CA the following
errors:
I. WHEN IT UPHELDTHE VALIDITY OF THE "EXTRA
JUDICIAL SETTLEMENT OF THE ESTATE WITH
ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF
EUTROPIA AND VICTORIA WERE CONCERNED,
THEREBY DEPRIVING THEM OF THEIR INHERITANCE;
II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA
JUDICIAL SETTLEMENT OF THE ESTATE WITH
ABSOLUTE DEED OF SALE" WITH RESPECT TO THE
SHARESOF
ROSA
AND
DOUGLAS,
THEREBY
DEPRIVING THEM OF THEIR INHERITANCE; and
III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION
HAS SET IN.
The petitionis meritorious.
It bears to stress that all the petitioners herein are
indisputably legitimate children of Anunciacion from her first
and second marriages with Gonzalo and Enrique,
respectively, and consequently, are entitled to inherit from
her in equal shares, pursuant to Articles 979 and 980 of the
Civil Code which read:
ART. 979. Legitimate children and their descendants
succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come
from different marriages.
Visminda
1/16
Rosa
1/16
Douglas
1/16
Hence, in the execution of the Extra-Judicial Settlement of

the Estate with Absolute Deed of Sale in favor of spouses
Uy, all the heirs of Anunciacionshould have participated.
Considering that Eutropia and Victoria were admittedly
excluded and that then minors Rosa and Douglas were not
properly represented therein, the settlement was not valid
and binding uponthem and consequently, a total nullity.
Section 1, Rule 74 of the Rules of Court provides:
SECTION 1. Extrajudicial settlement by agreement between
heirs. x x x
The fact of the extrajudicial settlement or administration shall
be published in a newspaper of general circulation in the
manner provided in the next succeeding section; but no
extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof.
(Underscoring added)
The effect of excluding the heirs in the settlement of estate
was further elucidated in Segura v. Segura,10 thus:
It is clear that Section 1 of Rule 74 does not apply to the
partition in question which was null and void as far as the
plaintiffs were concerned. The rule covers only valid
partitions. The partition in the present case was invalid
because it excluded six of the nine heirs who were entitled to
equal shares in the partitioned property. Under the rule "no
extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof." As
the partition was a total nullity and did not affect the excluded
heirs, it was not correct for the trial court to hold that their
right to challenge the partition had prescribed after two years
from its execution
xxx
ART. 980. The children of the deceased shall always inherit
from him in their own right, dividing the inheritance in equal
shares.
As such, upon the death of Anunciacion on September 21,
1977, her children and Enrique acquired their respective
inheritances,9 entitling them to their pro indiviso shares in her
whole estate, as follows:
Enrique
9/16 (1/2 of the conjugal assets + 1/16)
Eutropia
1/16
Victoria
1/16
Napoleon
1/16
Alicia
1/16
However, while the settlement of the estate is null and void,

the subsequent sale of the subject propertiesmade by
Enrique and his children, Napoleon, Alicia and Visminda, in
favor of the respondents isvalid but only with respect to their
proportionate shares therein.It cannot be denied that these
heirs have acquired their respective shares in the properties
of Anunciacion from the moment of her death 11and that, as
owners thereof, they can very well sell their undivided share
in the estate.12
With respect to Rosa and Douglas who were minors at the
time of the execution of the settlement and sale, their natural
guardian and father, Enrique, represented them in the
transaction. However, on the basis of the laws prevailing at
that time, Enrique was merely clothed with powers of
administration and bereft of any authority to dispose of their
2/16 shares in the estate of their mother, Anunciacion.

Articles 320 and 326 of the Civil Code, the laws in force at
the time of the execution of the settlement and sale, provide:
ART. 320. The father, or in his absence the mother, is the
legal administrator of the property pertaining to the child
under parental authority. If the property is worth more than
two thousand pesos, the father or mother shall give a bond
subject to the approval of the Court of First Instance.
ART. 326. When the property of the child is worth more than
two thousand pesos, the father or mother shall be
considered a guardian of the childs property, subject to the
duties and obligations of guardians under the Rules of Court.
Corollarily, Section 7, Rule 93 of the Rules of Court also
provides:
SEC. 7. Parents as Guardians. When the property of the
child under parental authority is worth two thousand pesos or
less, the father or the mother, without the necessity of court
appointment, shall be his legal guardian. When the property
of the child is worth more than two thousand pesos, the
father or the mother shall be considered guardian of the
childs property, with the duties and obligations of guardians
under these Rules, and shall file the petition required by
Section 2 hereof. For good reasons, the court may, however,
appoint another suitable persons.
Administration includes all acts for the preservation of the
property and the receipt of fruits according to the natural
purpose of the thing. Any act of disposition or alienation, or
any reduction in the substance of the patrimony of child,
exceeds the limits of administration.13 Thus, a father or
mother, as the natural guardian of the minor under parental
authority, does not have the power to dispose or encumber
the property of the latter. Such power is granted by law only
to a judicial guardian of the wards property and even then
only with courts prior approval secured in accordance with
the proceedings set forth by the Rules of Court.14
Consequently, the disputed sale entered into by Enrique in
behalf of his minor children without the proper judicial
authority, unless ratified by them upon reaching the age of
majority,15 is unenforceable in accordance with Articles 1317
and 1403(1) of the Civil Code which provide:
ART. 1317. No one may contract in the name of another
without being authorized by the latter or unless he has by
law a right to represent him.
A contract entered into in the name of another by one who
has no authority or legal representation, or who has acted
beyond his powers, shall be unenforceable, unless it is
ratified, expressly or impliedly, by the person on whose
behalf it has been executed, before it is revoked by the other
contracting party.
ART. 1403. The following contracts are unenforceable,
unless they are ratified:
(1) Those entered into the name of another person by one

who has been given no authority or legal representation, or
who has acted beyond his powers;
xxx
Ratification means that one under no disability voluntarily
adopts and gives sanction to some unauthorized act or
defective proceeding, which without his sanction would not
be binding on him. It is this voluntary choice, knowingly
made, which amounts to a ratification of what was
theretofore unauthorized, and becomes the authorized act of
the party so making the ratification. 16 Once ratified, expressly
or impliedly such as when the person knowingly received
benefits from it, the contract is cleansed from all its defects
from the moment it was constituted,17 as it has a retroactive
effect.
Records, however, show that Rosa had ratified the
extrajudicial settlement of the estate with absolute deed of
sale. In Napoleon and Rosas Manifestation18 before the RTC
dated July 11, 1997,they stated:
"Concerning the sale of our parcel of land executed by our
father, Enrique Neri concurred in and conformed to by us
and our other two sisters and brother (the other plaintiffs), in
favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on
July 7, 1979, we both confirmed that the same was voluntary
and freely made by all of us and therefore the sale was
absolutely valid and enforceable as far as we all plaintiffs in
this case are concerned;" (Underscoring supplied)
In their June 30, 1997 Joint-Affidavit,19 Napoleon and Rosa
also alleged:
"That we are surprised that our names are included in this
case since we do not have any intention to file a case
against Hadji Yusop Uy and Julpha Ibrahim Uy and their
family and we respect and acknowledge the validity of the
Extra-Judicial Settlement of the Estate with Absolute Deed of
Sale dated July 7, 1979;" (Underscoring supplied)
Clearly, the foregoing statements constitutedratification of the
settlement of the estate and the subsequent sale, thus,
purging all the defects existing at the time of its execution
and legitimizing the conveyance of Rosas 1/16 share in the
estate of Anunciacion to spouses Uy. The same, however, is
not true with respect to Douglas for lack of evidence showing
ratification.
Considering, thus, that the extrajudicial settlement with sale
is invalid and therefore, not binding on Eutropia, Victoria and
Douglas, only the shares ofEnrique, Napoleon, Alicia,
Visminda and Rosa in the homestead properties have
effectivelybeen disposed in favor of spouses Uy. "A person
can only sell what he owns, or is authorized to sell and the
buyer can as a consequence acquire no more than what the
sellercan legally transfer."20 On this score, Article 493 of the
Civil Codeis relevant, which provides:

Each co-owner shall have the full ownership of his part and
of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights
are involved. But the effect of the alienation or the mortgage,
with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the
termination of the co-ownership.
Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers

and Rosa D. Neri-Millan VALID;
Consequently, spouses Uy or their substituted heirs became

pro indiviso co-owners of the homestead properties with
Eutropia, Victoria and Douglas, who retained title to their
respective 1/16 shares. They were deemed to be holding the
3/16 shares of Eutropia, Victoria and Douglas under an
implied constructive trust for the latters benefit, conformably
with Article 1456 of the Civil Code which states:"if property is
acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for
the benefit of the person from whom the property comes." As
such, it is only fair, just and equitable that the amount paid
for their shares equivalent to P 5,000.0021 each or a total
of P 15,000.00 be returned to spouses Uy with legal interest.
4. Ordering the estate of the late Enrique Neri, as well as

Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. NeriChambers and Rosa D. Neri-Millan to return to the
respondents jointly and solidarily the amount paid
corresponding to the 3/16 shares of Eutropia, Victoria and
Douglas in the total amount of P 15,000.00, with legal
interest at 6% per annum computed from the time of
payment until finality of this decision and 12% per annum
thereafter until fully paid.
3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala

and Douglas D. Neri as the LAWFUL OWNERSof the 3/16
portions of the subject homestead properties, covered by
Original Certificate of Title Nos. (P-7998) P-2128, (P-14608)
P-5153 and P-20551 (P-8348); and
SO ORDERED.
On the issue of prescription, the Court agrees with

petitioners that the present action has not prescribed in so
far as it seeks to annul the extrajudicial settlement of the
estate. Contrary to the ruling of the CA, the prescriptive
period of 2 years provided in Section 1 Rule 74 of the Rules
of
Court reckoned from the execution of the extrajudicial
settlement finds no application to petitioners Eutropia,
Victoria and Douglas, who were deprived of their lawful
participation in the subject estate. Besides, an "action or
defense for the declaration of the inexistence of a contract
does not prescribe" in accordance with Article 1410 of the
Civil Code.
SCHOOL OF HOLYSPIRIT OF QUEZON CITY v. TAGUIAM
However, the action to recover property held in trust

prescribes after 10 years from the time the cause of action
accrues,22 which is from the time of actual notice in case of
unregistered deed.23 In this case, Eutropia, Victoria and
Douglas claimed to have knowledge of the extrajudicial
settlement with sale after the death of their father, Enrique, in
1994 which spouses Uy failed to refute. Hence, the
complaint filed in 1997 was well within the prescriptive period
of 10 years.
G.R. No. 165565
WHEREFORE, the instant petition is GRANTED. The April

27, 2010 Decision and October 18, 2010 Resolution of the
Court of Appeals are REVERSED and SET ASIDE and a
new judgment is entered:
SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY and/or

SR. CRISPINA A. TOLENTINO, S.Sp.S., Petitioners,
vs.
CORAZON P. TAGUIAM, Respondent.
1. Declaring the Extra-Judicial Settlement of the Estate of

Anunciacion Neri NULL and VOID;
DECISION
2. Declaring the Absolute Deed of Sale in favor of the late

spouses Hadji Yusop Uy and Julpha Ibrahim Uy as regards
the 13/16 total shares of the late Enrique Neri, Napoleon

SUPREME COURT
Manila
SECOND DIVISION
July 14, 2008
QUISUMBING, J.:
This petition assails the Decision1 dated June 7, 2004 of the
Court of Appeals in CA-G.R. SP No. 81480, which reversed

the Resolution2 dated September 20, 2002 of the National
Labor Relations Commission (NLRC) in NLRC NCR CA No.
031627-02. The NLRC had affirmed the Decision3 dated
March 26, 2002 of the Labor Arbiter dismissing respondents
complaint for illegal dismissal. This petition likewise assails
the Resolution4 dated September 30, 2004 of the Court of
Appeals denying petitioners motion for reconsideration.
The antecedent facts are as follows:
Respondent Corazon P. Taguiam was the Class Adviser of
Grade 5-Esmeralda of the petitioner, School of the Holy
Spirit of Quezon City. On March 10, 2000, the class
president, wrote a letter5 to the grade school principal
requesting permission to hold a year-end celebration at the
school grounds. The principal authorized the activity and
allowed the pupils to use the swimming pool. In this
connection, respondent distributed the parents/guardians
permit forms to the pupils.
Respondent admitted that Chiara Mae Federicos permit
form6 was unsigned. Nevertheless, she concluded that
Chiara Mae was allowed by her mother to join the activity
since her mother personally brought her to the school with
her packed lunch and swimsuit.
Before the activity started, respondent warned the pupils
who did not know how to swim to avoid the deeper area.
However, while the pupils were swimming, two of them
sneaked out. Respondent went after them to verify where
they were going.
Unfortunately, while respondent was away, Chiara Mae
drowned. When respondent returned, the maintenance man
was already administering cardiopulmonary resuscitation on
Chiara Mae. She was still alive when respondent rushed her
to the General Malvar Hospital where she was pronounced
dead on arrival.
On May 23, 2000, petitioners issued a Notice of
Administrative Charge7 to respondent for alleged gross
negligence and required her to submit her written
explanation. Thereafter, petitioners conducted a clarificatory
hearing which respondent attended. Respondent also
submitted her Affidavit of Explanation.8
On July 31, 2000, petitioners dismissed respondent on the
ground of gross negligence resulting to loss of trust and
confidence.9 Meanwhile, Chiara Maes parents filed a P7
Million damage suit against petitioners and respondent,
among others. They also filed against respondent a criminal
complaint for reckless imprudence resulting in homicide.
On July 25, 2001, respondent in turn filed a
complaint10 against the school and/or Sr. Crispina Tolentino
for illegal dismissal, with a prayer for reinstatement with full
backwages and other money claims, damages and
attorneys fees.
In dismissing the complaint, the Labor Arbiter declared that

respondent was validly terminated for gross neglect of duty.
He opined that Chiara Mae drowned because respondent
had left the pupils without any adult supervision. He also
noted that the absence of adequate facilities should have
alerted respondent before allowing the pupils to use the
swimming pool. The Labor Arbiter further concluded that
although respondents negligence was not habitual, the
same warranted her dismissal since death resulted
therefrom.
Respondent appealed to the NLRC which, however, affirmed
the dismissal of the complaint.
Aggrieved, respondent instituted a petition for certiorari
before the Court of Appeals, which ruled in her favor. The
appellate court observed that there was insufficient proof that
respondents negligence was both gross and habitual. The
Court of Appeals disposed, thus:
WHEREFORE, the Court hereby GRANTS the petition.
The assailed September 20, 2002 Resolution of the National
Labor Relations Commission entitled Corazon Taguiam vs.
School of the Holy Spirit and/or Sister Crispina Tolentino[,]
NLRC NCR Case No. 00-07-03877-01[,] NLRC NCR CA No.
031627-02 is hereby REVERSED and SET ASIDE, and a
new one is hereby ENTERED directing the private
respondent the School of the Holy Spirit to:
(1) Pay the petitioner full backwages, plus all other benefits,
bonuses and general increases to which she would have
been normally entitled, had she not been dismissed and had
she not been forced to stop working computed up to the
finality of this decision;
(2) Pay the petitioner separation pay equivalent to one (1)
month for every year of service in addition to full backwages;
(3) Pay the petitioner an amount equivalent to 10% of the
judgment award as attorneys fees;
(4) Pay the cost of this suit.
SO ORDERED.11
In this petition, petitioners contend that the Court of Appeals
erred in:
REVERSING AND SETTING ASIDE THE DECISION AND
RESOLUTION OF THE NATIONAL LABOR RELATIONS
COMMISSION AFFIRMING THE DECISION OF THE
LABOR ARBITER DISMISSING THE COMPLAINT FOR
LACK OF MERIT.12
Simply stated, the sole issue presented for our resolution is
whether respondents dismissal on the ground of gross
negligence resulting to loss of trust and confidence was
valid.

The issue of whether a party is negligent is a question of
fact. As a rule, the Supreme Court is not a trier of facts and
this applies with greater force in labor cases. 13 However,
where the issue is shrouded by a conflict of factual
perception, we are constrained to review the factual findings
of the Court of Appeals. In this case, the findings of facts of
the appellate court contradict those of the Labor Arbiter and
the NLRC.14
Under Article 28215 of the Labor Code, gross and habitual
neglect of duties is a valid ground for an employer to
terminate an employee. Gross negligence implies a want or
absence of or a failure to exercise slight care or diligence, or
the entire absence of care. It evinces a thoughtless disregard
of consequences without exerting any effort to avoid
them.16 Habitual neglect implies repeated failure to perform
ones duties for a period of time, depending upon the
circumstances.17
Our perusal of the records leads us to conclude that
respondent had been grossly negligent. First, it is undisputed
that Chiara Maes permit form was unsigned. Yet, respondent
allowed her to join the activity because she assumed that
Chiara Maes mother has allowed her to join it by personally
bringing her to the school with her packed lunch and
swimsuit.
The purpose of a permit form is precisely to ensure that the
parents have allowed their child to join the school activity
involved. Respondent cannot simply ignore this by resorting
to assumptions. Respondent admitted that she was around
when Chiara Mae and her mother arrived. She could have
requested the mother to sign the permit form before she left
the school or at least called her up to obtain her conformity.
Second, it was respondents responsibility as Class Adviser
to supervise her class in all activities sanctioned by the
school.18 Thus, she should have coordinated with the school
to ensure that proper safeguards, such as adequate first aid
and sufficient adult personnel, were present during their
activity. She should have been mindful of the fact that with
the number of pupils involved, it would be impossible for her
by herself alone to keep an eye on each one of them.
As it turned out, since respondent was the only adult
present, majority of the pupils were left unsupervised when
she followed the two pupils who sneaked out. In the light of
the odds involved, respondent should have considered that
those who sneaked out could not have left the school
premises since there were guards manning the gates. The
guards would not have allowed them to go out in their
swimsuits and without any adult accompanying them. But
those who stayed at the pool were put at greater risk, when
she left them unattended by an adult.1avvphi1
Notably, respondents negligence, although gross, was not
habitual. In view of the considerable resultant damage,
however, we are in agreement that the cause is sufficient to
dismiss respondent. This is not the first time that we have
departed from the requirements laid down by the law that
neglect of duties must be both gross and habitual. In

Philippine Airlines, Inc. v. NLRC,19 we ruled that Philippine
Airlines (PAL) cannot be legally compelled to continue with
the employment of a person admittedly guilty of gross
negligence in the performance of his duties although it was
his first offense. In that case, we noted that a mere delay on
PALs flight schedule due to aircraft damage entails problems
like hotel accommodations for its passengers, re-booking,
the possibility of law suits, and payment of special landing
fees not to mention the soaring costs of replacing aircraft
parts.20 In another case, Fuentes v. National Labor Relations
Commission,21 we held that it would be unfair to compel
Philippine Banking Corporation to continue employing its
bank teller. In that case, we observed that although the
tellers infraction was not habitual, a substantial amount of
money was lost. The deposit slip had already been validated
prior to its loss and the amount reflected thereon is already
considered as current liabilities in the banks balance
sheet.22 Indeed, the sufficiency of the evidence as well as the
resultant damage to the employer should be considered in
the dismissal of the employee. In this case, the damage went
as far as claiming the life of a child.
As a result of gross negligence in the present case,
petitioners lost its trust and confidence in respondent. Loss
of trust and confidence to be a valid ground for dismissal
must be based on a willful breach of trust and founded on
clearly established facts. A breach is willful if it is done
intentionally, knowingly and purposely, without justifiable
excuse, as distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently.23 Otherwise
stated, it must rest on substantial grounds and not on the
employers arbitrariness, whims, caprices or suspicion;
otherwise, the employee would eternally remain at the mercy
of the employer. It should be genuine and not simulated; nor
should it appear as a mere afterthought to justify earlier
action taken in bad faith or a subterfuge for causes which are
improper, illegal or unjustified. It has never been intended to
afford an occasion for abuse because of its subjective
nature. There must, therefore, be an actual breach of duty
committed by the employee which must be established by
substantial evidence.24
As a teacher who stands in loco parentis to her pupils,
respondent should have made sure that the children were
protected from all harm while in her company.25 Respondent
should have known that leaving the pupils in the swimming
pool area all by themselves may result in an accident. A
simple reminder "not to go to the deepest part of the
pool"26 was insufficient to cast away all the serious dangers
that the situation presented to the children, especially when
respondent knew that Chiara Mae cannot swim.27 Dismally,
respondent created an unsafe situation which exposed the
lives of all the pupils concerned to real danger. This is a clear
violation not only of the trust and confidence reposed on her
by the parents of the pupils but of the school itself.
Finally, we note that based on the criminal complaint filed by
Chiara Maes parents, the Assistant City Prosecutor found
probable cause to indict respondent for the crime of reckless
imprudence resulting in homicide. The Assistant City

Prosecutor held that respondent "should have foreseen the
danger lurking in the waters." By leaving her pupils in the
swimming pool, respondent displayed an "inexcusable lack
of foresight and precaution."28 While this finding is not
controlling for purposes of the instant case, this only
supports our conclusion that respondent has indeed been
grossly negligent.
All told, there being a clear showing that respondent was
culpable for gross negligence resulting to loss of trust and
confidence, her dismissal was valid and legal. It was error for
the Court of Appeals to reverse and set aside the resolution
of the NLRC.
WHEREFORE, the petition is GRANTED. The assailed
Decision dated June 7, 2004 of the Court of Appeals in CAG.R. SP No. 81480 is SET ASIDE. The Resolution dated
September 20, 2002 of the National Labor Relations
Commission in NLRC NCR CA No. 031627-02 is
REINSTATED. No pronouncement as to costs.
The Republic, through the Office of the Solicitor

General, sought to appeal the trial courts order by filing a
Notice of Appeal.[3]
By Order of November 22, 1999s,[4] the trial court,
noting that no record of appeal was filed and served as
required by and pursuant to Sec. 2(a), Rule 41 of the 1997
Rules of Civil Procedure, the present case being a special
proceeding, disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial
courts order of disapproval having been denied by Order of
January 13, 2000,[5] it filed a Petition for Certiorari[6] before
the Court of Appeals, it contending that the declaration of
presumptive death of a person under Article 41 of the Family
Code is not a special proceeding or a case of multiple or
separate appeals requiring a record on appeal.
By Decision of May 5, 2004,[7] the Court of Appeals
denied the Republics petition on procedural and substantive
grounds in this wise:
SO ORDERED.
SUMMARY PROCEEDINGS
REPUBLIC v. COURT OF APPEALS
THIRD DIVISION
[G.R. No. 163604. May 6, 2005]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE
HON. COURT OF APPEALS (Twentieth Division),
HON. PRESIDING JUDGE FORTUNITO L.
MADRONA, RTC-BR. 35 and APOLINARIA
MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In In the Matter of Declaration of Presumptive Death of
Absentee Spouse Clemente P. Jomoc, Apolinaria Malinao
Jomoc, petitioner, the Ormoc City, Regional Trial Court,
Branch 35, by Order of September 29, 1999,[1] granted the
petition on the basis of the Commissioners Report[2] and
accordingly declared the absentee spouse, who had left his
petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito
L. Madrona, cited Article 41, par. 2 of the Family Code. Said
article provides that for the purpose of contracting a valid
subsequent marriage during the subsistence of a previous
marriage where the prior spouse had been absent for four
consecutive
years,
the
spouse
present
must
institute summary proceedings for the declaration of
presumptive death of the absentee spouse, without prejudice
to the effect of the reappearance of the absent spouse.
At the outset, it must be stressed that the petition is not

sufficient in form. It failed to attach to its petition a certified
true copy of the assailed Order dated January 13,
2000 [denying its Motion for Reconsideration of the
November 22, 1999 Order disapproving its Notice of Appeal].
Moreover, the petition questioned the [trial courts] Order
dated August 15, 1999, which declared Clemente Jomoc
presumptively dead, likewise for having been issued with
grave abuse of discretion amounting to lack of jurisdiction,
yet, not even a copy could be found in the records. On this
score alone, the petition should have been dismissed
outright in accordance with Sec. 3, Rule 46 of the Rules of
Court.
However, despite the procedural lapses, the Court resolves
to delve deeper into the substantive issue of the
validity/nullity of the assailed order.
The principal issue in this case is whether a petition for
declaration of the presumptive death of a person is in
the nature of a special proceeding. If it is, the period to
appeal is 30 days and the party appealing must, in addition
to a notice of appeal, file with the trial court a record on
appeal to perfect its appeal. Otherwise, if the petition is an
ordinary action, the period to appeal is 15 days from notice
or decision or final order appealed from and the appeal is
perfected by filing a notice of appeal (Section 3, Rule 41,
Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, a
civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention of
redress of a wrong while a special proceeding under
Section 3(c) of the same rule is defined as a remedy by
which a party seeks to establish a status, a right or a
particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et
al., G.R. No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds
that the instant petition is in the nature of a special
proceeding and not an ordinary action. The petition
merely seeks for a declaration by the trial court of the
presumptive death of absentee spouse Clemente Jomoc. It
does not seek the enforcement or protection of a right or the
prevention or redress of a wrong. Neither does it involve a
demand of right or a cause of action that can be enforced
against any person.
On the basis of the foregoing discussion, the subject Order
dated January 13, 2000 denying OSGs Motion for
Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued. The
instant petition, being in the nature of a special
proceeding, OSG should have filed, in addition to its
Notice of Appeal, a record on appeal in accordance with
Section 19 of the Interim Rules and Guidelines to Implement
BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court .
. . (Emphasis and underscoring supplied)
The Republic (petitioner) insists that the declaration of
presumptive death under Article 41 of the Family Code is not
a special proceeding involving multiple or separate appeals
where a record on appeal shall be filed and served in like
manner.
Petitioner cites Rule 109 of the Revised Rules of Court
which enumerates the cases wherein multiple appeals are
allowed and a record on appeal is required for an appeal to
be perfected. The petition for the declaration of presumptive
death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of
appeal suffices.
By Resolution of December 15, 2004,[8] this Court,
noting that copy of the September 27, 2004
Resolution[9] requiring respondent to file her comment on the
petition was returned unserved with postmasters notation
Party refused, Resolved to consider that copy deemed
served upon her.
The pertinent provisions on the General Provisions on
Special Proceedings, Part II of the Revised Rules of Court
entitled SPECIAL PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of
special proceedings are provided for in the following:
(a)
Settlement of estate of deceased persons;
(b)
Escheat;
(c)
Guardianship and custody of children;
(d)
Trustees;
(e)
Adoption;
(f)
Rescission and revocation of adoption;
(g)
Hospitalization of insane persons;
(h)
Habeas corpus;
(i)
Change of name;
(j)
Voluntary dissolution of corporations;
(k)
Judicial approval of voluntary recognition of minor

natural children;
(l)
Constitution of family home;
(m)
Declaration of absence and death;
(n)
Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. In the

absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in
special proceedings. (Underscoring supplied)
The pertinent provision
presumption of death provides:
of
the
Civil
Code
on
Art. 390. After an absence of seven years, it being unknown

whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code,
upon which the trial court anchored its grant of the petition
for the declaration of presumptive death of the absent
spouse, provides:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouses had been absent for four consecutive
years and the spouse present had a well-founded belief that
the absent spouses was already dead. In case of
disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the
Civil Code, an absence of only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage
under the preceding paragraph, the spouses present must
institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the

absentee, without prejudice to the effect of a reappearance
of the absent spouse. (Emphasis and underscoring
supplied)
Rule 41, Section 2 of the Revised Rules of Court, on
Modes of Appeal, invoked by the trial court in disapproving
petitioners Notice of Appeal, provides:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I
of Republic Act No. 386, otherwise known as the Civil Code
of the Philippines, as amended, and Articles 17, 18, 19, 27,
28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No.
603, otherwise known as the Child and Youth Welfare Code,
as amended, and all laws, decrees, executive orders,
proclamations rules and
regulations,
or
parts
thereof, inconsistent
therewith are
hereby repealed,
(Emphasis and underscoring supplied),
Sec. 2. Modes of appeal. -
seals the case in petitioners favor.
(a) Ordinary appeal. - The appeal to the Court of Appeals in

cases decided by the Regional Trial Court in the exercise of
its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except
in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed
and served in like manner. (Emphasis and underscoring
supplied)
Finally, on the alleged procedural flaw in petitioners

petition before the appellate court. Petitioners failure to
attach to his petition before the appellate court a copy of the
trial courtsorder denying its motion for reconsideration of the
disapproval of its Notice of Appeal is not necessarily fatal, for
the rules of procedure are not to be applied in a technical
sense. Given the issue raised before it by petitioner, what
the appellate court should have done was to direct petitioner
to comply with the rule.
xxx
By the trial courts citation of Article 41 of the Family
Code, it is gathered that the petition of Apolinaria Jomoc to
have her absent spouse declared presumptively dead had
for its purpose her desire to contract a valid subsequent
marriage. Ergo, the petition for that purpose is a summary
proceeding, following above-quoted Art. 41, paragraph 2 of
the Family Code.
Since Title XI of the Family Code, entitled SUMMARY
JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the
following provision, inter alia:
As for petitioners failure to submit copy of the trial

courts order granting the petition for declaration of
presumptive death, contrary to the appellate courts
observation that petitioner was also assailing it, petitioners
8-page petition[10] filed in said court does not so reflect, it
merely having assailed the order disapproving the Notice of
Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of
the Court of Appeals is hereby REVERSED and SET
ASIDE. Let the case be REMANDED to it for appropriate
action in light of the foregoing discussion.
SO ORDERED.
REPUBLIC v. LORINO
xxx
Art. 238. Unless modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases provided
for in this Codes requiring summary court proceedings.
Such cases shall be decided in an expeditious manner
without regard to technical rules. (Emphasis and
underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc
required, and is, therefore, a summary proceeding under the
Family Code, not a special proceeding under the Revised
Rules of Court appeal for which calls for the filing of a
Record on Appeal. It being a summary ordinary proceeding,
the filing of a Notice of Appeal from the trial courts order
sufficed.
That the Family Code provision on repeal, Art. 254,
provides as follows:

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 160258
January 19, 2005
REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GLORIA BERMUDEZ-LORINO, respondent.
DECISION
GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of the
Rules of Court, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG),
seeks the reversal and setting aside of the decision dated

September 23, 2003 of the Court of Appeals in CA-G.R. CV
No. 73884, which affirmed on appeal an earlier decision of
the Regional Trial Court (RTC) at San Mateo, Rizal in a
summary judicial proceeding thereat commenced by the
herein respondent Gloria Bermudez-Lorino for the
declaration of the presumptive death of her absent spouse,
Francisco Lorino, Jr., based on the provisions of Article 41 of
the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and
her husband were married on June 12, 1987. Out of this
marriage, she begot three (3) children, namely: Francis
Jeno, Fria Lou and Fatima.1a\^/phi1.net
Before they got married in 1987, Gloria was unaware that
her husband was a habitual drinker, possessed with violent
character/attitude, and had the propensity to go out with
friends to the extent of being unable to engage in any gainful
work.
Because of her husbands violent character, Gloria found it
safer to leave him behind and decided to go back to her
parents together with her three (3) children. In order to
support the children, Gloria was compelled to work abroad.
From the time of her physical separation from her husband in
1991, Gloria has not heard of him at all. She had absolutely
no communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her
husband, Gloria filed a verified petition with the Regional
Trial Court (RTC) at San Mateo, Rizal under the rules
on Summary Judicial Proceedings in the Family
Law provided for in the Family Code, which petition was
docketed in the same court as Special Proceeding No. 32500 SM.
On August 28, 2000, the RTC issued an order directing, inter
alia, the publication of the petition in a newspaper of general
circulation, thus:
A verified petition was filed by herein petitioner through
counsel alleging that she married Francisco Lorino, Jr. on
June 12, 1987 but because of the violent character of his
husband, she decided to go back to her parents and lived
separately from her husband. After nine (9) years, there was
absolutely no news about him and she believes that he is
already dead and is now seeking through this petition for a
Court declaration that her husband is judicially presumed
dead for the purpose of remarriage.
Finding the said petition to be sufficient in form and
substance, the same is hereby set for hearing before this
Court on September 18, 2000 at 8:30 oclock in the morning

at which place, date and time, any or all persons who may
claim any interest thereto may appear and show cause why
the same should not be granted.
Let a copy of this Order be published in a newspaper of
general circulation in this province once a week for three (3)
consecutive weeks and be posted in the bulletin boards of
the Hall of Justice and the Municipal Hall, San Mateo, Rizal,
all at the expense of the petitioner.1awphi1.nt
Furnish the Office of the Solicitor General a copy of this
Order together with a copy of the petition. Further, send a
copy of this Order to the last known address of Francisco
Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City.
SO ORDERED1
The evidence in support of the summary judicial proceeding
are: the order of publication dated August 28, 2000 (Exhibit
"A"); affidavit of publication dated September 16, 2000
(Exhibit "B")2 ; copies of the newspapers where the order
appeared (Exhibits "C" to "E-1")3 ; a deposition dated
September 4, 2000 of Gloria taken in Hong Kong (Exhibit
"G")4 ; Glorias affidavit dated October 21, 1999, also
executed in Hong Kong (Exhibit "G-1")5 ; and a certification
by Department of Foreign Affairs Authentication Officer,
Catalina C. Gonzalez, dated November 3, 1999, therein
certifying that the signature of Vice Consul Adriane Bernie C.
Candolada, appearing below the jurat in Glorias affidavit of
October 21, 1999, is authentic (Exhibit "G-2")6 .
In a decision dated November 7, 2001, the RTC, finding
merit in the summary petition, rendered judgment granting
the same, to wit:
WHEREFORE, this Court in view of the facts and
circumstances obtaining, finds the petition with merit and
hereby grants its imprimatur to the petition. Judgment is
hereby rendered declaring the presumptive death/absence of
Francisco Lorino, Jr. pursuant to Art. 41 of the New Family
Code but subject to all restrictions and conditions provided
therein.
SO ORDERED.7
Despite the judgment being immediately final and executory
under the provisions of Article 247 of the Family Code, thus:
Art. 247. The judgment of the court shall be immediately final
and executory,
the Office of the Solicitor General, for the Republic of the
Philippines, nevertheless filed a Notice of Appeal.8 Acting
thereon, the RTC had the records elevated to the Court of
Appeals which docketed the case as CA-G.R. CV No.
73884.

In a decision dated September 23, 2003, the Court of
Appeals, treating the case as an ordinary appealed case
under Rule 41 of the Revised Rules on Civil Procedure,
denied the Republics appeal and accordingly affirmed the
appealed RTC decision:
November 14, 2001, within the reglementary period fixed by

the Rules, let the entire records of this case be transmitted to
the Court of Appeals for further proceedings.
WHEREFORE, based on the foregoing premises, the instant

appeal is DENIED. Accordingly, the appealed November 7,
2001 Decision of the Regional Trial Court of San Mateo,
Rizal in Spec. Proc. No. 325-00 SM is herebyAFFIRMED.
In Summary Judicial Proceedings under the Family Code,

there is no reglementary period within which to perfect an
appeal, precisely because judgments rendered thereunder,
by express provision of Section 247, Family Code, supra, are
"immediately final and executory". It was erroneous,
therefore, on the part of the RTC to give due course to the
Republics appeal and order the transmittal of the entire
records of the case to the Court of Appeals.
SO ORDERED.9
Without filing any motion for reconsideration, petitioner
Republic directly went to this Court via the instant recourse
under Rule 45, maintaining that the petition raises a pure
question of law that does not require prior filing of a motion
for reconsideration.
The foregoing factual antecedents present to this Court the
following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY
ACQUIRED JURISDICTION OVER THE APPEAL ON A
FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL
TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES
FOR A JUDICIAL DECLARATION OF PRESUMPTIVE
DEATH UNDER ARTICLE 41 OF THE FAMILY CODE
WERE DULY ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the
tenor for cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the
for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without
regard to technical rules.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San
Mateo, Rizal duly complied with the above-cited provision by
expeditiously rendering judgment within ninety (90) days
after the formal offer of evidence by therein petitioner, Gloria
Bermudez-Lorino.
The problem came about when the judge gave due course to
the Republics appeal upon the filing of a Notice of Appeal,
and had the entire records of the case elevated to the Court
of Appeals, stating in her order of December 18, 2001, as
follows:
Notice of Appeal having been filed through registered mail on
November 22, 2001 by the Office of the Solicitor General
who received a copy of the Decision in this case on
SO ORDERED.10
An appellate court acquires no jurisdiction to review a

judgment which, by express provision of law, is immediately
final and executory. As we have said in Veloria vs.
Comelec,11 "the right to appeal is not a natural right nor is it a
part of due process, for it is merely a statutory privilege."
Since, by express mandate of Article 247 of the Family
Code, all judgments rendered in summary judicial
proceedings in Family Law are "immediately final and
executory", the right to appeal was not granted to any of the
parties therein. The Republic of the Philippines, as oppositor
in the petition for declaration of presumptive death, should
not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting
through its Special Fourth Division, with Justice Elvi John S.
Asuncion as Acting Chairman and ponente, denied the
Republics appeal and affirmed without modification the final
and executory judgment of the lower court. For, as we have
held in Nacuray vs. NLRC :12
Nothing is more settled in law than that when a judgment
becomes final and executory it becomes immutable and
unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and
whether made by the highest court of the land (citingNunal v.
Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA
26).
But, if only to set the records straight and for the future
guidance of the bench and the bar, let it be stated that the
RTCs decision dated November 7, 2001, was immediately
final and executory upon notice to the parties. It was
erroneous for the OSG to file a notice of appeal, and for the
RTC to give due course thereto. The Court of Appeals
acquired no jurisdiction over the case, and should have
dismissed the appeal outright on that ground.
This judgment of denial was elevated to this Court via a
petition for review on certiorari under Rule 45. Although the
result of the Court of Appeals denial of the appeal would
apparently be the same, there is a big difference between
having the supposed appeal dismissed for lack of jurisdiction
by virtue of the fact that the RTC decision sought to be

appealed is immediately final and executory, and the denial
of the appeal for lack of merit. In the former, the supposed
appellee can immediately ask for the issuance of an Entry of
Judgment in the RTC, whereas, in the latter, the appellant
can still raise the matter to this Court on petition for review
and the RTC judgment cannot be executed until this Court
makes the final pronouncement.
once when Maria told Ferventino that she and her family will
soon be leaving for the United States of America (USA).
Maria assured Ferventino, however, that she will file a
petition so he can live with her in the USA. In the event that
said petition is denied, she promised to return to the
Philippines to live with him. On March 13, 1987, Maria and
her family flew to Seattle, USA.
The Court, therefore, finds in this case grave error on the

part of both the RTC and the Court of Appeals. To stress, the
Court of Appeals should have dismissed the appeal on
ground of lack of jurisdiction, and reiterated the fact that the
RTC decision of November 7, 2001 was immediately final
and executory. As it were, the Court of Appeals committed
grave reversible error when it failed to dismiss the erroneous
appeal of the Republic on ground of lack of jurisdiction
because, by express provision of law, the judgment was not
appealable.
Ferventino alleges that Maria kept in touch for a year before

she stopped responding to his letters. Out of resentment, he
burned all the letters Maria wrote him. He claims to have
forgotten her address since.
WHEREFORE, the instant petition is hereby DENIED for lack

of merit.1a\^/phi1.net No pronouncement as to costs.
SO ORDERED.
REPUBLIC v. TANGO
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 161062
July 31, 2009
REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
FERVENTINO U. TANGO, Respondent.
DECISION
QUISUMBING, J.:
This is a petition for review on certiorari of the
Decision1 dated November 28, 2003 of the Court of Appeals
in CA-G.R. CV No. 76387 which denied the Republics
appeal from the Order2 dated July 23, 2002 of the Regional
Trial Court (RTC) of Ligao City, Branch 11 in Special
Proceeding No. 357. The trial court had declared the wife of
respondent Ferventino U. Tango (Ferventino), Maria Jose
Villarba (Maria), presumptively dead under Article 413 of the
Family Code.
The present controversy arose from the following facts:
On March 9, 1987, Ferventino and Maria were married4 in
civil rites before then Mayor Ignacio Bunye of Muntinlupa
City. None of Marias relatives witnessed the ceremony as
they were opposed to her relationship with Ferventino. The
two had only spent a night together and had been intimate
Ferventino recounts the efforts he made to find Maria. Upon

inquiry from the latters uncle, Antonio Ledesma, in Las
Pias, Ferventino learned that even Marias relatives were
unaware of her whereabouts. He also solicited the
assistance of a friend in Texas, Capt. Luis Aris of the U.S. Air
Force, but to no avail. Finally, he sought the aid of his
parents Antonio and Eusebia in Los Angeles, and his aunt
Anita Castro-Mayor in Seattle. Like, Ledesma though, their
attempts to find Maria proved fruitless. The next 14 years
went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a
verified petition5 dated October 1, 2001 before the Ligao City
RTC for the declaration of presumptive death of Maria within
the contemplation of Article 41 of the Family Code.
When the case was called for initial hearing on January 8,
2002, nobody entered any opposition. On July 22, 2002,
Ferventino presented evidence ex parte and testified in court
about the details of his search. On July 23, 2002, Branch 11
of the Ligao City RTC issued an Order, the dispositive
portion of which reads as follows:
WHEREFORE, judgment is hereby rendered, declaring
MARIA JOSE V. VILLARBA, wife of FERVENTINO U.
TANGO, presumptively dead within the meaning of Article 41
of the Family Code.
SO ORDERED. 6
This prompted the Office of the Solicitor General (OSG), for
the Republic, to file a Notice of Appeal. 7 Acting thereon,
Presiding Judge Romulo SG. Villanueva of the Ligao City
RTC had the records of the case transmitted to the Court of
Appeals.
The Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Rules of Court, affirmed
the RTCs Order. It held that Marias absence for 14 years
without information about her location despite diligent search
by Ferventino was sufficient to support a well-founded belief
of her death. The appellate court observed that neither the
OSG nor the Assistant Provincial Prosecutor objected to the
evidence which Ferventino presented on trial. It noted, in
particular, that the OSG did not dispute the adequacy of
Ferventinos basis to engender a well-founded belief that
Maria is dead. Hence, in a Decision dated November 28,

2003, the Court of Appeals denied the Republics appeal in
this tenor:
WHEREFORE, the appeal is hereby DENIED. Accordingly,
the July 23, 2002 Order of the Regional Trial Court of Ligao
City, Branch 11 in Spec. Proc. No. 357 is AFFIRMED.
SO ORDERED.8
Before us, petitioner anchors this petition for review on
certiorari on the following two grounds:
I.
THE TESTIMONY OF RESPONDENT ON THE ALLEGED
EFFORTS MADE BY HIS FRIEND AND RELATIVES IN
LOCATING HIS MISSING WIFE IN SEATTLE, UNITED
STATES, IS HEARSAY AND DEVOID OF PROBATIVE
VALUE[; AND]
II.
EVEN ASSUMING THAT THE AFORESAID TESTIMONY
MAY BE CONSIDERED IN EVIDENCE, THE ALLEGED
EFFORTS OF RESPONDENTS FRIEND AND RELATIVES
IN LOCATING HIS MISSING WIFE IN SEATTLE, UNITED
STATES, DO NOT SUFFICIENTLY SUPPORT A "WELLFOUNDED BELIEF" THAT RESPONDENTS ABSENT
SPOUSE IS PROBABLY DEAD.9
Unadorned, the issues for our determination are: (1) whether
the testimony of respondent Ferventino is hearsay; and (2)
whether respondent Ferventino has established a basis to
form a well-founded belief that his absent spouse is already
dead.
The Republic, through the OSG, contests the appellate
courts holding that the absence of respondents wife Maria
for 14 years provides sufficient basis to entertain a wellfounded belief that she is dead. The OSG discounts
respondents testimony, on the steps he took to find Maria,
as hearsay because none of the persons who purportedly
helped in his search testified in court. Notably, the OSG
observes that only Capt. Aris gave a detailed account of his
efforts to track down Maria. According to Capt. Aris, he went
over the Seattle phone directory for Marias name and
inquired about her from the registrars office in Seattle, but
both efforts proved to be in vain.
The OSG belittles its failure to object to the admissibility of
respondents testimony during trial. Instead, it invokes
Constitutional provisions that advocate the state policy of
preserving marital institutions.
On March 16, 2007, respondents counsel, Atty. Richie R.
Regala, manifested to this Court his intent to withdraw as
counsel for respondent. According to Atty. Regala, he
received a letter by which respondent expressed a desire to
withdraw from the proceeding.10 In view of this, the Court
issued a Resolution11 on April 21, 2008 which deemed as

waived the filing of respondents comment on the petition.
Previously, the Court of Appeals had also issued a
Resolution12 dated October 15, 2003 submitting the case for
decision and ordering its re-raffling for respondents failure to
file an appellees brief. In other words, apart from the verified
petition for the declaration of presumptive death of Maria
dated October 1, 2001, which respondent filed before the
Ligao City RTC, he has not submitted any other pleading in
connection with the petition.
Respondents apparent lack of desire to pursue the
proceedings notwithstanding, the Court is inclined to rule
against the Republic.
This case presents an opportunity for us to settle the rule on
appeal of judgments rendered in summary proceedings
under the Family Code and accordingly, refine our previous
decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW,
establishes the rules that govern summary court proceedings
in the Family Code:
ART. 238. Until modified by the Supreme Court, the
for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without
regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases
covered by the rules in chapters two and three of the same
title. It states:
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. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately
final and executory.
By express provision of law, the judgment of the court in a
summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal
can be had of the trial courts judgment in a summary
proceeding for the declaration of presumptive death of an
absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a
petition for certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such petition should be filed
in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Courts original
jurisdiction to issue a writ of certiorari is concurrent with the
RTCs and the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted freedom of
choice of court forum.13 From the decision of the Court of

Appeals, the losing party may then file a petition for review
on certiorari under Rule 45 of the Rules of Court with the
Supreme Court. This is because the errors which the court
may commit in the exercise of jurisdiction are merely errors
of judgment which are the proper subject of an
appeal.141avvphi1
In the case before us, petitioner committed a serious
procedural lapse when it filed a notice of appeal in the Court
of Appeals instead of a petition for certiorari. The RTC
equally erred in giving due course to said appeal and
ordering the transmittal of the records of the case to the
appellate court. By no means did the Court of Appeals
acquire jurisdiction to review the judgment of the RTC which,
by express provision of law, was immediately final and
executory.
Adding to the confusion, the Court of Appeals entertained the
appeal and treated the same as an ordinary appeal under
Rule 41 of the Rules of Court. As it were, the Court of
Appeals committed grave reversible error when it failed to
dismiss the erroneous appeal of the Republic on the ground
of lack of jurisdiction because, by express provision of the
law, the judgment was not appealable.15
Before us, petitioner filed a petition for review on certiorari
under Rule 45 of the Rules of Court. But, even if petitioner
used the correct mode of appeal at this level, the hands of
the Court are tied. Without a doubt, the decision of the trial
court had long become final.
Deeply ingrained in our jurisprudence is the principle that a
decision that has acquired finality becomes immutable and
unalterable. As such, it may no longer be modified in any
respect even if the modification is meant to correct
erroneous conclusions of fact or law and whether it will be
made by the court that rendered it or by the highest court of
the land.16 In light of the foregoing, it would be unnecessary,
if not useless, to discuss the issues raised by petitioner.
The doctrine of finality of judgment is grounded on the
fundamental principle of public policy and sound practice
that, at the risk of occasional error, the judgment of courts
and the award of quasi-judicial agencies must become final
on some definite date fixed by law. The only exceptions to
the general rule are the correction of clerical errors, the socalled nunc pro tunc entries which cause no prejudice to any
party, void judgments, and whenever circumstances
transpire after the finality of the decision which render its
execution unjust and inequitable.17 None of the exceptions
obtains here to merit the review sought.
WHEREFORE the instant petition is DENIED for lack of
merit. No pronouncement as to costs.
SO ORDERED.

SURNAMES
REPUBLIC v. COURT OF APPEALS
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 97906 May 21, 1992

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and MAXIMO WONG, respondents.
Public Attorney's Office for private respondent.
REGALADO, J.:
Petitioner seeks to set aside the judgment of respondent
Court
of
Appeals 1 in affirmance of the decision of the court a
quo 2 granting the petition filed by herein private respondent
Maximo Wong for the change of his name to Maximo Alcala,
Jr. which was his name prior to his adoption by Hoong Wong
and Concepcion Ty Wong.
The facts are undisputed. Private respondent Maximo Wong
is the legitimate son of Maximo Alcala, Sr. and Segundina Y.
Alcala. When he was but two and a half years old and then
known as Maximo Alcala, Jr., and his sister Margaret Alcala,
was then nine years old, they were, with the consent of their
natural parents 3 and by order of the court in Special Case
No. 593 4 issued on September 9, 1967, adopted by spouses
Hoong Wong and Concepcion Ty Wong, both naturalized
Filipinos. Hoong Wong, now deceased, was an insurance
agent while Concepcion Ty Wong was a high school teacher.
They decided to adopt the children as they remained
childless after fifteen years of marriage. The couples
showered their adopted children with parental love and
reared them as their own children.
Upon reaching the age of twenty-two, herein private
respondent, by then married and a junior Engineering
student at Notre Dame University, Cotabato City, filed a
petition to change his name to Maximo Alcala, Jr. It was

averred that his use of the surname Wong embarrassed and
isolated him from his relatives and friends, as the same
suggests a Chinese ancestry when in truth and in fact he is a
Muslim Filipino residing in a Muslim community, and he
wants to erase any implication whatsoever of alien
nationality; that he is being ridiculed for carrying a Chinese
surname, thus hampering his business and social life; and
that his adoptive mother does not oppose his desire to revert
to his former surname.
As earlier stated, on July 2, 1986, the matter was resolved in
favor of private respondent, the trial court decreeing that, the
jurisdictional requirements having been fully complied with,
petitioner's prayer to change his name from Maximo Wong to
Maximo Alcala, Jr. was granted. 5 On appeal to respondent
court, and over the opposition of petitioner Republic through
the Solicitor General, the decision of the court below was
affirmed in full, hence, this petition for review oncertiorari.
The lone issue to be settled is whether or not the reasons
given by private respondent in his petition for change of
name are valid, sufficient and proper to warrant the granting
of said petition.
The Solicitor General contends that private respondent's
allegations of ridicule and/or isolation from family and friends
were unsubstantiated and cannot justify the petition for
change of name. He claims that for private respondent to
cast aside the name of his adoptive father is crass
ingratitude to the memory of the latter and to his adoptive
mother who is still alive, despite her consent to the petition
for change of name. Further, the Solicitor General posits that
the reversion of Maximo Wong to his old name violates
Articles 341 and 365 of the Civil Code, which requires an
adopted child to use the surname of the adopter, and would
identify him with his parents by nature, thus giving the
impression that he has severed his relationship with his
adoptive parents. 6
In refutation, private respondent argues that he did as the
law required, that is, upon adoption he used the surname of
the adopter. However, being already emancipated, he can
now decide what is best for and by himself. It is at this time
that he realized that the Chinese name he carries causes
him undue ridicule and embarrassment and affects his
business and social life. In fact, his adoptive mother, being
aware of his predicament, gave her consent to the petition
for change of name, albeit making it clear that the same shall
in no way affect the legal adoption, and even underwent the
rigors of trial to substantiate her sworn statement. If his
adoptive mother does not take offense nor feel any
resentment, abhorrence or insecurity about his desire to
change his name, private respondent avers that there can be
no possible prejudice on her, much less the State. 7
We feel that we should preface our review of this case with a
clear comprehension of the legal significance of a person's
name. For all practical and legal purposes, a man's name is
the designation by which he is known and called in the

community in which be lives and is best known. It is defined
as the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or
appellation which he bears for the convenience of the world
at large addressing him, of in speaking of or dealing with
him. 8 Names are used merely as one method of indicating
the identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it
has frequently been held that, when identity is certain, a
variance in, or misspelling of, the name is immaterial. 9
The names of individuals usually have two parts: the given
name or proper name, and the surname or family name. The
given or proper name is that which is given to the individual
at birth or baptism, to distinguish him from other individuals.
The name or family name is that which identifies the family to
which he belongs and is continued from parent to child. The
given name may be freely selected by the parents for the
child; but the surname to which the child is entitled is fixed by
law. 10
A name is said to have the following characteristics: (1) It is
absolute, intended to protect the individual from being
confused with others. (2) It is obligatory in certain respects,
for nobody can be without a name. (3) It is fixed,
unchangeable, or immutable, at least at the start, and may
be changed only for good cause and by judicial proceedings.
(4) It is outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or mortis
causa. (5) It is imprescriptible. 11
Title XIII, Book I of the Civil Code, in Articles 364 to 380,
provides the substantive rules which regulate the use of
surnames. Considering the subject and personalities
involved in this present review, particular attention must be
called to Article 365 which mandates that "(a)n adopted child
shall bear the surname of the adopter," in correlation with
Article 341 on the effects of adoption, among which is
to"(e)ntitle the adopted person to use the adopter's
surname." This same entitlement of an adopted child is
maintained in Article 39(3), Title II of Presidential Decree No.
603, otherwise known as the Child and Youth Welfare Code.
More recently, Executive Order No. 209, as amended by
Executive Order No. 227, or the Family Code, echoes the
same statutory right of an adopted child to use the surname
of the adopter. 12 Clearly, from the very wordings of the law, it
may be inferred that this use of the surname of the adopter
by the adopted child is both an obligation and a right.
Under Article 376 by the Civil Code, "(n)o person can change
his name or surname without judicial authority." The
application for change of name thereunder involves a special
proceeding governed by and conducted under the strictures
of Rule 103 of the Rules of Court and one which involves
substantial changes, with the declared objective of such
judicial proceedings being the prevention of fraud. The
purpose of the statutory procedure authorizing a change of
personal name is simply to have, wherever possible, a
record of the change, and in keeping with the object of the
statute, court to which application is made should normally

make its decree recording such change of name. 13
A change of name is a special proceeding to establish the
status of a person involving his relation with others, that is,
his legal position in, or with regard to, the rest of the
community. It is a proceeding in rem 14 and, as such, strict
compliance with all jurisdictional requirements, particularly
on publication, is essential in order to vest the court with
jurisdiction thereover. 15 For this purpose, the only name that
may be changed is the true or official name recorded in the
civil register. 16
To digress a little for purposes of clarification, the change of
name contemplated under Article 376 and reglementarily
implemented by Rule 103 must not be confused with and
cannot be effected through the summary proceeding
proposed in Article 412 of the some Code, as procedurally
regulated by Rule 108 of the Rules, which refers only to
correction of clerical errors, such as those which are visible
to the eye or obvious to the understanding, or an error made
by a clerk or transcriber, or a mistake in copying or writing, or
some harmless or innocuous change, 17 and not those which
will involve substantial changes. 18
Turning now to the case at bar, we are guided by the
jurisprudential dictum that the State has an interest in the
names borne by individuals and entities for the purpose of
identification, and a change of name is not a matter of right
but of sound judicial discretion, to be exercised in the light of
reasons adduced and the consequences that will likely
follow; 19 it is a privilege which may be granted only upon a
showing of a proper or reasonable cause or compelling
reason therefor. 20
We find unacceptable the assertion of the Solicitor General
that private respondent's allegation of ridicule and
embarrassment due to the use of his present surname is
unsubstantiated.
The testimony of private respondent in the lower court bears
out the existence of valid cause in his bid for change of
name:
ATTY. DUMAMBA:
Q Now, after adoption, when you went to school, what did
you use as your surname?
A "Wong," sir.
Q Now, after you adopted the surname "Wong?" in your
studies, what did you observe?
A I observed that "Wong" as a surname embarrassed me to
my friends and when I go with Chinese friends I cannot talk
Chinese. I am living in Campo Muslim, a Muslim community
but no one can believe that I am Muslim. I have a little

business of Furniture but I have little (sic) customer because
no one believes me that I am Muslim.
Q You want to inform this Honorable Court that this family
name you are using which is "Wong" embarrassed you from
(sic) your friends and relatives and also cause(d) damage to
your business?
Q Stated before this Honorable Court, the purpose why you

wanted to change your name from "Wong" to "Alcala" is so
that to avoid embarrassment because you are a Muslim and
your Muslim relatives think that you are Chinese.
A Yes, sir.
Q Not for the purpose to hide anything or what not?
A Yes sir.
A No, sir. 21
xxx xxx xxx
ATTY. DUMAMBA:
Q Now, considering that according to you, you are
embarrassed because of the family name you are using,
your friends shy away from you and it is a handicap in your
business, what is your desire for the Court to do in order to
help you?
A Change my family name.
Q From "Wong" to what do you want your surname
changed?
The foregoing testimony of private respondent is materially

corroborated by the testimony of private respondent's
adoptive mother:
Q Now, what did you observe to (sic) your son Maximo Wong
after you and your husband adopted him?
A When I adopted him and he used the surname "Wong" I
observed that some of his relatives, cousins and friends
seem to shy away from him and despise him in school that is
why I agreed to change his name. 22
We uphold these observations in the decision of respondent
appellate court:
A "Alcala, Jr.", sir.

xxx xxx xxx
COURT:
Q What is your purpose in changing your family name from
Maximo Wong to Maximo Alcala, Jr.?
A I feel embarrassed to my friends and also to my relatives
and as I said I have a little business of furniture and only a
few customers buying for the fact that they don't believe I am
Muslim.
Cross.
ATTY. SERO:
With the permission of the Honorable Court.
Q Your father's name is Maximo Alcala, Sr., is he still alive?
A Yes, sir.
Q And what does your father say to this proposed changed
(sic) of your name, your family name to your real family
name given to you?
A Yes, sir.
Q They have no objection to it?
A No, sir.
The purpose of the law an allowing of change of name as

contemplated by the provisions of Rule 103 of the Rules of
Court is to give a person an opportunity to improve his
personality and to provide his best interest. (Calderon vs.
Republic, 19 SCRA 721). In granting or denying the petition
for change of name, the question of proper and reasonable
cause is left to the discretion of the court. The evidence
presented need only be satisfactory to the court and not all
the best evidence available is required. (Uy vs. Republic, L22712, Nov. 25, 1965; Nacionales vs. Republic,
L-18067, April 29, 1966; both cases cited in 1 SCRA 843). In
the present case, We believe that the court a quo had
exercised its discretion judiciously when it granted the
petition.
From the testimony of petitioner-appellee and of his adopter
mother Concepcion Ty-Wong, We discern that said appellee
was prompted to file the petition for change of name
because of the embarrassment and ridicule his family name
"Wong" brings in his dealings with his relatives and friends,
he being a Muslim Filipino and living in a Muslim community.
Another cause is his desire to improve his social and
business life. It has been held that in the absence of
prejudice to the state or any individual, a sincere desire to
adopt a Filipino name to erase signs of a former alien
nationality which only hamper(s) social and business life, is a
proper and reasonable cause for change of name (Uy vs.
Republic, L-22712, Nov. 25, 1965, Que Liong Sian vs.
Republic, L-23167, Aug. 17, 1967, 20 SCRA 1074). Justice
dictates that a person should be allowed to improve his
social standing as long as in doing so, he does not cause
prejudice or injury to the interest of the State or other
persons (Calderon vs. Republic, supra). Nothing whatsoever
is shown in the record of this case that such prejudice or

injury to the interest of the state or of other persons would
result in the change of petitioner's name. 23
It bears stressing at this point that to justify a request for
change of name, petitioner must show not only some proper
or compelling reason therefor but also that he will be
prejudiced by the use of his true and official name. 24Among
the grounds for change of name which have been held valid
are: (a) When the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) When the
change results as a legal consequence, as in legitimation; (c)
When the change will avoid confusion; 25 (d) Having
continuously used and been known since childhood by a
Filipino name, unaware of her alien parentage; 26 (e) A
sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudicing
anybody; 27 and
(f)
When
the
surname
causes
embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the
change of name would prejudice public interest. 28
In granting or denying petitions for change of name, the
question of proper and reasonable cause is left to the sound
discretion of the court. The evidence presented need only be
satisfactory to the court and not all the best evidence
available. 29 Summarizing, in special proceedings for change
of name, what is involved is not a mere matter of allowance
or disallowance of the request, but a judicious evaluation of
the sufficiency and propriety of the justifications advanced in
support thereof, mindful of the consequent results in the
event of its grant and with the sole prerogative for making
such determination being lodged in the courts.
While it is true that the statutory fiat under Article 365 of the
Civil Code is to the effect that an adopted child shall bear the
surname of the adopter, it must nevertheless be borne in
mind that the change of the surname of the adopted child is
more an incident rather than the object of adoption
proceedings. 30 The act of adoption fixes a status, viz., that of
parent and child. More technically, it is an act by which
relations of paternity and affiliation are recognized as legally
existing between persons not so related by nature. It has
been defined as the taking into one's family of the child of
another as son or daughter and heir and conferring on it a
title to the rights and privileges of such. The purpose of an
adoption proceeding is to effect this new status of
relationship between the child and its adoptive parents, the
change of name which frequently accompanies adoption
being more an incident than the object of the
proceeding. 31 The welfare of the child is the primary
consideration in the determination of an application for
adoption. On this point, there is unanimous agreement. 32
It is the usual effect of a decree of adoption to transfer from
the natural parents to the adoptive parents the custody of the
child's person, the duty of obedience owing by the child, and
all other legal consequences and incidents of the natural
relation, in the same manner as if the child had been born of
such adoptive parents in lawful wedlock, subject, however, to
such limitations and restrictions as may be by statute
imposed. 33 More specifically under the present state of our

law, the Family Code, superseding the pertinent provisions of
the Civil Code and of the Child and Youth Welfare Code on
the matter, 34 relevantly provides in this wise with regard to
the issue involved in this case:
Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be the
legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship
of parent and child, including the right of the adopted to use
the surname of the adopters; (Emphasis supplied.)
xxx xxx xxx
The Solicitor General maintains the position that to sustain
the change of name would run counter to the behest of
Article 365 of the Civil Code and the ruling in Manuel
vs. Republic 35 that "one should not be allowed to use a
surname which otherwise he is not permitted to employ
under the law," and would set a bad example to other
persons who might also seek a change of their surnames on
lame excuses. 36
While we appreciate the Solicitor General's apprehensions
and concern, we find the same to be unfounded. We do not
believe that by reverting to his old name, private respondent
would then be using a name which he is prohibited by law
from using. True, the law prescribes the surname that a
person may employ; but the law does not go so far as to
unqualifiedly prohibit the use of any other surname, and only
subjects such recourse to the obtention of the requisite
judicial sanction. What the law does not prohibit, it permits.
If we were to follow the argument of the Solicitor General to
its conclusion, then there will never be any possibility or
occasion for any person, regardless of status, to change his
name, in view of the supposed subsequent violation of the
legal imperative on the use of surnames in the event that the
petition is granted. Rule 103 of the Rules of Court would then
be rendered inutile. This could hardly have been the
intendment of the law.
A petition for change of name is a remedy allowed under our
law only by way of exception to the mandatory provisions of
the Civil Code on the use of surnames. The law fixes the
surname that may be used by a person, at least inceptively,
and it may be changed only upon judicial permission granted
in the exercise of sound discretion. Section 1 of Rule 103, in
specifying the parties who may avail of said remedy, uses
the generic term "persons" to signify all natural persons
regardless of status. If a legitimate person may, under certain
judicially accepted exceptional circumstances, petition the
court for a change of name, we do not see any legal basis or
logic in discriminating against the availment of such a
remedy by an adopted child. In other words, Article 365 is
not an exception, much less can it bar resort, to Rule 103.

We are of the view that the circumstances herein obtaining
are within the ambit of the established exceptions and find
merit in private respondent's submission:
True enough, the above testimony of private respondent was

confirmed by his adoptive mother in this manner:
Q How are you related to Maximo Wong?
Rule 103 of the Rules of Court has its primordial purpose

which (State) is to give a person in opportunity to improve his
personality and provide his best interest (Calderon vs.
Republic, 19 SCRA 721). In the instant case, the court a
quo found the petition of Maximo Wong for change of name
justifiable after due hearing, thus its factual findings and
appreciation of testimonies count heavily and need not be
disturbed unless for strong and cogent reasons because the
trial court is in a better position to examine real evidence as
well as to observe the demeanor of the witnesses while
testifying in the case (Baliwag Transit, Inc. vs. CA, 147
SCRA 82). Moreover, the trial court could take judicial notice
of other existing factors in the community where herein
respondent lives which it considers material in its judicious
determination of the case. . . .
Additionally, herein respondent is already of age and as such
he can decide what is best for him. His experience with
regards (sic) his social and business dealings is personal
and it is only him (sic) who can attest to the same. Finding
his predicament's proper remedy is solely through legal
process, herein respondent accordingly filed a petition
pursuant to Rule 103 of the Rules of Court which was
granted by the Court a quo. 37
A My adopted son.
Q He is your adopted son, did your son talk to you when he
filed this petition for change of his surname?
A Yes, he even tried to ask me and I said, alright if you want
to change.
xxx xxx xxx
Q Now, when you agreed to the filing of this petition for
change of name, did you reduce your consent in writing?
A Yes, sir, I agreed also so that his business will prosper
because
he is already Alcila and not Wong because Wong they said is
Chinese. 39
As proof of her assent to the filing of said petition (her
husband having already passed away), Concepcion Ty Vda.
de Wong executed an affidavit in Cotabato City on May 27,
1985, with these textual declarations:
Besides, we have faith in the circumspection of our lower

courts and that, in the exercise of their discretion, said courts
shall consider petitions for change of name only on cogent
and meritorious grounds as would justify the granting of such
applications. We do not expect our trial courts to cater or
give in to the whim or caprice of an applicant, aside from the
fact that there is always the safeguard and corrective
interdiction of appellate review.
That I am the same and identical person, who is the

surviving adapted (sic) parent of Maximo Wong.
It is not fair to construe the desired reversion of private

respondent to the use of the name of his parents by nature
as cross ingratitude. To go by the Solicitor General's
suggestion that private respondent should have his adoption
revoked if he wants to use the surname of his natural father
would be to exact too clear a toll for making use of an
appropriate and valid remedy available under the law.
That I pity my son who is often rediculed (sic) by his friends

and relatives because of his family name Wong, hence, in
order not to humper (sic) his social and business life in the
future, I am voluntarily and of my own free will without being
forced, coerced, or intimidated give (sic) my consent to his
desire to change his desire to change his surname without
affecting however the legal adoption granted by the Court on
September 9, 1967, making him as one of my legal and
compulsory heir (sic).
Herein private respondent, before he filed the petition for

change of name, asked for his adoptive mother's permission
to do so:
Q Now, in filing this petition for change of surname, you had
talked with your adopted mother?
A Yes, sir.
Q Did you ask permission from her whether she wants you to
change the surname?
A Yes, sir. 38
That I personally discovered it myself from the time my

adapted (sic) son Maximo used the surname of my late
husband Wong, his relatives and childhood friends shy away
from him because he is branded as a son of a chinese which
is different from them whose parents are muslim Filipinos;
That I am executing this affidavit to attest to the truth of all

the above mentioned facts and for all legal intent (sic) and
purposes. 40
There could be no other plausible reason for private
respondent to first secure has adoptive mother's consent
before resorting to the questioned legal recourse other than
the parental respect and reverence which is owed by and to
be expected of a dutiful child. If private respondent was such
an ingrate, as the Solicitor General would have us believe,
he would not have bothered to seek his adoptive mother's
counsel. In the same breath, had his adoptive mother

regarded him as an ungrateful adoptee, she would not have
executed the affidavit above quoted, much less testify in his
behalf at the hearing of his petition.
Moreover, worthy of note is the fact that private respondent's
adoptive mother emphasized that she executed the above
affidavit "without affecting the legal adoption granted by the
Court on September 9, 1967, making him as one of my legal
and compulsory heir(s)." This is incontrovertible proof that
she never entertained any misgivings or reservations with
respect to her consent to his petition. This likewise dispels
any possible confusion as to private respondent's legal
status or adoptive paternity and his successional rights.
Concordantly, we have heretofore held that a change of
name does not define or effect a change in one's existing
family relations or in the rights and duties flowing therefrom.
It does not alter one's legal capacity, civil status or
citizenship; what is altered is only the name. 41
WHEREFORE, the petition is DENIED and the decision of
respondent Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.
IN RE: PETITION OF JULIAN LIN CARULASAN WANG
SECOND DIVISION
[G.R. No. 159966. March 30, 2005]
IN RE: PETITION FOR CHANGE OF NAME AND/OR

CORRECTION/CANCELLATION OF ENTRY IN
CIVIL REGISTRY OF JULIAN LIN CARULASAN
WANG also known as JULIAN LIN WANG, to be
amended/corrected as JULIAN LIN WANG,
JULIAN LIN WANG, duly represented by his
mother ANNA LISA WANG, petitioner, vs. CEBU
CITY CIVIL REGISTRAR, duly represented by
the Registrar OSCAR B. MOLO, respondent.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan
Wang, a minor, represented by his mother Anna Lisa Wang,
filed a petition dated 19 September 2002 for change of name
and/or correction/cancellation of entry in the Civil Registry of
Julian Lin Carulasan Wang. Petitioner sought to drop his
middle name and have his registered name changed from
Julian Lin Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings

Case No. 11458 CEB and raffled to the Regional Trial Court
(RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on
February 20, 1998 to parents Anna Lisa Wang and Sing-Foe
Wang who were then not yet married to each other. When
his parents subsequently got married on September 22,
1998, ...they executed a deed of legitimation of their son so
that the childs name was changed from Julian Lin Carulasan
to Julian Lin Carulasan Wang.
The parents of Julian Lin Carulasan Wang plan to stay in
Singapore for a long time because they will let him study
there together with his sister named Wang Mei Jasmine who
was born in Singapore. Since in Singapore middle names
or the maiden surname of the mother are not carried in a
persons name, they anticipate that Julian Lin Carulasan
Wang will be discriminated against because of his current
registered name which carries a middle name. Julian and
his sister might also be asking whether they are brother and
sister since they have different surnames. Carulasan sounds
funny in Singapores Mandarin language since they do not
have the letter R but if there is, they pronounce it as L. It
is for these reasons that the name of Julian Lin Carulasan
Wang is requested to be changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying
the petition.[2] The trial court found that the reason given for
the change of name sought in the petitionthat is, that
petitioner Julian may be discriminated against when studies
in Singapore because of his middle namedid not fall within
the grounds recognized by law. The trial court ruled that the
change sought is merely for the convenience of the child.
Since the State has an interest in the name of a person,
names cannot be changed to suit the convenience of the
bearers. Under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of the father
and the mother, and there is no reason why this right should
now be taken from petitioner Julian, considering that he is
still a minor. The trial court added that when petitioner Julian
reaches the age of majority, he could then decide whether he
will change his name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the
decision but this was denied in a resolution dated 20 May
2004.[4] The trial court maintained that the Singaporean
practice of not carrying a middle name does not justify the
dropping of the middle name of a legitimate Filipino child
who intends to study there. The dropping of the middle
name would be tantamount to giving due recognition to or
application of the laws of Singapore instead of Philippine law
which is controlling. That the change of name would not
prejudice public interest or would not be for a fraudulent
purpose would not suffice to grant the petition if the reason
for the change of name is itself not reasonable.[5]
Petitioner then filed this Petition for Review on
Certiorari (Under Rule 45)[6] arguing that the trial court has
decided a question of substance not theretofore determined

by the Court, that is: whether or not dropping the middle
name of a minor child is contrary to Article 174 [7] of the
Family Code. Petitioner contends that [W]ith globalization
and mixed marriages, there is a need for the Supreme Court
to rule on the matter of dropping of family name for a child to
adjust to his new environment, for consistency and harmony
among siblings, taking into consideration the best interest of
the child.[8] It is argued that convenience of the child is a
valid reason for changing the name as long as it will not
prejudice the State and others. Petitioner points out that the
middle name Carulasan will cause him undue
embarrassment and the difficulty in writing or pronouncing it
will be an obstacle to his social acceptance and integration in
the Singaporean community. Petitioner also alleges that it is
error for the trial court to have denied the petition for change
of name until he had reached the age of majority for him to
decide the name to use, contrary to previous cases[9] decided
by this Court that allowed a minor to petition for change of
name.[10]
The Court required the Office of the Solicitor General
(OSG) to comment on the petition. The OSG filed
its Comment[11] positing that the trial court correctly denied
the petition for change of name. The OSG argues that under
Article 174 of the Family Code, legitimate children have the
right to bear the surnames of their father and mother, and
such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no
showing that the dropping of the middle name Carulasan is
in the best interest of petitioner, since mere convenience is
not sufficient to support a petition for change of name and/or
cancellation of entry.[12] The OSG also adds that the
petitioner has not shown any compelling reason to justify the
change of name or the dropping of the middle name, for that
matter. Petitioners allegation that the continued use of the
middle name may result in confusion and difficulty is
allegedly more imaginary than real. The OSG reiterates its
argument raised before the trial court that the dropping of the
childs middle name could only trigger much deeper inquiries
regarding the true parentage of petitioner. Hence, while
petitioner Julian has a sister named Jasmine Wei Wang,
there is no confusion since both use the surname of their
father, Wang. Even assuming that it is customary in
Singapore to drop the middle name, it has also not been
shown that the use of such middle name is actually
proscribed by Singaporean law.[13]
We affirm the decision of the trial court. The petition
should be denied.
The Court has had occasion to express the view that
the State has an interest in the names borne by individuals
and entities for purposes of identification, and that a change
of name is a privilege and not a right, so that before a person
can be authorized to change his name given him either in his
certificate of birth or civil registry, he must show proper or
reasonable cause, or any compelling reason which may
justify such change. Otherwise, the request should be
denied.[14]
The touchstone for the grant of a change of name is
that there be proper and reasonable cause for which the
change is sought.[15] To justify a request for change of name,
petitioner must show not only some proper or compelling

reason therefore but also that he will be prejudiced by the
use of his true and official name. Among the grounds for
change of name which have been held valid are: (a) when
the name is ridiculous, dishonorable or extremely difficult to
write or pronounce; (b) when the change results as a legal
consequence, as in legitimation; (c) when the change will
avoid confusion; (d) when one has continuously used and
been known since childhood by a Filipino name, and was
unaware of alien parentage; (e) a sincere desire to adopt a
Filipino name to erase signs of former alienage, all in good
faith and without prejudicing anybody; and (f) when the
surname causes embarrassment and there is no showing
that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public
interest.[16]
In granting or denying petitions for change of name, the
question of proper and reasonable cause is left to the sound
discretion of the court. The evidence presented need only be
satisfactory to the court and not all the best evidence
available. What is involved is not a mere matter of
allowance or disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of the justifications
advanced in support thereof, mindful of the consequent
results in the event of its grant and with the sole prerogative
for making such determination being lodged in the courts.[17]
The petition before us is unlike other petitions for
change of name, as it does not simply seek to change the
name of the minor petitioner and adopt another, but instead
seeks to drop the middle name altogether. Decided cases in
this jurisdiction involving petitions for change of name usually
deal with requests for change of surname. There are only a
handful of cases involving requests for change of the given
name[18] and none on requests for changing or dropping of
the middle name. Does the law allow one to drop the middle
name from his registered name? We have to answer in the
negative.
A discussion on the legal significance of a persons
name is relevant at this point. We quote, thus:
For all practical and legal purposes, a man's name is the
designation by which he is known and called in the
community in which he lives and is best known. It is defined
as the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or
appellation which he bears for the convenience of the world
at large addressing him, or in speaking of or dealing with
him. Names are used merely as one method of indicating the
identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it
has frequently been held that, when identity is certain, a
variance in, or misspelling of, the name is immaterial.
The names of individuals usually have two parts: the given
name or proper name, and the surname or family name. The
at birth or baptism, to distinguish him from other individuals.
The name or family name is that which identifies the family to
which he belongs and is continued from parent to child. The

given name may be freely selected by the parents for the
child; but the surname to which the child is entitled is fixed by
law.
A name is said to have the following characteristics: (1) It is
absolute, intended to protect the individual from being
confused with others. (2) It is obligatory in certain respects,
for nobody can be without a name. (3) It is fixed,
unchangeable, or immutable, at least at the start, and may
be changed only for good cause and by judicial proceedings.
(4) It is outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or mortis
causa. (5) It is imprescriptible.[19]
This citation does not make any reference to middle
names, but this does not mean that middle names have no
practical or legal significance. Middle names serve to
identify the maternal lineage or filiation of a person as well as
further distinguish him from others who may have the same
given name and surname as he has.
Our laws on the use of surnames state that legitimate
and legitimated children shall principally use the surname of
the father.[20] The Family Code gives legitimate children the
right to bear the surnames of the father and the mother,
[21]
while illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in which
case they may bear the fathers surname.[22]
Applying these laws, an illegitimate child whose filiation
is not recognized by the father bears only a given name and
his mothers surname, and does not have a middle name.
The name of the unrecognized illegitimate child therefore
identifies him as such. It is only when the illegitimate child is
legitimated by the subsequent marriage of his parents or
acknowledged by the father in a public document or private
handwritten instrument that he bears both his mothers
surname as his middle name and his fathers surname as his
surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the
birth of such individuals requires that the middle name be
indicated in the certificate. The registered name of a
legitimate, legitimated and recognized illegitimate child thus
contains a given or proper name, a middle name, and a
surname.
Petitioner theorizes that it would be for his best interest
to drop his middle name as this would help him to adjust
more easily to and integrate himself into Singaporean
society.
In
support,
he
cites Oshita
v.
Republic[23] and Calderon v. Republic,[24] which, however, are
not apropos both.
In Oshita, the petitioner therein, a legitimate daughter
of a Filipino mother, Buena Bartolome, and a Japanese
father, Kishimatsu Oshita, sought to change her name from
Antonina B. Oshita to Antonina Bartolome. The Court
granted her petition based on the following considerations:
she had elected Philippine citizenship upon reaching the age
of majority; her other siblings who had also elected
Philippine citizenship have been using their mothers
surname; she was embarrassed to bear a Japanese

surname there still being ill feeling against the Japanese due
to the last World War; and there was no showing that the
change of name was motivated by a fraudulent purpose or
that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes
Josefina del Prado, an illegitimate minor child acting through
her mother who filed the petition in her behalf, to change her
name to Gertudes Josefina Calderon, taking the surname of
her stepfather, Romeo C. Calderon, her mothers husband.
The Court held that a petition for change of name of an infant
should be granted where to do is clearly for the best interest
of the child. The Court took into consideration the
opportunity provided for the minor petitioner to eliminate the
stigma of illegitimacy which she would carry if she continued
to use the surname of her illegitimate father. The Court
pronounced that justice dictates that every person be
allowed to avail of any opportunity to improve his social
standing as long as doing so he does not cause prejudice or
injury to the interests of the State or of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that
although Article 174 of the Family Code gives the legitimate
child the right to use the surnames of the father and the
mother, it is not mandatory such that the child could use only
one family name, even the family name of the mother.
In Alfon, the petitioner therein, the legitimate daughter of
Filomeno Duterte and Estrella Alfon, sought to change her
name from Maria Estrella Veronica Primitiva Duterte (her
name as registered in the Local Civil Registry) to Estrella S.
Alfon (the name she had been using since childhood, in her
school records and in her voters registration). The trial court
denied her petition but this Court overturned the denial,
ruling that while Article 364 of the Civil Code states that she,
as a legitimate child, should principally use the surname of
her father, there is no legal obstacle for her to choose to use
the surname of herm other to which she is entitled. In
addition, the Court found that there was ample justification to
grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the
change of his name against the standards set in the cases
he cites to support his contention would show that his
justification is amorphous, to say the least, and could not
warrant favorable action on his petition.
The factual antecedents and unique circumstances of
the cited cases are not at all analogous to the case at bar.
The instant case is clearly distinguishable from the cases
of Oshita andAlfon, where the petitioners were already of
age when they filed their petitions for change of name. Being
of age, they are considered to have exercised their discretion
and judgment, fully knowing the effects of their decision to
change their surnames. It can also be unmistakably
observed that the reason for the grant of the petitions for
change of name in these two cases was the presence of
reasonable or compelling grounds therefore. The Court,
in Oshita, recognized the tangible animosity most Filipinos
had during that time against the Japanese as a result of
World War II, in addition to the fact of therein petitioners
election of Philippine citizenship. In Alfon, the Court granted
the petition since the petitioner had been known since

childhood by a name different from her registered name and
she had not used her registered name in her school records
and voters registration records; thus, denying the petition
would only result to confusion.
Calderon, on the other hand, granted the petition for
change of name filed by a mother in behalf of her illegitimate
minor child. Petitioner cites this case to buttress his
argument that he does not have to reach the age of majority
to petition for change of name. However, it is manifest
in Calderon that the Court, in granting the petition for change
of name, gave paramount consideration to the best interests
of the minor petitioner therein.
In the case at bar, the only reason advanced by
petitioner for the dropping his middle name is convenience.
However, how such change of name would make his
integration into Singaporean society easier and convenient is
not clearly established. That the continued use of his middle
name would cause confusion and difficulty does not
constitute proper and reasonable cause to drop it from his
registered complete name.
In addition, petitioner is only a minor. Considering the
nebulous foundation on which his petition for change of
name is based, it is best that the matter of change of his
name be left to his judgment and discretion when he reaches
the age of majority.[26] As he is of tender age, he may not yet
understand and appreciate the value of the change of his
name and granting of the same at this point may just
prejudice him in his rights under our laws.
WHEREFORE, in view of the foregoing, the Petition for
Review on Certiorari is DENIED.
SO ORDERED.
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural
father, use the surname of her natural mother as her
middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein
petitioner, filed a petition[1] to adopt his minor illegitimate
child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26, 1994;
[2]
that her mother is Gemma Astorga Garcia; that
Stephanie has been using her mothers middle name and
surname; and that he is now a widower and qualified to be
her adopting parent. He prayed that Stephanies middle
name Astorga be changed to Garcia, her mothers
surname, and that her surname Garcia be changed to
Catindig, his surname.
On March 23, 2001,[3] the trial court rendered the
assailed Decision granting the adoption, thus:
After a careful consideration of the evidence presented by
the petitioner, and in the absence of any opposition to the
petition, this Court finds that the petitioner possesses all the
qualifications and none of the disqualification provided for by
law as an adoptive parent, and that as such he is qualified to
maintain, care for and educate the child to be adopted; that
the grant of this petition would redound to the best interest
and welfare of the minor Stephanie Nathy Astorga Garcia.
The Court further holds that the petitioners care and custody
of the child since her birth up to the present constitute more
than enough compliance with the requirement of Article 35 of
Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the
same is GRANTED. Henceforth, Stephanie Nathy Astorga
Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil
purposes, shall henceforth be the petitioners legitimate child
and legal heir. Pursuant to Article 189 of the Family Code of
the Philippines, the minor shall be known as STEPHANIE
NATHY CATINDIG.
IN THE MATTER OF THE ADOPTION OF NATHY

ASTORGA GARCIA
THIRD DIVISION
Upon finality of this Decision, let the same be entered in the

Local Civil Registrar concerned pursuant to Rule 99 of the
Rules of Court.
Let copy of this Decision be furnished the National Statistics
Office for record purposes.
[G.R. No. 148311. March 31, 2005]
IN THE MATTER OF THE ADOPTION OF STEPHANIE

NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
SO ORDERED.[4]
On April 20, 2001, petitioner filed a motion for
clarification and/or reconsideration[5] praying that Stephanie
should be allowed to use the surname of her natural mother
(GARCIA) as her middle name.
On May 28, 2001,[6] the trial court denied petitioners
motion for reconsideration holding that there is no law or

jurisprudence allowing an adopted child to use the surname
of his biological mother as his middle name.
Hence, the present petition raising the issue of whether
an illegitimate child may use the surname of her mother as
her middle name when she is subsequently adopted by her
natural father.
Petitioner submits that the trial court erred in depriving
Stephanie of a middle name as a consequence of adoption
because: (1) there is no law prohibiting an adopted child
from having a middle name in case there is only one
adopting parent; (2) it is customary for every Filipino to have
as middle name the surname of the mother; (3) the middle
name or initial is a part of the name of a person; (4) adoption
is for the benefit and best interest of the adopted child,
hence, her right to bear a proper name should not be
violated; (5) permitting Stephanie to use the middle name
Garcia (her mothers surname) avoids the stigma of her
illegitimacy; and; (6) her continued use of Garcia as her
middle name is not opposed by either the Catindig or Garcia
families.
The Republic, through the Office of the Solicitor
General (OSG), agrees with petitioner that Stephanie should
be permitted to use, as her middle name, the surname of her
natural mother for the following reasons:
First, it is necessary to preserve and maintain
Stephanies filiation with her natural mother because under
Article 189 of the Family Code, she remains to be an
intestate heir of the latter. Thus, to prevent any confusion
and needless hardship in the future, her relationship or proof
of that relationship with her natural mother should be
maintained.
Second, there is no law expressly prohibiting Stephanie
to use the surname of her natural mother as her middle
name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle
name, which is ordinarily the surname of the mother. This
custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that the
initial or surname of the mother should immediately precede
the surname of the father so that the second name, if any,
will be before the surname of the mother.[7]
The name of an individual has two parts: (1) the given

or proper name and (2) the surname or family name. The
at birth or at baptism, to distinguish him from other
individuals. The surname or family name is that which
identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected
by the parents for the child, but the surname to which the
child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the
substantive rules which regulate the use of surname[10] of an
individual whatever may be his status in life, i.e., whether he
may be legitimate or illegitimate, an adopted child, a married
woman or a previously married woman, or a widow, thus:
Art. 364. Legitimate and legitimated children shall principally
use the surname of the father.
Art. 365. An adopted child shall bear the surname of the
adopter.
xxx
Art. 369. Children conceived before the decree annulling a
voidable marriage shall principally use the surname of the
father.
Art.
370. A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating
that she is his wife, such as Mrs.
Art. 371. In case of annulment of marriage, and the wife is
the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may
resume her maiden name and surname. However, she may
choose to continue employing her former husband's
surname, unless:
We find merit in the petition.

(1) The court decrees otherwise, or
Use Of Surname Is Fixed By Law
(2) She or the former husband is married again to another

person.
For all practical and legal purposes, a man's name is

the designation by which he is known and called in the
community in which he lives and is best known. It is
defined as the word or combination of words by which a
person is distinguished from other individuals and, also, as
the label or appellation which he bears for the convenience
of the world at large addressing him, or in speaking of or
dealing with him.[8] It is both of personal as well as public
interest that every person must have a name.
Art. 372. When legal separation has been granted, the wife
shall continue using her name and surname employed
before the legal separation.
Art.
373.
A widow
may
use
the
deceased
husband's surname as though he were still living, in
accordance with Article 370.

Art. 374. In case of identity of names and surnames, the
younger person shall be obliged to use such additional name
or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between
ascendants and descendants, the word Junior can be used
only by a son. Grandsons and other direct male descendants
shall either:
he wants to, the child may also use the surname of the
mother.
Justice Puno posed the question: If the child chooses to use
the surname of the mother, how will his name be written?
Justice Caguioa replied that it is up to him but that his point
is that it should be mandatory that the child uses the
surname of the father and permissive in the case of the
surname of the mother.
(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.
x x x
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law
regulating the use of a middle name. Even Article 176[11] of
the Family Code, as amended by Republic Act No. 9255,
otherwise known as An Act Allowing Illegitimate Children To
Use The Surname Of Their Father, is silent as to what
middle name a child may use.
The middle name or the mothers surname is only
considered in Article 375(1), quoted above, in case there is
identity of names and surnames between ascendants and
descendants, in which case, the middle name or the
mothers surname shall be added.
Notably, the law is likewise silent as to what middle
name an adoptee may use. Article 365 of the Civil Code
merely provides that an adopted child shall bear the
surname of the adopter. Also, Article 189 of the Family
Code, enumerating the legal effects of adoption, is likewise
silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be
a legitimate child of the adopters and both shall acquire
the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the
adopted to use the surname of the adopters;
x x x
However, as correctly pointed out by the OSG, the
members of the Civil Code and Family Law Committees that
drafted the Family Code recognized the Filipino custom of
adding the surname of the childs mother as his middle
name. In the Minutes of the Joint Meeting of the Civil Code
and Family Law Committees, the members approved the
suggestion thatthe initial or surname of the mother
should immediately precede the surname of the father,
thus
Justice Caguioa commented that there is a difference
between the use by the wife of the surname and that of the
child because the fathers surname indicates the family to
which he belongs, for which reason he would insist on
the use of the fathers surname by the child but that, if
Prof. Baviera remarked that Justice Caguioas point is

covered by the present Article 364, which reads:
Legitimate and legitimated children shall principally use the
surname of the father.
Justice Puno pointed out that many names change through
no choice of the person himself precisely because of this
misunderstanding. He then cited the following example:
Alfonso Ponce Enriles correct surname is Ponce since the
mothers surname is Enrile but everybody calls him Atty.
Enrile. Justice Jose Gutierrez Davids family name is
Gutierrez and his mothers surname is David but they all call
him Justice David.
Justice Caguioa suggested that the proposed Article
(12) be modified to the effect that it shall be mandatory
on the child to use the surname of the father but he may
use the surname of the mother by way of an initial or a
middle name. Prof. Balane stated that they take note of this
for inclusion in the Chapter on Use of Surnames since in the
proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the
appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification
suggested by Justice Caguioa that the surname of the father
should always be last because there are so many traditions
like the American tradition where they like to use their
second given name and the Latin tradition, which is also
followed by the Chinese wherein they even include the Clan
name.
xxx
Justice Puno suggested that they agree in principle that
in the Chapter on the Use of Surnames, they should say
that initial or surname of the mother should immediately
precede the surname of the father so that the second
name, if any, will be before the surname of the mother.
Prof. Balane added that this is really the Filipino way.
The Committee approved the suggestion.[12](Emphasis
supplied)
In the case of an adopted child, the law provides that
the adopted shall bear the surname of the
adopters.[13] Again, it is silent whether he can use a middle

name. What it only expressly allows, as a matter of right
and obligation, is for the adoptee to bear the surname of the
adopter, upon issuance of the decree of adoption.[14]
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child,
whether related or not to the adopter, possess in general, the
rights accorded to a legitimate child.[15] It is a juridical act, a
proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate
paternity and filiation.[16] The modern trend is to consider
adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows the
child with a legitimate status.[17] This was, indeed, confirmed
in 1989, when thePhilippines, as a State Party to the
Convention of the Rights of the Child initiated by the
United Nations, accepted the principle that adoption is
impressed with social and moral responsibility, and that
its underlying intent is geared to favor the adopted child.
[18]
Republic Act No. 8552, otherwise known as the
Domestic Adoption Act of 1998,[19]secures these rights and
privileges for the adopted.[20]
One of the effects of adoption is that the adopted is
deemed to be a legitimate child of the adopter for all intents
and purposes pursuant to Article 189 [21] of the Family Code
and Section 17[22] Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it
follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without
discrimination of any kind, including the right to bear the
surname of her father and her mother, as discussed
above. This is consistent with the intention of the members
of the Civil Code and Family Law Committees as earlier
discussed. In fact, it is a Filipino custom that the initial or
surname of the mother should immediately precede the
surname of the father.
Adoption
It is a settled rule that adoption statutes, being humane
and salutary, should be liberally construed to carry out the
beneficent purposes of adoption.[25] The interests and welfare
of the adopted child are of primary and paramount
consideration,[26] hence, every reasonable intendment should
be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it
is presumed that the lawmaking body intended right and
justice to prevail.
This provision, according to the Code Commission, is
necessary so that it may tip the scales in favor of right and
justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which
may apparently be authorized by some way of interpreting
the law.[28]
Hence, since there is no law prohibiting an illegitimate
child adopted by her natural father, like Stephanie, to use,
as middle name her mothers surname, we find no reason
why she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed
Decision is partly MODIFIED in the sense that Stephanie
should be allowed to use her mothers surname GARCIA
as her middle name.
Let the corresponding entry of her correct and complete
name be entered in the decree of adoption.
SO ORDERED.
Additionally, as aptly stated by both parties, Stephanies

continued use of her mothers surname (Garcia) as her
middle name will maintain her maternal lineage. It is to be
noted that Article 189(3) of the Family Code and Section
18[24], Article V of RA 8552 (law on adoption) provide that the
adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her
hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother
are living together in the house built by petitioner for them at
390 Tumana, San Jose, Baliuag, Bulacan. Petitioner
provides for all their needs. Stephanie is closely attached to
both her mother and father. She calls them Mama and
Papa. Indeed, they are one normal happy family. Hence,
to allow Stephanie to use her mothers surname as her
middle name will not only sustain her continued loving
relationship with her mother but will also eliminate the stigma
of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
REPUBLIC v. CAPOTE
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 157043
February 2, 2007

vs.
TRINIDAD R.A. CAPOTE, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari 1 seeks to set aside the
Court of Appeals (CA) decision2 dated January 13, 2003 in
CA-G.R. CV No. 66128, which affirmed the decision of the
Regional Trial Court (RTC), Branch 23 of San Juan,
Southern Leyte dated September 14, 1999 granting a
petition for change of name.
Respondent Trinidad R. A. Capote filed a petition for change
of name of her ward from Giovanni N. Gallamaso toGiovanni
Nadores on September 9, 1998. In Special Proceeding No.
R-481,3 Capote as Giovannis guardian ad litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married,
while minor GIOVANNI N. GALLAMASO, is also a Filipino
citizen, sixteen (16) years old and both are residents of San
Juan, Southern Leyte where they can be served with
summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor
Giovanni N. Gallamaso by virtue of a court order in Special
[Proc.] No. R-459, dated [August 18, 1998] xxx xxx
authorizing her to file in court a petition for change of name
of said minor in accordance with the desire of his mother
[who is residing and working abroad];
7. [Giovanni] is now fully aware of how he stands with his

father and he desires to have his surname changed to that of
his mothers surname;
8. [Giovannis] mother might eventually petition [him] to join
her in the United States and [his] continued use of the
surname Gallamaso, the surname of his natural father, may
complicate [his] status as natural child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to
GIOVANNI NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil
registrar to effect the change of name on Giovannis birth
certificate. Having found respondents petition sufficient in
form and substance, the trial court gave due course to the
petition.5 Publication of the petition in a newspaper of
general circulation in the province of Southern Leyte once a
week for three consecutive weeks was likewise
ordered.6 The trial court also directed that the local civil
registrar be notified and that the Office of the Solicitor
General (OSG) be sent a copy of the petition and order.7
Since there was no opposition to the petition, respondent
moved for leave of court to present her evidence ex
parte before a court-appointed commissioner. The OSG,
acting through the Provincial Prosecutor, did not object;
hence, the lower court granted the motion.
After the reception of evidence, the trial court rendered a
decision ordering the change of name from Giovanni N.
Gallamaso to Giovanni Nadores.8
3. Both [respondent] and minor have permanently resided in

San Juan, Southern Leyte, Philippines for more than fifteen
(15) years prior to the filing of this instant petition, the former
since 1970 while the latter since his birth [in 1982];
From this decision, petitioner Republic of the Philippines,

through the OSG, filed an appeal with a lone assignment of
error: the court a quo erred in granting the petition in a
summary proceeding.
4. The minor was left under the care of [respondent] since he

was yet nine (9) years old up to the present;
Ruling that the proceedings were sufficiently adversarial in

nature as required, the CA affirmed the RTC decision
ordering the change of name.9
5. Minor GIOVANNI N. GALLAMASO is the illegitimate

natural child of Corazon P. Nadores and Diosdado
Gallamaso. [He] was born on July 9, 1982 [,] prior to the
effectivity of the New Family Code and as such, his mother
used the surname of the natural father despite the absence
of marriage between them; and [Giovanni] has been known
by that name since birth [as per his birth certificate registered
at the Local Civil Register of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni]
was born and up to the present, failed to take up his
responsibilities [to him] on matters of financial, physical,
emotional and spiritual concerns. [Giovannis pleas] for
attention along that line [fell] on deaf ears xxx xxx xxx;
In this petition, the Republic contends that the CA erred in

affirming the trial courts decision which granted the petition
for change of name despite the non-joinder of indispensable
parties.10 Petitioner cites Republic of the Philippines v.
Labrador11 and claims that the purported parents and all
other persons who may be adversely affected by the childs
change of name should have been made respondents to
make the proceeding adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for
individualization which serves to distinguish him from all
others; this symbol is his name."13 Understandably, therefore,
no person can change his name or surname without judicial

authority.14 This is a reasonable requirement for those
seeking such change because a persons name necessarily
affects his identity, interests and interactions. The State must
be involved in the process and decision to change the name
of any of its citizens.
The Rules of Court provides the requirements and procedure
for change of name. Here, the appropriate remedy is
covered by Rule 103,15 a separate and distinct proceeding
from Rule 108 on mere cancellation and correction of entries
in the civil registry (usually dealing only with innocuous or
clerical errors thereon).16
The issue of non-joinder of alleged indispensable parties in
the action before the court a quo is intertwined with the
nature of the proceedings there. The point is whether the
proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the issues
of a case since the reason for their conduct is expediency.
This, according to petitioner, is not sufficient to deal with
substantial or contentious issues allegedly resulting from a
change of name, meaning, legitimacy as well as
successional rights.17 Such issues are ventilated only in
adversarial proceedings wherein all interested parties are
impleaded and due process is observed.18
When Giovanni was born in 1982 (prior to the enactment and
effectivity of the Family Code of the Philippines), 19the
pertinent provision of the Civil Code then as regards his use
of a surname, read:
Art. 366. A natural child acknowledged by both parents shall
principally use the surname of the father. If recognized by
only one of the parents, a natural child shall employ the
surname of the recognizing parent. (emphasis ours)
Based on this provision, Giovanni should have carried his
mothers surname from birth. The records do not reveal any
act or intention on the part of Giovannis putative father to
actually recognize him. Meanwhile, according to the Family
Code which repealed, among others, Article 366 of the Civil
Code:
Art. 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code. xxx
xxx xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change of
Name and/or Correction/Cancellation of Entry in Civil
Registry of Julian Lin Carulasan Wang20 is enlightening:
Our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of the
father. The Family Code gives legitimate children the right to
bear the surnames of the father and the mother, while
illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case
they may bear the fathers surname.
Applying these laws, an illegitimate child whose filiation is

not recognized by the father bears only a given name
and his mother surname, and does not have a middle
name. The name of the unrecognized illegitimate child
therefore identifies him as such. It is only when the
illegitimate child is legitimated by the subsequent marriage of
his parents or acknowledged by the father in a public
document or private handwritten instrument that he bears
both his mothers surname as his middle name and his
fathers surname as his surname, reflecting his status as a
legitimated child or an acknowledged child.1awphi1.net21
The foregoing discussion establishes the significant
connection of a persons name to his identity, his status in
relation to his parents and his successional rights as a
legitimate or illegitimate child. For sure, these matters should
not be taken lightly as to deprive those who may, in any way,
be affected by the right to present evidence in favor of or
against such change.
The law and facts obtaining here favor Giovannis petition.
Giovanni availed of the proper remedy, a petition for change
of name under Rule 103 of the Rules of Court, and complied
with all the procedural requirements. After hearing, the trial
court found (and the appellate court affirmed) that the
evidence presented during the hearing of Giovannis petition
sufficiently established that, under Art. 176 of the Civil Code,
Giovanni is entitled to change his name as he was never
recognized by his father while his mother has always
recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is
also to his best interest as it will facilitate his mothers
intended petition to have him join her in the United States.
This Court will not stand in the way of the reunification of
mother and son.
Moreover, it is noteworthy that the cases cited by
petitioner22 in support of its position deal with cancellation or
correction of entries in the civil registry, a proceeding
separate and distinct from the special proceedings for
change of name. Those cases deal with the application and
interpretation of Rule 108 of the Rules of Court while this
case was correctly filed under Rule 103. Thus, the cases
cited by petitioner are irrelevant and have no bearing on
respondents case. While the OSG is correct in its stance
that the proceedings for change of name should be
adversarial, the OSG cannot void the proceedings in the trial
court on account of its own failure to participate therein. As
the CA correctly ruled:
The OSG is correct in stating that a petition for change of
name must be heard in an adversarial proceeding. Unlike
petitions for the cancellation or correction of clerical errors in
entries in the civil registry under Rule 108 of the Rules of
Court, a petition for change of name under Rule 103 cannot
be decided through a summary proceeding. There is no
doubt that this petition does not fall under Rule 108 for it is
not alleged that the entry in the civil registry suffers from
clerical or typographical errors. The relief sought clearly goes
beyond correcting erroneous entries in the civil registry,

although by granting the petition, the result is the same in
that a corresponding change in the entry is also required to
reflect the change in name. In this regard, [appellee]
Capote complied with the requirement for an adversarial
proceeding by posting in a newspaper of general
circulation notice of the filing of the petition. The lower
court also furnished the OSG a copy thereof. Despite the
notice, no one came forward to oppose the petition
including the OSG. The fact that no one opposed the
petition did not deprive the court of its jurisdiction to
hear the same nor does it make the proceeding less
adversarial in nature. The lower court is still expected to
exercise its judgment to determine whether the petition is
meritorious or not and not merely accept as true the
arguments propounded. Considering that the OSG neither
opposed the petition nor the motion to present its
evidence ex parte when it had the opportunity to do so, it
cannot now complain that the proceedings in the lower court
were not adversarial enough.23 (emphasis supplied)
THE HONORABLE SECRETARY OF FOREIGN

AFFAIRS, Respondent.
A proceeding is adversarial where the party seeking relief

has given legal warning to the other party and afforded the
latter an opportunity to contest it.24 Respondent gave notice
of the petition through publication as required by the
rules.25 With this, all interested parties were deemed notified
and the whole world considered bound by the judgment
therein. In addition, the trial court gave due notice to the
OSG by serving a copy of the petition on it. Thus, all the
requirements to make a proceeding adversarial were
satisfied when all interested parties, including petitioner as
represented by the OSG, were afforded the opportunity to
contest the petition.
Petitioner Maria Virginia V. Remo is a married Filipino citizen

whose Philippine passport was then expiring on 27 October
2000. Petitioner being married to Francisco R. Rallonza, the
following entries appear in her passport: "Rallonza" as her
surname, "Maria Virginia" as her given name, and "Remo" as
her middle name. Prior to the expiry of the validity of her
passport, petitioner, whose marriage still subsists, applied for
the renewal of her passport with the Department of Foreign
Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request
to revert to her maiden name and surname in the
replacement passport.
WHEREFORE, the petition is hereby DENIED and the

January 13, 2003 decision of the Court of Appeals in CAG.R. CV No. 66128 AFFIRMED.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 of the 27 May 2005
Decision2 and 2 August 2005 Resolution3 of the Court of
Appeals in CA-G.R. SP No. 87710. The Court of Appeals
affirmed the decision of the Office of the President, which in
turn affirmed the decision of the Secretary of Foreign Affairs
denying petitioners request to revert to the use of her
maiden name in her replacement passport.
The Facts
Petitioners request having been denied, Atty. Manuel

Joseph R. Bretana 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:
SO ORDERED
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.
REMO v. SECRETARY OF FOREIGN AFFAIRS

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169202
March 5, 2010
MARIA VIRGINIA V. REMO, Petitioner,

vs.
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 2000.5

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
appeal6 and ruled that Section 5(d) of Republic Act No. 8239
(RA 8239) or the Philippine Passport Act of 1996 "offers 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.7
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. The dispositive portion of the Court of Appeals
decision reads:
WHEREFORE, premises considered, the petition is DENIED,
and the resolution dated July 27, 2004, and the order dated
October 28, 2004 of the Office of the President in O.P. Case
No. 001-A-9344 are hereby AFFIRMED.
SO ORDERED.8
Petitioner moved for reconsideration which the Court of
Appeals denied in its Resolution dated 2 August 2005.
Hence, this petition.
The Court of Appeals Ruling
The Court of Appeals found no conflict between Article 370
of the Civil Code9 and Section 5(d) of RA 8239.10 The Court
of Appeals held that for passport application and issuance
purposes, RA 8239 limits the instances when a married
woman applicant may exercise the option to revert to the use
of her maiden name such as in a case of a divorce decree,
annulment or declaration of nullity of marriage. Since there
was no showing that petitioner's marriage to Francisco
Rallonza has been annulled, declared void or a divorce
decree has been granted to them, petitioner cannot simply
revert to her maiden name in the replacement passport after
she had adopted her husbands surname in her old passport.
Hence, according to the Court of Appeals, respondent was
justified in refusing the request of petitioner to revert to her
maiden name in the replacement passport.1avvphi1
The Issue
The sole issue in this case is whether petitioner, who

originally used her husbands surname in her expired
passport, can revert to the use of her maiden name in the
replacement passport, despite the subsistence of her
marriage.
The petition lacks merit.
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 husband's surname, or
(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.11
In Yasin,12 petitioner therein filed with the Sharia District
Court a "Petition to resume the use of maiden name" in view
of the dissolution of her marriage by divorce under the Code
of Muslim Personal Laws of the Philippines, and after
marriage of her former husband to another woman. In ruling
in favor of petitioner therein, the Court explained that:
When a woman marries a man, she need not apply and/or
seek judicial authority to use her husbands name by
prefixing the word "Mrs." before her husbands full name or
by adding her husbands surname to her maiden first name.
The law grants her such right (Art. 370, Civil Code). Similarly,
when the marriage ties or vinculum no longer exists as in the
case of death of the husband or divorce as authorized by the
Muslim Code, the widow or divorcee need not seek judicial
confirmation of the change in her civil status in order to
revert to her maiden name as use of her former husbands is
optional and not obligatory for her (Tolentino, Civil Code, p.
725, 1983 ed.; Art. 373, Civil Code). When petitioner married
her husband, she did not change her but only her civil status.
Neither was she required to secure judicial authority to use
the surname of her husband after the marriage as no law
requires it. (Emphasis supplied)
Clearly, a married woman has an option, but not a duty, to
use the 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.14
In the present case, petitioner, whose marriage is still
subsisting and who opted to use her husbands surname in
her old passport, requested to resume her maiden name in
the replacement passport arguing that no law prohibits her
from using her maiden name. Petitioner cites Yasin as the
applicable precedent. However, Yasin is not squarely in point
with this case. Unlike in Yasin, which involved a Muslim
divorcee whose former husband is already married to
another woman, petitioners marriage remains subsisting.
Another point, Yasin did not involve a request to resume
ones maiden name in a replacement passport, but a petition
to resume ones maiden name in view of the dissolution of
ones marriage.
The law governing passport issuance is RA 8239 and the
applicable provision in this case is Section 5(d), which
states:
Sec. 5. Requirements for the Issuance of Passport. No
passport shall be issued to an applicant unless the Secretary
or his duly authorized representative is satisfied that the
applicant is a Filipino citizen who has complied with the
following requirements: x x x
(d) In case of a woman who is married, separated, divorced
or widowed or whose marriage has been annulled or
declared by court as void, a copy of the certificate of
marriage, court decree of separation, divorce or annulment
or certificate of death of the deceased spouse duly issued
and authenticated by the Office of the Civil Registrar
General: Provided, That in case of a divorce decree,
annulment or declaration of marriage as void, the woman
applicant may revert to the use of her maiden name:
Provided, further, That such divorce is recognized under
existing laws of the Philippines; x x x (Emphasis supplied)
The Office of the Solicitor General (OSG), on behalf of the
Secretary of Foreign Affairs, argues that the highlighted
proviso in Section 5(d) of RA 8239 "limits the instances when
a married woman may be allowed to revert to the use of her
maiden name in her passport." These instances are death of
husband, divorce decree, annulment or nullity of marriage.
Significantly, Section 1, Article 12 of the Implementing Rules
and Regulations of RA 8239 provides:
The passport can be amended only in the following cases:
a) Amendment of womans name due to marriage;
b) Amendment of womans name due to death of spouse,
annulment of marriage or divorce initiated by a foreign
spouse; or
c) Change of surname of a child who is legitimated by virtue

of a subsequent marriage of his parents.
Since petitioners marriage to her husband subsists, placing
her case outside of the purview of Section 5(d) of RA 8239
(as to the instances when a married woman may revert to
the use of her maiden name), she may not resume her
maiden name in the replacement passport. 15 This prohibition,
according to petitioner, conflicts with and, thus, operates as
an implied repeal of Article 370 of the Civil Code.
Petitioner is mistaken. The conflict between Article 370 of the
Civil Code and Section 5(d) of RA 8239 is more imagined
than real. RA 8239, including its implementing rules and
regulations, does not prohibit a married woman from using
her maiden name in her passport. In fact, in recognition of
this right, the DFA allows a married woman who applies for a
passport for the first time to use her maiden name. Such an
applicant is not required to adopt her husband's surname.16
In the case of renewal of passport, a married woman may
either adopt her husbands surname or continuously use her
maiden name. If she chooses to adopt her husbands
surname in her new passport, the DFA additionally requires
the submission of an authenticated copy of the marriage
certificate. Otherwise, if she prefers to continue using her
maiden name, she may still do so. The DFA will not prohibit
her from continuously using her maiden name.17
However, once a married woman opted to adopt her
husbands surname in 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
woman's reversion to the use of her maiden name must be
based only on the severance of the marriage.
Even assuming RA 8239 conflicts with the Civil Code, the
provisions of RA 8239 which is a special law specifically
dealing with passport issuance must prevail over the
provisions of Title XIII of the Civil Code which is the general
law on the use of surnames. A basic tenet in statutory
construction is that a special law prevails over a general
law,18 thus:
[I]t is a familiar rule of statutory construction that to the extent
of any necessary repugnancy between a general and a
special law or provision, the latter will control the former
without regard to the respective dates of passage.19
Moreover, petitioners theory of implied repeal must fail.
Well-entrenched is the rule that an implied repeal is
disfavored. T he apparently conflicting provisions of a law or
two laws should be harmonized as much as possible, so that
each shall be effective.20 For a law to operate to repeal
another law, the two laws must actually be inconsistent. The

former must be so repugnant as to be irreconcilable with the
latter act.21 This petitioner failed to establish.1avvphi1
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 maiden
name. If we allow petitioners present request, definitely
nothing prevents her in the future from requesting to revert to
the use of her husbands surname. Such unjustified changes
in one's name and identity in a passport, which is considered
superior to all other official documents,22 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.
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
maintain the integrity and credibility of the passport and
travel documents proceeding from it23 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.24
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. x x x
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.25
WHEREFORE, we DENY the petition. We AFFIRM the 27
May 2005 Decision and 2 August 2005 Resolution of the
Court of Appeals in CA-G.R. SP No. 87710.
SO ORDERED.
CIVIL REGISTER
SILVERIO v. REPUBLIC

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689
October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of
God; He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala
and she heard voices coming from inside the bamboo. "Oh
North Wind! North Wind! Please let us out!," the voices said.
She pecked the reed once, then twice. All of a sudden, the
bamboo cracked and slit open. Out came two human beings;
one was a male and the other was a female. Amihan named
the man "Malakas" (Strong) and the woman "Maganda"
(Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In
particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard to
a persons sex? May a person successfully petition for a
change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes
Silverio filed a petition for the change of his first name and
sex in his birth certificate in the Regional Trial Court of
Manila, Branch 8. The petition, docketed as SP Case No. 02105207, impleaded the civil registrar of Manila as
respondent.
Petitioner alleged in his petition that he was born in the City
of Manila to the spouses Melecio Petines Silverio and Anita
Aquino Dantes on April 4, 1962. His name was registered as
"Rommel Jacinto Dantes Silverio" in his certificate of live
birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a female"
and that he had always identified himself with girls since
childhood.1 Feeling trapped in a mans body, he consulted
several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery2 in Bangkok, Thailand.
He was thereafter examined by Dr. Marcelino Reysio-Cruz,
Jr., a plastic and reconstruction surgeon in the Philippines,

who issued a medical certificate attesting that he (petitioner)
had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact
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 Journal 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.
On the scheduled initial hearing, jurisdictional requirements
were established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented
Dr. Reysio-Cruz, Jr. and his American fianc, Richard P.
Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor
of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to
the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition
would be more in consonance with the principles of justice
and equity. With his sexual [re-assignment], petitioner, who
has always felt, thought and acted like a woman, now
possesses the physique of a female. Petitioners misfortune
to be trapped in a mans body is not his own doing and
should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or]
prejudice will be caused to anybody or the community in
granting the petition. On the contrary, granting the petition
would bring the much-awaited happiness on the part of the
petitioner and her [fianc] and the realization of their dreams.
Finally, no evidence was presented to show any cause or
ground to deny the present petition despite due notice and
publication thereof. Even the State, through the [OSG] has
not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the
petition and ordering the Civil Registrar of Manila to change
the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioners first name from "Rommel Jacinto"
to MELY and petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines

(Republic), thru the OSG, filed a petition for certiorari in the
Court of Appeals.6 It alleged that there is no law allowing the
change of entries in the birth certificate by reason of sex
alteration.
On February 23, 2006, the Court of Appeals7 rendered a
decision8 in favor of the Republic. It ruled that the trial courts
decision lacked legal basis. There is no law allowing the
change of either name or sex in the certificate of birth on the
ground of sex reassignment through surgery. Thus, the Court
of Appeals granted the Republics petition, set aside the
decision of the trial court and ordered the dismissal of SP
Case No. 02-105207. Petitioner moved for reconsideration
but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and
sex in his birth certificate is allowed under Articles 407 to 413
of the Civil Code, Rules 103 and 108 of the Rules of Court
and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his
petition for change of name and sex. As found by the trial
court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals
and entities for purposes of identification.11 A change of
name is a privilege, not a right.12 Petitions for change of
name are controlled by statutes. 13 In this connection, Article
376 of the Civil Code provides:
ART. 376. No person can change his name or surname
without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical
Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname. No entry in
a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or
changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act
and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 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. 15 It
likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which change of
first name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. The petition for change of first name or
nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name
was his sex reassignment. He intended to make his first
name compatible with the sex he thought he transformed
himself into through surgery. However, a change of name
does not alter ones legal capacity or civil status. 18 RA 9048
does not sanction a change of first name on the ground of
sex reassignment. Rather than avoiding confusion, changing
petitioners first name for his declared purpose may only
create grave complications in the civil registry and the public
interest.
Before a person can legally change his given name, he must
present proper or reasonable cause or any compelling
reason justifying such change.19 In addition, he must show
that he will be prejudiced by the use of his true and official
name.20 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.
In sum, the petition in the trial court in so far as it prayed for
the change of petitioners first name was not within that
courts primary jurisdiction as the petition should have been
filed 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.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change
of such matters can now be made through administrative
proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors. 22 Rule 108 now
applies only to substantial changes and corrections in entries
in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the
following terms shall mean:
xxx
xxx
xxx
(3) "Clerical or typographical error" refers to a mistake

committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the
eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or
records: Provided, however, That no correction must
involve the change of nationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It
is a substantial change for which the applicable procedure is
Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages
void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article
407 of the Civil Code include even those that occur after
birth.25 However, no reasonable interpretation of the
provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove
the faults or error from" while to change means "to replace
something with something else of the same kind or with
something that serves as a substitute." 26 The birth certificate
of petitioner contained no error. All entries therein, including
those corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil
registry
of
certain acts (such
as
legitimations,
acknowledgments
of
illegitimate
children
and
naturalization), events (such
as
births,
marriages,
naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of
nullity of marriages, adoptions, naturalization, loss or
recovery
of
citizenship,
civil
interdiction,
judicial
determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that
touch upon the legal capacity, status and nationality of a
person. Their effects are expressly sanctioned by the laws.
In contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it recognized nor
even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and incapacities)
of a person in view of his age, nationality and his family
membership.27
The status of a person in law includes all his personal
qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The
comprehensive term status include such matters as the
beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects,
such as birth, legitimation, adoption, emancipation, marriage,
divorce, and sometimes even succession.28 (emphasis
supplied)
A persons sex is an essential factor in marriage and family
relations. It is a part of a persons legal capacity and civil
status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the registration of

civil status shall be governed by special laws.
But there is no such special law in the Philippines governing
sex reassignment and its effects. This is fatal to petitioners
cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births. The
declaration of the physician or midwife in attendance at the
birth or, in default thereof, the declaration of either parent of
the newborn child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth, by the
physician or midwife in attendance at the birth or by either
parent of the newborn child.
In such declaration, the person above mentioned shall certify
to the following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother
alone; (d) civil status of parents; (e) place where the infant
was born; and (f) such other data as may be required in the
regulations to be issued.
xxx
xxx
xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical

record of the facts as they existed at the time of
birth.29 Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering
that there is no law legally recognizing sex reassignment, the
determination of a persons sex made at the time of his or
her birth, if not attended by error,30is immutable.31
When words are not defined in a statute they are to be given
their common and ordinary meaning in the absence of a
contrary legislative intent. The words "sex," "male" and
"female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should
therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of
structure and function that distinguish a male from a
female"32 or
"the
distinction
between
male
and
female."33 Female is "the sex that produces ova or bears
young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male"
and "female" in everyday understanding do not include
persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which
had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term "sex" as used

then is something alterable through surgery or something
that allows a post-operative male-to-female transsexual to be
included in the category "female."
the privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
For these reasons, while petitioner may have succeeded in

altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to
sex in the civil registry for that reason. Thus, there is no legal
basis for his petition for the correction or change of the
entries in his birth certificate.
It might be theoretically possible for this Court to write a

protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no
authority to fashion a law on that matter, or on anything else.
The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch
of government, Congress.
Neither May Entries in the Birth Certificate As to First

Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm,
injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wideranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioners
first step towards his eventual marriage to his male fianc.
However, marriage, one of the most sacred social
institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential
requisites is the legal capacity of the contracting parties who
must be a male and a female.38 To grant the changes sought
by petitioner will substantially reconfigure and greatly alter
the laws on marriage and family relations. It will allow the
union of a man with another man who has undergone sex
reassignment (a male-to-female post-operative transsexual).
Second, there are various laws which apply particularly to
women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised
Penal Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,41 among
others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioners
petition were to be granted.
Petitioner pleads that "[t]he unfortunates are also entitled to

a life of happiness, contentment and [the] realization of their
dreams." No argument about that. The Court recognizes that
there are people whose preferences and orientation do not fit
neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an
ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
REPUBLIC v. CAGANDAHAN
SUPREME COURT
Manila
It is true that Article 9 of the Civil Code mandates that "[n]o

judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the law." However, it
is not a license for courts to engage in judicial legislation.
The duty of the courts is to apply or interpret the law, not to
make or amend it.
SECOND DIVISION
REPUBLIC OF THE PHILIPPINES,
In our system of government, it is for the legislature, should it

choose to do so, to determine what guidelines should govern
the recognition of the effects of sex reassignment. The need
for legislative guidelines becomes particularly important in
this case where the claims asserted are statute-based.
G.R. No. 166676
Petitioner,
- versus JENNIFER B. CAGANDAHAN,
To reiterate, the statutes define who may file petitions for

change of first name and for correction or change of entries
in the civil registry, where they may be filed, what grounds
may be invoked, what proof must be presented and what
procedures shall be observed. If the legislature intends to
confer on a person who has undergone sex reassignment
Respondent.
Promulgated:
September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the
Rules of Court raising purely questions of law and
seeking a reversal of the Decision[1] dated January
12, 2005 of the Regional Trial Court (RTC), Branch 33
of Siniloan, Laguna, which granted the Petition for
Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following
changes of entries in Cagandahans birth certificate:
(1) the name "Jennifer Cagandahan" changed to "Jeff
Cagandahan" and (2) gender from "female" to "male."
The facts are as follows.
On December 11, 2003, respondent Jennifer
Cagandahan filed a Petition for Correction of Entries in
Birth Certificate2 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.
The petition was published in a newspaper of general
circulation for three (3) consecutive weeks and was
posted in conspicuous places by the sheriff of the
court. The Solicitor General entered his appearance
and authorized the Assistant Provincial Prosecutor to
appear in his behalf.
To prove her claim, respondent testified and presented
the 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 organs

female 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 which reads:
The Court is convinced that petitioner has
satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to
the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that
petitioners body produces male hormones, and first
his body as well as his action and feelings are that of a
male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified
as a male.
WHEREFORE, premises considered, the Civil
Register of Pakil, Laguna is hereby ordered to make
the following corrections in the birth [c]ertificate of
Jennifer Cagandahan upon payment of the prescribed
fees:
a) By changing the name from Jennifer Cagandahan
to JEFF CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioners school records,
voters registry, baptismal certificate, and other
pertinent records are hereby amended to conform with
the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General
(OSG) seeking a reversal of the abovementioned
ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE
PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF
THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,

II.
Court].
CORRECTION OF ENTRY UNDER RULE 108 DOES

NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN
THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."4
Sec. 2. Contents of petition. A petition for change of

name shall be signed and verified by the person
desiring his name changed, or some other person on
his behalf, and shall set forth:
Simply stated, the issue is whether the trial court erred

in ordering the correction of entries in the birth
certificate of respondent to change her sex or gender,
from female to male, on the ground of her medical
condition known as CAH, and her name from
"Jennifer" to "Jeff," under Rules 103 and 108 of the
Rules of Court.
The OSG contends that the petition below is fatally
defective for non-compliance with Rules 103 and 108
of the Rules of Court because while the local civil
registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3,
Rule 108 of the Rules of Court, respondents petition
before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondents
petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province
where the petition was filed for at least three (3) years
prior to the date of such filing as mandated under
Section 2(b), Rule 103 of the Rules of Court.6 The
OSG argues that Rule 108 does not allow change of
sex or gender in the birth certificate and respondents
claimed medical condition known as CAH does not
make her a male.7
On the other hand, respondent counters that although
the Local Civil Registrar of Pakil, Laguna was not
formally named a party in the Petition for Correction of
Birth Certificate, nonetheless the Local Civil Registrar
was furnished a copy of the Petition, the Order to
publish on December 16, 2003 and all pleadings,
orders or processes in the course of the
proceedings,8 respondent is actually a male person
and hence his birth certificate has to be corrected to
reflect his true sex/gender,9 change of sex or gender is
allowed
under
Rule
108,10 and
respondent
substantially complied with the requirements of Rules
103 and 108 of the Rules of Court.11
(a) That the petitioner has been a bona fide resident of

the province where the petition is filed for at least
three (3) years prior to the date of such filing;
(b) The cause for which the change of the petitioner's
name is sought;
(c) The name asked for.
Sec. 3. Order for hearing. If the petition filed is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and
place for the hearing thereof, and shall direct that a
copy of the order be published before the hearing at
least once a week for three (3) successive weeks in
some newspaper of general circulation published in
the province, as the court shall deem best. The date
set for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) months after the
last publication of the notice.
Sec. 4. Hearing. Any interested person may appear
at the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall
appear on behalf of the Government of the Republic.
Sec. 5. Judgment. Upon satisfactory proof in open
court on the date fixed in the order that such order has
been published as directed and that the allegations of
the petition are true, the court shall, if proper and
reasonable cause appears for changing the name of
the petitioner, adjudge that such name be changed in
accordance with the prayer of the petition.
Sec. 6. Service of judgment. Judgments or orders
rendered in connection with this rule shall be furnished
the civil registrar of the municipality or city where the
court issuing the same is situated, who shall forthwith
enter the same in the civil register.
Rules 103 and 108 of the Rules of Court provide:
Rule 108
Rule 103
CANCELLATION OR CORRECTION OF ENTRIES
CHANGE OF NAME
IN THE CIVIL REGISTRY
Section 1. Venue. A person desiring to change his

name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the
City of Manila, to the Juvenile and Domestic Relations
Section 1. Who may file petition. Any person

interested in any act, event, order or decree
concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition
for the cancellation or correction of any entry relating
thereto, with the Regional Trial Court of the province

where the corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or correction.
Upon good and valid grounds, the following entries in
the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separations;
(e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil
interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of
name.
Sec. 3. Parties. When cancellation or correction of
an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which
would be affected thereby shall be made parties to the
proceeding.
Sec. 4. Notice and publication. Upon the filing of the
petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the
order to be published once a week for three (3)
consecutive weeks in a newspaper of general
circulation in the province.
indispensable party without whom no final

determination of the case can be had.[12] Unless all
possible indispensable parties were duly notified of the
proceedings, the same shall be considered as falling
much too short of the requirements of the rules.13 The
corresponding petition should also implead as
respondents the civil registrar and all other persons
who may have or may claim to have any interest that
would be affected thereby.14 Respondent, however,
invokes Section 6,[15] Rule 1 of the Rules of Court
which states that courts shall construe the Rules
liberally to promote their objectives of securing to the
parties a just, speedy and inexpensive disposition of
the matters brought before it. We agree that there is
substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the local
civil registrar.
The determination of a persons sex appearing in his
birth certificate is a legal issue and the court must look
to the statutes. In this connection, Article 412 of the
Civil Code provides:
ART. 412. No entry in a civil register shall be changed
or corrected without a judicial order.
Sec. 5. Opposition. The civil registrar and any

person having or claiming any interest under the entry
whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the
last date of publication of such notice, file his
opposition thereto.
Together with Article 376[16] of the Civil Code, this

provision was amended by Republic Act No.
9048[17] in so far as clerical or typographical errors
are involved. The correction or change of such matters
can now be made through administrative proceedings
and without the need for a judicial order. In effect,
Rep. Act No. 9048 removed from the ambit of Rule
108 of the Rules of Court the correction of such errors.
Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.18
Sec. 6. Expediting proceedings. The court in which

the proceedings is brought may make orders
expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights
of the parties pending such proceedings.
Under Rep. Act No. 9048, a correction in the civil

registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108
of the Rules of Court.19
Sec. 7. Order. After hearing, the court may either

dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon
the civil registrar concerned who shall annotate the
same in his record.
The entries envisaged in Article 412 of the Civil Code

and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil
Code:
The OSG argues that the petition below is fatally

defective for non-compliance with Rules 103 and 108
of the Rules of Court because respondents petition
did not implead the local civil registrar. Section 3, Rule
108 provides that the civil registrar and all persons
who have or claim any interest which would be
affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is
required to be made a party in a proceeding for the
correction of name in the civil registry. He is an
ART. 407. Acts, events and judicial decrees

concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments
of
natural
children;
(10)

naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation
of a minor; and (16) changes of name.
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.
The acts, events or factual errors contemplated under

Article 407 of the Civil Code include even those that
occur after birth.20
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
Respondent undisputedly has CAH. This condition

causes the early or "inappropriate" appearance of
male characteristics. A person, like respondent, with
this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes
coupled with CAH usually has a (1) swollen clitoris
with the urethral opening at the base, an ambiguous
genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes;
as the child grows older, some features start to appear
male, such as deepening of the voice, facial hair,
and failure to menstruate at puberty. About 1 in 10,000
to 18,000 children are born with CAH.
CAH is one of many conditions[21] that involve
intersex anatomy. During the twentieth century,
medicine adopted the term "intersexuality" to apply to
human beings who cannot be classified as either male
or female.[22] The term is now of widespread use.
According to Wikipedia, intersexuality "is the state of a
living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither
exclusively male nor female. An organism with
intersex may have biological characteristics of both
male and female sexes."
Intersex individuals are treated in different ways by
different cultures. In most societies, intersex
individuals have been expected to conform to either a
male or female gender role.[23] Since the rise of
modern medical science in Western societies, some
intersex people with ambiguous external genitalia
have had their genitalia surgically modified to
resemble either male or female genitals.[24] More
commonly, an intersex individual is considered as
suffering from a "disorder" which is almost always
recommended to be treated, whether by surgery
and/or by taking lifetime medication in order to mold
the individual as neatly as possible into the category of
either male or female.
In deciding this case, we consider the compassionate
calls for recognition 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."[25] The current state of Philippine
statutes apparently compels that a person be
subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed
(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.
Respondent here has simply let nature take its course
and has not taken unnatural steps to arrest or interfere
with what he was born with. And accordingly, he has
already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like
taking lifelong medication,[26] to force his body into
the categorical mold of a female but he did not. He
chose not to do so. Nature has instead taken its due
course in respondents development to reveal more
fully his male characteristics.
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 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"[27] 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 and thus
help make his life easier, considering the unique
circumstances in this case.
As for respondents change of name under Rule 103,
this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised
in the light of the reasons adduced and the
consequences that will follow.[28] The trial courts
grant of respondents change of name from Jennifer to
Jeff implies a 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.
WHEREFORE, the Republics petition is DENIED. The
Decision dated January 12, 2005 of the Regional Trial
Court, Branch 33 of Siniloan, Laguna, is AFFIRMED.
SO ORDERED.
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision 1 of the
Regional Trial Court (RTC) of Laoag City, Branch 11,
elevated via a petition for review on certiorari 2 under Rule 45
of the Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen
who acquired Canadian citizenship through naturalization on
November 29, 2000.3 On January 18, 2005, Gerbert married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig
City.4 Due to work and other professional commitments,
Gerbert left for Canada soon after the wedding. He returned
to the Philippines sometime in April 2005 to surprise
Daisylyn, but was shocked to discover that his wife was
having an affair with another man. Hurt and disappointed,
Gerbert returned to Canada and filed a petition for divorce.
The Superior Court of Justice, Windsor, Ontario, Canada
granted Gerberts petition for divorce on December 8, 2005.
The divorce decree took effect a month later, on January 8,
2006.5
Two years after the divorce, Gerbert has moved on and has
found another Filipina to love. Desirous of marrying his new
Filipina fiance in the Philippines, Gerbert went to the Pasig
City Civil Registry Office and registered the Canadian
divorce decree on his and Daisylyns marriage certificate.
Despite the registration of the divorce decree, an official of
the National Statistics Office (NSO) informed Gerbert that the
marriage between him and Daisylyn still subsists under
Philippine law; to be enforceable, the foreign divorce decree
must first be judicially recognized by a competent Philippine
court, pursuant to NSO Circular No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial recognition of
foreign divorce and/or declaration of marriage as dissolved
(petition) with the RTC. Although summoned, Daisylyn did
not file any responsive pleading but submitted instead a
notarized letter/manifestation to the trial court. She offered
no opposition to Gerberts petition and, in fact, alleged her
desire to file a similar case herself but was prevented by
financial and personal circumstances. She, thus, requested
that she be considered as a party-in-interest with a similar
prayer to Gerberts.
CORPUZ v. STO. TOMAS

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 186571
August 11, 2010
GERBERT R. CORPUZ, Petitioner,

vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR
GENERAL, Respondents.
In its October 30, 2008 decision,7 the RTC denied Gerberts

petition. The RTC concluded that Gerbert was not the proper
party to institute the action for judicial recognition of the
foreign divorce decree as he is a naturalized Canadian
citizen. It ruled that only the Filipino spouse can avail of the
remedy, under the second paragraph of Article 26 of the
Family Code,8 in order for him or her to be able to remarry
under Philippine law.9 Article 26 of the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid

in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall likewise have capacity to
remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the
legislative intent behind the enactment of the second
paragraph of Article 26 of the Family Code, as determined by
the Court in Republic v. Orbecido III;10 the provision was
enacted to "avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse."11
THE PETITION
From the RTCs ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially
for declaratory relief, similar to that filed in Orbecido; he,
thus, similarly asks for a determination of his rights under the
second paragraph of Article 26 of the Family Code. Taking
into account the rationale behind the second paragraph of
Article 26 of the Family Code, he contends that the provision
applies as well to the benefit of the alien spouse. He claims
that the RTC ruling unduly stretched the doctrine in Orbecido
by limiting the standing to file the petition only to the Filipino
spouse an interpretation he claims to be contrary to the
essence of the second paragraph of Article 26 of the Family
Code. He considers himself as a proper party, vested with
sufficient legal interest, to institute the case, as there is a
possibility that he might be prosecuted for bigamy if he
marries his Filipina fiance in the Philippines since two
marriage certificates, involving him, would be on file with the
Civil Registry Office. The Office of the Solicitor General and
Daisylyn, in their respective Comments,14 both support
Gerberts position.
Essentially, the petition raises the issue of whether the
second paragraph of Article 26 of the Family Code extends
to aliens the right to petition a court of this jurisdiction for the
recognition of a foreign divorce decree.
THE COURTS RULING
The alien spouse can claim no right under the second
paragraph of Article 26 of the Family Code as the
substantive right it establishes is in favor of the Filipino
spouse
The resolution of the issue requires a review of the
legislative history and intent behind the second paragraph of
Article 26 of the Family Code.
The Family Code recognizes only two types of defective

marriages void15 and voidable16 marriages. In both cases,
the basis for the judicial declaration of absolute nullity or
annulment of the marriage exists before or at the time of the
marriage. Divorce, on the other hand, contemplates the
dissolution of the lawful union for cause arising after the
marriage.17 Our family laws do not recognize absolute
divorce between Filipino citizens.18
Recognizing the reality that divorce is a possibility in
marriages between a Filipino and an alien, President
Corazon C. Aquino, in the exercise of her legislative powers
under the Freedom Constitution,19 enacted Executive Order
No. (EO) 227, amending Article 26 of the Family Code to its
present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall likewise have capacity to
remarry under Philippine law.
Through the second paragraph of Article 26 of the Family
Code, EO 227 effectively incorporated into the law this
Courts holding in Van Dorn v. Romillo, Jr.20 and Pilapil v.
Ibay-Somera.21 In both cases, the Court refused to
acknowledge the alien spouses assertion of marital rights
after a foreign courts divorce decree between the alien and
the Filipino. The Court, thus, recognized that the foreign
divorce had already severed the marital bond between the
spouses. The Court reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse]
has to be considered still married to [the alien spouse] and
still subject to a wife's obligations x x x cannot be just. [The
Filipino spouse] should not be obliged to live together with,
observe respect and fidelity, and render support to [the alien
spouse]. The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice
are to be served.22
As the RTC correctly stated, the provision was included in
the law "to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse."23 The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status, settling
the doubts created by the divorce decree. Essentially, the
second paragraph of Article 26 of the Family Code provided
the Filipino spouse a substantive right to have his or her
marriage to the alien spouse considered as dissolved,
capacitating him or her to remarry.24 Without the second
paragraph of Article 26 of the Family Code, the judicial

recognition of the foreign decree of divorce, whether in a
proceeding instituted precisely for that purpose or as a
related issue in another proceeding, would be of no
significance to the Filipino spouse since our laws do not
recognize divorce as a mode of severing the marital
bond;25 Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the
direct exception to this rule and serves as basis for
recognizing the dissolution of the marriage between the
Filipino spouse and his or her alien spouse.
Additionally, an action based on the second paragraph of
Article 26 of the Family Code is not limited to the recognition
of the foreign divorce decree. If the court finds that the
decree capacitated the alien spouse to remarry, the courts
can declare that the Filipino spouse is likewise capacitated to
contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse
(other than that already established by the decree), whose
status and legal capacity are generally governed by his
national law.26
Given the rationale and intent behind the enactment, and the
purpose of the second paragraph of Article 26 of the Family
Code, the RTC was correct in limiting the applicability of the
provision for the benefit of the Filipino spouse. In other
words, only the Filipino spouse can invoke the second
paragraph of Article 26 of the Family Code; the alien spouse
can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a
right that clothes the party with legal interest to petition for its
recognition in this jurisdiction
We qualify our above conclusion i.e., that the second
paragraph of Article 26 of the Family Code bestows no rights
in favor of aliens with the complementary statement that
this conclusion is not sufficient basis to dismiss Gerberts
petition before the RTC. In other words, the unavailability of
the second paragraph of Article 26 of the Family Code to
aliens does not necessarily strip Gerbert of legal interest to
petition the RTC for the recognition of his foreign divorce
decree. The foreign divorce decree itself, after its authenticity
and conformity with the aliens national law have been duly
proven according to our rules of evidence, serves as a
presumptive evidence of right in favor of Gerbert, pursuant to
Section 48, Rule 39 of the Rules of Court which provides for
the effect of foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
(a) In case of a judgment or final order upon a specific thing,
the judgment or final order is conclusive upon the title of the
thing; and
(b) In case of a judgment or final order against a person, the

judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the
foreign judgment is sufficient to clothe a party with the
requisite interest to institute an action before our courts for
the recognition of the foreign judgment. In a divorce
situation, we have declared, no less, that the divorce
obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or
her national law.27
The starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give
effect within its dominion to a judgment rendered by a
tribunal of another country."28 This means that the foreign
judgment and its authenticity must be proven as facts under
our rules on evidence, together with the aliens applicable
national law to show the effect of the judgment on the alien
himself or herself.29 The recognition may be made in an
action instituted specifically for the purpose or in another
action where a party invokes the foreign decree as an
integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and
the national law of the alien, recognizing his or her capacity
to obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes
into play. This Section requires proof, either by (1) official
publications or (2) copies attested by the officer having legal
custody of the documents. If the copies of official records are
not kept in the Philippines, these must be (a) accompanied
by a certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b)
authenticated by the seal of his office.
The records show that Gerbert attached to his petition a
copy of the divorce decree, as well as the required
certificates proving its authenticity,30 but failed to include a
copy of the Canadian law on divorce. 31 Under this situation,
we can, at this point, simply dismiss the petition for
insufficiency of supporting evidence, unless we deem it more
appropriate to remand the case to the RTC to determine
whether the divorce decree is consistent with the Canadian
divorce law.
We deem it more appropriate to take this latter course of
action, given the Article 26 interests that will be served and
the Filipina wifes (Daisylyns) obvious conformity with the
petition. A remand, at the same time, will allow other
interested parties to oppose the foreign judgment and

overcome a petitioners presumptive evidence of a right by
proving want of jurisdiction, want of notice to a party,
collusion, fraud, or clear mistake of law or fact. Needless to
state, every precaution must be taken to ensure conformity
with our laws before a recognition is made, as the foreign
judgment, once recognized, shall have the effect of res
judicata32 between the parties, as provided in Section 48,
Rule 39 of the Rules of Court.33
In fact, more than the principle of comity that is served by the
practice of reciprocal recognition of foreign judgments
between nations, the res judicata effect of the foreign
judgments of divorce serves as the deeper basis for
extending judicial recognition and for considering the alien
spouse bound by its terms. This same effect, as discussed
above, will not obtain for the Filipino spouse were it not for
the substantive rule that the second paragraph of Article 26
of the Family Code provides.
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall
keep and preserve in their offices the following books, in
which they shall, respectively make the proper entries
concerning the civil status of persons:
(1) Birth and death register;
Considerations beyond the recognition of the foreign divorce

decree
As a matter of "housekeeping" concern, we note that the
Pasig City Civil Registry Office has already recorded the
divorce decree on Gerbert and Daisylyns marriage
certificate based on the mere presentation of the
decree.34We consider the recording to be legally improper;
hence, the need to draw attention of the bench and the bar
to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and
judicial decrees concerning the civil status of persons shall
be recorded in the civil register." The law requires the entry
in the civil registry of judicial decrees that produce legal
consequences touching upon a persons legal capacity and
status, i.e., those affecting "all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not."35
A judgment of divorce is a judicial decree, although a foreign
one, affecting a persons legal capacity and status that must
be recorded. In fact, Act No. 3753 or the Law on Registry of
Civil Status specifically requires the registration of divorce
decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for
recording the civil status of persons, in which shall be
entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(2) Marriage register, in which shall be entered not only the

marriages solemnized but also divorces and dissolved
marriages.
(3) Legitimation, acknowledgment, adoption, change of
name and naturalization register.
But while the law requires the entry of the divorce decree in
the civil registry, the law and the submission of the decree by
themselves do not ipso facto authorize the decrees
registration. The law should be read in relation with the
requirement of a judicial recognition of the foreign judgment
before it can be given res judicata effect. In the context of the
present case, no judicial order as yet exists recognizing the
foreign divorce decree. Thus, the Pasig City Civil Registry
Office acted totally out of turn and without authority of law
when it annotated the Canadian divorce decree on Gerbert
and Daisylyns marriage certificate, on the strength alone of
the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of
the requirement of a court recognition, as it cited NSO
Circular No. 4, series of 1982,36 and Department of Justice
Opinion No. 181, series of 198237 both of which required a
final order from a competent Philippine court before a foreign
judgment, dissolving a marriage, can be registered in the
civil registry, but it, nonetheless, allowed the registration of
the decree. For being contrary to law, the registration of the
foreign divorce decree without the requisite judicial
recognition is patently void and cannot produce any legal
effect.1avvphi1
Another point we wish to draw attention to is that the
recognition that the RTC may extend to the Canadian
divorce decree does not, by itself, authorize the cancellation
of the entry in the civil registry. A petition for recognition of a
foreign judgment is not the proper proceeding, contemplated
under the Rules of Court, for the cancellation of entries in the
civil registry.

Article 412 of the Civil Code declares that "no entry in a civil
register shall be changed or corrected, without judicial order."
The Rules of Court supplements Article 412 of the Civil Code
by specifically providing for a special remedial proceeding by
which entries in the civil registry may be judicially cancelled
or corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be
complied with before a judgment, authorizing the
cancellation or correction, may be annotated in the civil
registry. It also requires, among others, that the verified
petition must be filed with the RTC of the province where the
corresponding civil registry is located; 38 that the civil registrar
and all persons who have or claim any interest must be
made parties to the proceedings;39 and that the time and
place for hearing must be published in a newspaper of
general
circulation.40 As
these
basic
jurisdictional
requirements have not been met in the present case, we
cannot consider the petition Gerbert filed with the RTC as
one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not
be construed as requiring two separate proceedings for the
registration of a foreign divorce decree in the civil registry
one for recognition of the foreign decree and another
specifically for cancellation of the entry under Rule 108 of the
Rules of Court. The recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object
of special proceedings (such as that in Rule 108 of the Rules
of Court) is precisely to establish the status or right of a party
or a particular fact. Moreover, Rule 108 of the Rules of Court
can serve as the appropriate adversarial proceeding 41 by
which the applicability of the foreign judgment can be
measured and tested in terms of jurisdictional infirmities,
want of notice to the party, collusion, fraud, or clear mistake
of law or fact.
WHEREFORE, we GRANT the petition for review on
certiorari, and REVERSE the October 30, 2008 decision of
the Regional Trial Court of Laoag City, Branch 11, as well as
its February 17, 2009 order. We order the REMAND of the
case to the trial court for further proceedings in accordance
with our ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.
THE LOCAL CIVIL REGISTRAR OF PASAY

CITY, RESPONDENTS.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45
of the 1997 Rules of Civil Procedure, as amended, assailing
the September 4, 2012 Decision2 and October 16, 2012
Order3 of the Regional Trial Court (RTC), Branch 43, of
Manila in Civil Case No. 11-126203. The RTC denied the
petition for declaration of nullity of the marriage of petitioner
Yasuo Iwasawa with private respondent Felisa Custodio
Gangan due to insufficient evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent
sometime in 2002 in one of his visits to the Philippines.
Private respondent introduced herself as "single" and "has
never married before." Since then, the two became close to
each other. Later that year, petitioner came back to the
Philippines and married private respondent on November 28,
2002 in Pasay City. After the wedding, the couple resided in
Japan.4
In July 2009, petitioner noticed his wife become depressed.
Suspecting that something might have happened in the
Philippines, he confronted his wife about it. To his shock,
private respondent confessed to him that she received news
that her previous husband passed away.5
Petitioner sought to confirm the truth of his wifes confession
and discovered that indeed, she was married to one
Raymond Maglonzo Arambulo and that their marriage took
place on June 20, 1994.6 This prompted petitioner to file a
petition7 for the declaration of his marriage to private
respondent as null and void on the ground that their
marriage is a bigamous one, based on Article 35(4) in
relation to Article 41 of the Family Code of the Philippines.
During trial, aside from his testimony, petitioner also offered
the following pieces of documentary evidence issued by the
National Statistics Office (NSO):
SO ORDERED.
IWASAWA v. GANGAN
(1)
SUPREME COURT
Manila
Certificate of Marriage8 between petitioner and private

respondent marked as Exhibit "A" to prove the fact of
marriage between the parties on November 28, 2002;
FIRST DIVISION
(2)
G.R. No. 204169
September 11, 2013
YASUO IWASAWA, PETITIONER,

vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN
ARAMBULO, AND FELISA GANGAN IWASAWA) AND
Certificate of Marriage9 between private respondent and

Raymond Maglonzo Arambulo marked as Exhibit "B" to
prove the fact of marriage between the parties on June 20,
1994;

(3)
Certificate of Death10 of Raymond Maglonzo Arambulo
marked as Exhibits "C" and "C-1" to prove the fact of the
latters death on July 14, 2009; and
(4)
Certification11 from the NSO to the effect that there are two
entries of marriage recorded by the office pertaining to
private respondent marked as Exhibit "D" to prove that
private respondent in fact contracted two marriages, the first
one was to a Raymond Maglonzo Arambulo on June 20,
1994, and second, to petitioner on November 28, 2002.
The prosecutor appearing on behalf of the Office of the
Solicitor General (OSG) admitted the authenticity and due
execution of the above documentary exhibits during pretrial.12
On September 4, 2012, the RTC rendered the assailed
decision. It ruled that there was insufficient evidence to prove
private respondents prior existing valid marriage to another
man. It held that while petitioner offered the certificate of
marriage of private respondent to Arambulo, it was only
petitioner who testified about said marriage. The RTC ruled
that petitioners testimony is unreliable because he has no
personal knowledge of private respondents prior marriage
nor of Arambulos death which makes him a complete
stranger to the marriage certificate between private
respondent and Arambulo and the latters death certificate. It
further ruled that petitioners testimony about the NSO
certification is likewise unreliable since he is a stranger to the
preparation of said document.
Petitioner filed a motion for reconsideration, but the same
was denied by the RTC in an Order dated October 16, 2012.
Hence this petition raising the sole legal issue of whether the
testimony of the NSO records custodian certifying the
authenticity and due execution of the public documents
issued by said office was necessary before they could be
accorded evidentiary weight.
Petitioner argues that the documentary evidence he
presented are public documents which are considered selfauthenticating and thus it was unnecessary to call the NSO
Records Custodian as witness. He cites Article 410 of the
Civil Code which provides that books making up the civil
register and all documents relating thereto shall be
considered public documents and shall be prima facie
evidence of the facts stated therein. Moreover, the trial
prosecutor himself also admitted the authenticity of said
documents.
The OSG, in its Comment,13 submits that the findings of the
RTC are not in accord with law and established
jurisprudence. It contends that both Republic Act No. 3753,
otherwise known as the Law on Registry of Civil Status, and
the Civil Code elaborated on the character of documents
arising from records and entries made by the civil registrar

and categorically declared them as public documents. Being
public documents, said documents are admissible in
evidence even without further proof of their due execution
and genuineness and consequently, there was no need for
the court to require petitioner to present the records
custodian or officer from the NSO to testify on them. The
OSG further contends that public documents have probative
value since they are prima facie evidence of the facts stated
therein as provided in the above-quoted provision of the Civil
Code. Thus, the OSG submits that the public documents
presented by petitioner, considered together, completely
establish the facts in issue.
In her letter14 dated March 19, 2013 to this Court, private
respondent indicated that she is not against her husbands
petition to have their marriage declared null and void. She
likewise admitted therein that she contracted marriage with
Arambulo on June 20, 1994 and contracted a second
marriage with petitioner on November 28, 2002. She further
admitted that it was due to poverty and joblessness that she
married petitioner without telling the latter that she was
previously married. Private respondent also confirmed that it
was when she found out that Arambulo passed away on July
14, 2009 that she had the guts to confess to petitioner about
her previous marriage. Thereafter, she and petitioner have
separated.
We grant the petition.
There is no question that the documentary evidence
submitted by petitioner are all public documents.1wphi1 As
provided in the Civil Code:
ART. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained.
As public documents, they are admissible in evidence even
without further proof of their due execution and
genuineness.15 Thus, the RTC erred when it disregarded
said documents on the sole ground that the petitioner did not
present the records custodian of the NSO who issued them
to testify on their authenticity and due execution since proof
of authenticity and due execution was not anymore
necessary. Moreover, not only are said documents
admissible, they deserve to be given evidentiary weight
because they constitute prima facie evidence of the facts
stated therein. And in the instant case, the facts stated
therein remain unrebutted since neither the private
respondent nor the public prosecutor presented evidence to
the contrary.
This Court has consistently held that a judicial declaration of
nullity is required before a valid subsequent marriage can be
contracted; or else, what transpires is a bigamous
marriage,16 which is void from the beginning as provided in
Article 35(4) of the Family Code of the Philippines. And this
is what transpired in the instant case.

As correctly pointed out by the OSG, the documentary
exhibits taken together concretely establish the nullity of the
marriage of petitioner to private respondent on the ground
that their marriage is bigamous. The exhibits directly prove
the following facts: (1) that private respondent married
Arambulo on June 20, 1994 in the City of Manila; (2) that
private respondent contracted a second marriage this time
with petitioner on November 28, 2002 in Pasay City; (3) that
there was no judicial declaration of nullity of the marriage of
private respondent with Arambulo at the time she married
petitioner; (3) that Arambulo died on July 14, 2009 and that it
was only on said date that private respondents marriage
with Arambulo was deemed to have been dissolved; and (4)
that the second marriage of private respondent to petitioner
is bigamous, hence null and void, since the first marriage
was still valid and subsisting when the second marriage was
contracted.
WHEREFORE, the petition for review on certiorari is
GRANTED. The September 4, 2012 Decision and October
16, 2012 Order of the Regional Trial Court of Manila, Branch
43, in Civil Case No. 11-126203 are hereby SET ASIDE. The
marriage of petitioner Yasuo Iwasawa and private
respondent Felisa Custodio Gangan is declared NULL and
VOID.
The Local Civil Registrar of Pasay City and the National
Statistics Office are hereby ORDERED to make proper
entries into the records of the abovementioned parties in
accordance with this Decision.
SO ORDERED.
REPUBLIC v. OLAYBAR
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 189538
February 10, 2014

vs.
MERLINDA L. OLAYBAR, Respondent.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45
of the Rules of Court are the Regional Trial Court1(RTC)
Decision2 dated May 5, 2009 and Order3 dated August 25,
2009 in SP. Proc. No. 16519-CEB. The assailed decision
granted respondent Merlinda L. Olaybar's petition for
cancellation of entries in the latter's marriage contract; while
the assailed order denied the motion for reconsideration filed

by petitioner Republic of the Philippines through the Office of
the Solicitor General (OSG).
The facts of the case are as follows:
Respondent requested from the National Statistics Office
(NSO) a Certificate of No Marriage (CENOMAR) as one of
the requirements for her marriage with her boyfriend of five
years. Upon receipt thereof, she discovered that she was
already married to a certain Ye Son Sune, a Korean
National, on June 24, 2002, at the Office of the Municipal
Trial Court in Cities (MTCC), Palace of Justice. She denied
having contracted said marriage and claimed that she did not
know the alleged husband; she did not appear before the
solemnizing officer; and, that the signature appearing in the
marriage certificate is not hers.4 She, thus, filed a Petition for
Cancellation of Entries in the Marriage Contract, especially
the entries in the wife portion thereof. 5 Respondent
impleaded the Local Civil Registrar of Cebu City, as well as
her alleged husband, as parties to the case.
During trial, respondent testified on her behalf and explained
that she could not have appeared before Judge Mamerto
Califlores, the supposed solemnizing officer, at the time the
marriage was allegedly celebrated, because she was then in
Makati working as a medical distributor in Hansao Pharma.
She completely denied having known the supposed
husband, but she revealed that she recognized the named
witnesses to the marriage as she had met them while she
was working as a receptionist in Tadels Pension House. She
believed that her name was used by a certain Johnny Singh,
who owned a travel agency, whom she gave her personal
circumstances
in
order
for
her
to
obtain
a
passport.6 Respondent also presented as witness a certain
Eufrocina Natinga, an employee of MTCC, Branch 1, who
confirmed that the marriage of Ye Son Sune was indeed
celebrated in their office, but claimed that the alleged wife
who appeared was definitely not respondent.7 Lastly, a
document examiner testified that the signature appearing in
the marriage contract was forged.8
On May 5, 2009, the RTC rendered the assailed Decision,
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, the petition is
granted in favor of the petitioner, Merlinda L. Olaybar. The
Local Civil Registrar of Cebu City is directed to cancel all the
entries in the WIFE portion of the alleged marriage contract
of the petitioner and respondent Ye Son Sune.
SO ORDERED.9
Finding that the signature appearing in the subject marriage
contract was not that of respondent, the court found basis in
granting the latters prayer to straighten her record and
rectify the terrible mistake.10
Petitioner, however, moved for the reconsideration of the
assailed Decision on the grounds that: (1) there was no

clerical spelling, typographical and other innocuous errors in
the marriage contract for it to fall within the provisions of
Rule 108 of the Rules of Court; and (2) granting the
cancellation of all the entries in the wife portion of the alleged
marriage contract is, in effect, declaring the marriage void ab
initio.11
In an Order dated August 25, 2009, the RTC denied
petitioners motion for reconsideration couched in this wise:
WHEREFORE, the court hereby denies
Reconsideration filed by the Republic of
Furnish copies of this order to the Office
General, the petitioners counsel, and
government agencies.
the Motion for

the Philippines.
of the Solicitor
all concerned
We deny the petition.

At the outset, it is necessary to stress that a direct recourse
to this Court from the decisions and final orders of the RTC
may be taken where only questions of law are raised or
involved. There is a question of law when the doubt arises as
to what the law is on a certain state of facts, which does not
call for the examination of the probative value of the
evidence of the parties.18 Here, the issue raised by petitioner
is whether or not the cancellation of entries in the marriage
contract which, in effect, nullifies the marriage may be
undertaken in a Rule 108 proceeding. Verily, petitioner raised
a pure question of law.
Rule 108 of the Rules of Court sets forth the rules on
cancellation or correction of entries in the civil registry, to wit:
SO ORDERED.12
Contrary to petitioners stand, the RTC held that it had
jurisdiction to take cognizance of cases for correction of
entries even on substantial errors under Rule 108 of the
Rules of Court being the appropriate adversary proceeding
required. Considering that respondents identity was used by
an unknown person to contract marriage with a Korean
national, it would not be feasible for respondent to institute
an action for declaration of nullity of marriage since it is not
one of the void marriages under Articles 35 and 36 of the
Family Code.13
Petitioner now comes before the Court in this Petition for
Review on Certiorari under Rule 45 of the Rules of Court
seeking the reversal of the assailed RTC Decision and Order
based on the following grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES
ONLY WHEN THERE ARE ERRORS IN THE ENTRIES
SOUGHT TO BE CANCELLED OR CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES
IN THE WIFE PORTION OF THE ALLEGED MARRIAGE
CONTRACT," IS IN EFFECT DECLARING THE MARRIAGE
VOID AB INITIO.14
Petitioner claims that there are no errors in the entries
sought to be cancelled or corrected, because the entries
made in the certificate of marriage are the ones provided by
the person who appeared and represented herself as
Merlinda L. Olaybar and are, in fact, the latters personal
circumstances.15 In directing the cancellation of the entries in
the wife portion of the certificate of marriage, the RTC, in
effect, declared the marriage null and void ab initio. 16 Thus,
the petition instituted by respondent is actually a petition for
declaration of nullity of marriage in the guise of a Rule 108
proceeding.17
SEC. 1. Who may file petition. Any person interested in any

act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may
file a verified petition for the cancellation or correction of any
entry relating thereto, with the Regional Trial Court of the
province where the corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction. Upon
good and valid grounds, the following entries in the civil
register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. When cancellation or correction of an
entry in the civil register is sought, the civil registrar and all
persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and Publication. Upon the filing of the
petition, the court shall, by an order, fix the time and place for
the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province.
SEC. 5. Opposition. The civil registrar and any person
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the
proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.

SEC. 7. Order. After hearing, the court may either dismiss
the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
Rule 108 of the Rules of Court provides the procedure for
cancellation or correction of entries in the civil registry. The
proceedings may either be summary or adversary. If the
correction is clerical, then the procedure to be adopted is
summary. If the rectification affects the civil status,
citizenship or nationality of a party, it is deemed substantial,
and the procedure to be adopted is adversary. Since the
promulgation of Republic v. Valencia19 in 1986, the Court has
repeatedly ruled that "even substantial errors in a civil
registry may be corrected through a petition filed under Rule
108, with the true facts established and the parties aggrieved
by the error availing themselves of the appropriate
adversarial proceeding."20 An appropriate adversary suit or
proceeding is one where the trial court has conducted
proceedings where all relevant facts have been fully and
properly developed, where opposing counsel have been
given opportunity to demolish the opposite partys case, and
where the evidence has been thoroughly weighed and
considered.21
It is true that in special proceedings, formal pleadings and a
hearing may be dispensed with, and the remedy [is] granted
upon mere application or motion. However, a special
proceeding is not always summary. The procedure laid down
in Rule 108 is not a summary proceeding per se. It requires
publication of the petition; it mandates the inclusion as
parties of all persons who may claim interest which would be
affected by the cancellation or correction; it also requires the
civil registrar and any person in interest to file their
opposition, if any; and it states that although the court may
make orders expediting the proceedings, it is after hearing
that the court shall either dismiss the petition or issue an
order granting the same. Thus, as long as the procedural
requirements in Rule 108 are followed, it is the appropriate
adversary proceeding to effect substantial corrections and
changes in entries of the civil register.22
In this case, the entries made in the wife portion of the
certificate of marriage are admittedly the personal
circumstances of respondent. The latter, however, claims
that her signature was forged and she was not the one who
contracted marriage with the purported husband. In other
words, she claims that no such marriage was entered into or
if there was, she was not the one who entered into such
contract. It must be recalled that when respondent tried to
obtain a CENOMAR from the NSO, it appeared that she was
married to a certain Ye Son Sune. She then sought the
cancellation of entries in the wife portion of the marriage
certificate.
In filing the petition for correction of entry under Rule 108,
respondent made the Local Civil Registrar of Cebu City, as
well as her alleged husband Ye Son Sune, as partiesrespondents. It is likewise undisputed that the procedural
requirements set forth in Rule 108 were complied with. The

Office of the Solicitor General was likewise notified of the
petition which in turn authorized the Office of the City
Prosecutor to participate in the proceedings. More
importantly, trial was conducted where respondent herself,
the stenographer of the court where the alleged marriage
was conducted, as well as a document examiner, testified.
Several documents were also considered as evidence. With
the testimonies and other evidence presented, the trial court
found that the signature appearing in the subject marriage
certificate was different from respondents signature
appearing in some of her government issued identification
cards.23 The court thus made a categorical conclusion that
respondents signature in the marriage certificate was not
hers and, therefore, was forged. Clearly, it was established
that, as she claimed in her petition, no such marriage was
celebrated.
Indeed the Court made a pronouncement in the recent case
of Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi
Maekara, Local Civil Registrar of Quezon City, and the
Administrator and Civil Registrar General of the National
Statistics Office24 that:
To be sure, a petition for correction or cancellation of an
entry in the civil registry cannot substitute for an action to
invalidate a marriage. A direct action is necessary to prevent
circumvention of the substantive and procedural safeguards
of marriage under the Family Code, A.M. No. 02-11-10-SC
and other related laws. Among these safeguards are the
requirement of proving the limited grounds for the dissolution
of marriage, support pendente lite of the spouses and
children, the liquidation, partition and distribution of the
properties of the spouses and the investigation of the public
prosecutor to determine collusion. A direct action for
declaration of nullity or annulment of marriage is also
necessary to prevent circumvention of the jurisdiction of the
Family Courts under the Family Courts Act of 1997 (Republic
Act No. 8369), as a petition for cancellation or correction of
entries in the civil registry may be filed in the Regional Trial
Court where the corresponding civil registry is located. In
other words, a Filipino citizen cannot dissolve his marriage
by the mere expedient of changing his entry of marriage in
the civil registry.
Aside from the certificate of marriage, no such evidence was
presented to show the existence of marriage.1wphi1Rather,
respondent showed by overwhelming evidence that no
marriage was entered into and that she was not even aware
of such existence. The testimonial and documentary
evidence clearly established that the only "evidence" of
marriage which is the marriage certificate was a forgery.
While we maintain that Rule 108 cannot be availed of to
determine the validity of marriage, we cannot nullify the
proceedings before the trial court where all the parties had
been given the opportunity to contest the allegations of
respondent; the procedures were followed, and all the
evidence of the parties had already been admitted and
examined. Respondent indeed sought, not the nullification of
marriage as there was no marriage to speak of, but the
correction of the record of such marriage to reflect the truth

as set forth by the evidence. Otherwise stated, in allowing
the correction of the subject certificate of marriage by
cancelling the wife portion thereof, the trial court did not, in
any way, declare the marriage void as there was no marriage
to speak of.
WHEREFORE, premises considered, the petition is DENIED
for lack of merit. The Regional Trial Court Decision dated
May 5, 2009 and Order dated August 25, 2009 in SP. Proc.
No. 16519-CEB, are AFFIRMED.
SO ORDERED.

Persons Part 11

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Persons Part 11

Enviado por

Direitos autorais:

Formatos disponíveis

PERSONS and FAMILY RELATIONS (Atty.

G.R. No. 115640 March 15, 1995

the children and went back to California. She claims,

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 2

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 3

conduct and demeanor in the courtroom (during most of the

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 4

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 5

SANTOS, SR. v. COURT OF APPEALS

G.R. No. 113054 March 16, 1995

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 6

After an ex-parte hearing on October 8, 1990, the trial court

Petitioner appealed this Order to the Court of Appeals. 4 In its

In this petition for review, we are asked to overturn the

The Court of Appeals erred, according to petitioner, in

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 7

have amply demonstrated their love and devotion to their

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 8

ESLAO v. COURT OF APPEALS

The right of the mother to the custody of her daughter

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 9

roughly P21,000, she spends about P10,000 for the

Despite the foregoing, however, and petitioners

WHEREFORE, finding the petition to be meritorious, the

On the other hand, the side of the petitioner must also be

x x x legitimately, anxiously, and desperately trying to get

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 10

IN VIEW WHEREOF, the decision appealed from dated

We are not persuaded by such averments.

In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 11

once, MICHAEL had to quit school temporarily.

Meanwhile, on September 24, 1999, respondent filed a

On September 27, 1999, petitioner filed in the habeas

The parties appeared with their respective lawyers. A

Effective this Saturday and every Saturday thereafter until

he would not tell unverifiable stories anymore.

That the parties agreed to submit themselves to Dr. Teresito

he will regain his easy-going attitude.

REYMOND graduated from college with a degree in LAW in

His work history is as follows:

On January 6, 2000, Dr. Ocampo submitted the results

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 12

1985 to 1989 he operated fishponds.

The Zung anxiety/depression test: My mind is as clear as it

5-years and 10-years intervals of drug-free periods.

The Rorschach ink blot test gave responses such as man

II BASED on such scientific and observable criteria, I

The ZUNG anxiety/depression test highlighted I get tired for

III I DO NOT DETECT any evidence that the paternal visits

The Social Adaptation Scale scored well in her capacity to

The findings on the examination of the MENTAL STATUS

On January 14, 2000, the trial court rendered the

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 13

and foremost consideration is the physical, educational,

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 14

The [respondent] court/Judge is hereby directed to consider,

[G.R. No. 154994. June 28, 2005]

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 15

The Court believes that [Joycelyn] had no reason to take the

PERSONS and FAMILY RELATIONS (Atty. Vincent Juan) 16

The [M]otion to Dismiss is hereby DENIED;

the mother, unless the court finds compelling reasons to

The Courts Ruling