HERALD BLACK DACASIN, G.R. No.

168785
Petitioner,
Present:
CARPIO, J., Chairperson,
BRION,
- versus - DEL CASTILLO,
ABAD, and
PEREZ, JJ.
SHARON DEL MUNDO DACASIN, Promulgated:
Respondent. February 5, 2010
x----------------------------------------------------------------------------------------x

DECISION
CARPIO, J.:
The Case
For review[1]is a dismissal[2]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
(Agreement[4]) 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
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
Code[6]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 Vested With Jurisdiction
to Enforce Contracts
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 custody[17]to the mother is mandatory,[18]grounded on
sound policy consideration,[19]subject 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 decisionmaking 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.

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.
Romillo[27]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 post-divorce 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.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE P. PEREZ
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice

Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]

Under Rule 45 of the 1997 Rules of Civil Procedure.

In the Orders dated 1 March 2005 and 23 June 2005 issued by the Trial Court of Makati City, Branch 60.
[3]
Petitioner did not contest the proceedings.
[4]
Denominated Compromise Agreement on Child Custody and Support.
[5]
Under Article 15 of the Civil Code which provides: Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
[6]
This provides: No compromise upon the following questions shall be valid: x x x (5) The jurisdiction of courts[.]
[7]
The trial court held (Records, pp. 157-158):
[2]

[H]aving expressly recognized the validity of the Illinois Courts judgment [petitioner] is bound by
its provisions including the provision that the Court wouldmaintain sole jurisdiction to implement
and enforce the provisions of the said judgment which necessarily included guidelines for the
childs custody.
[Petitioner] being admittedly an American, following the nationality rule which Philippine civil laws adhere to, the
Judgment of the Illinois Court would be binding upon him since the judicial disposition refers to matters of status or
legal capacity of a person.
xxxx
Moreover, this Court cannot act upon [petitioners] prayer to enforce the terms of the said Compromise Agreement
the said agreement being invalid and therefore, void, precisely because it seeks to transfer jurisdiction over the issue
of child custody from the Illinois Court to this Court by agreement of the parties, when the previous Court had
already effectively asserted its authority to act upon all matters relating to the said issue.
In this regard, Art. 2035 of the Civil Code expressly states that no compromise upon the questions
of civil status of persons, validity of marriage, or legal separation, future support, jurisdiction of
courts and future legitimate shall be valid.

[8]

As a corollary claim, petitioner submits that the stipulation in the Agreement vesting exclusive jurisdiction to
Philippine courts over conflicts arising from the Agreement, even if void for being contrary to Article 2035,
paragraph 5 of the Civil Code, is severable from and does not affect the validity of the other terms of the
Agreement on joint custody.
[9]
Section 19, paragraph 1, Batas Pambansa Blg. 129, as amended by Republic Act No. 7691, provides: Jurisdiction
in civil cases.- Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in
which the subject of the litigation is incapable of pecuniary estimation; x x x x
[10]
See Ortigas & Company, Limited Partnership v. Herrera, 205 Phil. 61 (1983).
[11]
Records, p. 17 (emphasis supplied).
[12]
Article 1306 of the Civil Code provides: The contracting parties may establish such stipulations, clauses, terms
and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public
order, or public policy.
[13]
Article 1409, paragraph 1 of the Civil Code provides: The following contracts are inexistent and void from the
beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public
policy; x x x x
[14]
It can be inferred from the terms of the Agreement that the parties intended to be bound by Philippine law on its
intrinsic validity (this is evident, for instance, from the stipulation selecting Philippine courts as exclusive forum to
settle any legal issue or dispute that may arise from the provisions of [the] Agreement and its interpretation x x x
(Records, p. 19; emphasis supplied). At any rate, Philippine law has the most substantial connection to the contract,
considering its object (custody of a Filipino-American child), subject (Filipino-American child under seven years of
age, born of a Filipino mother, both of whom reside in the country) and parties (Filipina mother and alien father).
[15]
Including those marriages whose vinculum has been severed (see SEMPIO-DY, HANDBOOK ON THE FAMILY
CODE OF THE PHILIPPINES 67-68 [1988]).
[16]
The provision states: 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. (Emphasis supplied)
[17]
Gamboa-Hirsch v. Court of Appeals (Res.), G.R. No. 174485, 11 July 2007, 527 SCRA 320 (reversing the Court
of Appeals ruling mandating joint custody and awarding sole custody to the mother).
[18]
Perez v. Court of Appeals, 325 Phil. 1014 (1996). For children over seven, custody decisions are guided by the
standard of best interest of the child.
[19]
Our discussion in Pablo-Gualberto v. Gualberto V, G.R. No. 154994, 28 June 2005, 461 SCRA 450, 471-472, on
the statutory genealogy and policy grounding of the second paragraph of Article 213 is enlightening:
[A]rticle 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.
The general rule that children under seven years of age shall not be separated
from their mother finds its raison detre in the basic need of minor children for their
mothers loving care. In explaining the rationale for Article 363 of the Civil Code, the
Code Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The exception allowed by the
rule has to be for compelling reasons for the good of the child: those cases must
indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as
in cases of adultery, the penalty of imprisonment and the (relative) divorce
decree will ordinarily be sufficient punishment for her. Moreover, her moral
dereliction will not have any effect upon the baby who is as yet unable to
understand the situation. (Report of the Code Commission, p. 12)

[20]

Sole maternal custody is denied only for compelling reasons such as neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a
communicable disease (Id. at 476; internal citation omitted).
[21]
Civil Code, Article 211, as amended.
[22]
See note 20.
[23]
See note 19.
[24]
Id.
[25]
This line of argument can be subsumed under the rubric of unfair state intervention but this complaint can very
well be leveled against the entire field of family law where the state injects itself on a host of areas
impinging on the decision-making capacity and autonomy of individuals ranging from the intensely
personal (e.g. who can marry [Article 5, Family Code], where to marry [Article 5, Family Code], who can
celebrate the marriage [Article 5, Family Code], and how to relate to ones spouse [Articles 68-72]) to
proprietary (e.g. Articles 74-125, Family Code, on property relations of spouses and Articles 194-208,
Family Code, on support) to familial (e.g. Articles 209-233, Family Code, on parental authority).
[26]
Petitioner hooks his argument on Gonzales v. Gonzales (58 Phil. 67 [1933]), Arca v. Javier (95 Phil. 579 [1954])
and Tenchavez v. Escao (122 Phil. 752 [1965]). These cases, involving Filipino spouses, merely applied the
nationality rule (now embodied in Article 15 of the Civil Code) to reject validating foreign divorce decrees
obtained by Filipino spouses to circumvent the no-divorce rule in this jurisdiction. They are no authority to
support petitioners submission that as to aliens, foreign divorce decrees are void here.
[27]
223 Phil. 357 (1985).
[28]
Id. at 361-363.Van Dornspawned the second paragraph of Article 26 granting to Filipino spouses of aliens who
obtain foreign divorce decrees the right to remarry. (Republic v. Orbecido III, G.R. No. 154380, 5 October
2005, 472 SCRA 114).
[29]
G.R. No. 80116, 30 June 1989, 174 SCRA 653.
[30]
Bagtas v. Santos, G.R. No. 166682, 27 November 2009.
[31]
Thus, in habeas corpus proceedings involving child custody, judicial resolutions extend beyond the custodial right
of persons exercising parental authority over the child and reach issues on custodial arrangements serving
the childs best interest (see Bagtas v. Santos, id., remanding a habeas corpus petition to determine the
fitness of the legal custodians notwithstanding that the question of illegal withholding of custody has been
mooted by the transfer of the childs physical custody to the habeas corpuspetitioners).

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 IbaySomera 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.
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 non-relative 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 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. 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. 206209, 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 crossexamination, 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 nonexistent 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.

AGNES GAMBOA-HIRSCH G.R. No. 174485

Petitioner,
Present:
QUISUMBING, J., Chairperson,
- versus - CARPIO,

CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
HON. COURT OF APPEALS Promulgated:
and FRANKLIN HARVEY HIRSCH,
Respondents. July 11, 2007
x-----------------------------------------------------------------------------------------x

R E S O LU T I O N

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.
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. On December 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,
while Franklin 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 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. 0303-04-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.

(B)
The Court of Appeals seriously erred and acted with grave
abuse of discretion amounting to lack or excess of
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)
The Court of Appeals seriously erred and acted with grave
abuse of discretion amounting to lack or excess of
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
[5]
consideration (emphasis supplied). 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.