Escolar Documentos
Profissional Documentos
Cultura Documentos
THE FAMILY
6.
The family, being the foundation of the nation, is a basic social institution
which public policy cherishes and protects. Consequently, family relations are
governed by law and no custom, practice or agreement destructive of the
family shall be recognized or given effect.
Family relations include
1. Between the husband and wife
2. Parent and Children
3. Among other ascendants and descendants
4. Brothers and Sisters whether full or half blood
General Rule
For a suit between members of the same family to prosper, the ff are
required, otherwise the case will be dismissed.:
1. Earnest efforts towards compromise have been made
2. Such efforts have failed
3. Such earnest efforts and the fact of failure must be alleged
>>Exceptions CVLFJF
1. Civil status of Persons
2. Validity of Marriage or Legal Separation
3. Grounds for Legal Separation
4. Future Support
5. Jurisdiction of Courts
6. Future Legitime
HIYAS SAVINGS BANK V. ACUNA
Once a stranger becomes a party to a suit involving members of the
same family, the law no longer makes it a condition precedent that
earnest efforts be made towards a compromise before the action can
prosper. Article 151 is applicable only in cases which are exclusively
between or among members of the same family, it necessarily follows
that the same may be invoked by a party who is a member of that same
family.
General Rule:
Family home is exempt from
1. Execution
2. Forced Sale
3. Attachment
>>Exception:
1. Non-payment of taxes
2. Debts incurred prior to the constitution of the family home
3. Debts secured by mortgages on the premises before or after such
constitution
4. Debts due on Laborers, Mechanics, Architects, Builders,
Materialmen and others who have rendered service or furnished
material for the construction of the building
Requisites to be a beneficiary
1. Relationship is w/I those enumerated
2. They live in the family home
3. They are dependent for legal support on the head of the family
Requirements for the Sale, Alienation, Donation, Assignment or Encumbrance
of Family Home
1. The written consent of the person constituting it
2. His/her spouse
3. Majority of the beneficiaries of legal age
***In case of conflict, the court shall decide
In case of Death
The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of ten
years, or for so long as there is a minor beneficiary
The heirs cannot partition the home unless the court finds
compelling reasons therefor
Requisites for Creditor to avail right under 160
1. He must be a judgment creditor
2. His claim is not among those excepted under Art. 155
3. He has reasonable grounds to believe that the family home is worth
more than the maximum amount fixed under 157
FAMILY HOME
Dwelling place of a person and his family
Guidelines
1.
2.
3.
4.
a.
b.
c.
In this case, March 7, 1964, Pablo Taneo constituted the house in question,
erected on the land of Plutarco Vacalares, as the family home. The instrument
constituting the family home was registered only on January 24, 1966. The
money judgment against Pablo Taneo was rendered on January 24, 1964.
Thus, at that time when the debt was incurred, the family home was not yet
constituted or even registered. Clearly, petitioners alleged family home, as
constituted by their father is not exempt as it falls under the exception of
Article 243(2).
CABANG V. BASAY
Cabang mistakenly occupied the lot owned by Basay that was the subject
matter of a case that was earlier decided up to the Supreme Court. The writ of
execution was opposed on the ground that the houses of petitioners family
home was still subsisting and being such, it is not subject to execution.
SC: The family home must be established on a) the absolute community, or b)
the conjugal partnership, or c) the exclusive property of either spouse with the
consent of the other. It cannot be established on a property held in coownership with third persons. However, it can be established partly on the
community property, or conjugal partnership and partly on the exclusive
property of either spouse with the consent of the owner-spouse.
In the case at bar, the stark and immutable fact is that the property on which
their alleged family home stands is owned by respondents and the question
of ownership had been long laid to rest with the finality of the appellate
courts judgment. Thus, Cabangs continued stay on the subject land is only
by mere tolerance of respondents. A family home cannot be established on
property held in co-ownership with third persons. The family home must be
established on properties of the ACP, CPG, or EP of either of the spouses with
the consent of the other, or EP of the unmarried head of the family.
Artificial Insemination
Requisites of children conceived through artificial insemination to
be considered legitimate
1. Artificial Insemination made on wife
2. Sperm comes any of the following
a. Husband
b. Donor
c.
Husband and Donor
3. In case of donor sperm, husband and wife must
authorize/ratify insemination in a written instrument
a. Executed and signed by husband and wife
before the birth of the child
b. Recorded in the civil registry together with the
birth certificate of the child
Illegitimate Children
Those conceived and born outside of a valid marriage
>> Exceptions:
a) Children of marriages void under Art. 36
b) And under Art. 53, second marriage of a widow or widower who has
not delivered to his or her children by his or her first marriage the
legitime of said children
II.
IMPUGNING LEGITIMACY
A. Grounds
Thus the grounds for impugning the legitimacy of a child are:
PATERNITY AND FILIATION
I.
II.
III.
IV.
V.
KINDS OF FILIATION
IMPUGNING LEGITIMACY
PROOF OF FILIATION
LEGITIMATION
RIGHTS OF LEGITIMATE OR ILLEGITIMATE CHILDREN
1.
2.
3.
I.
1.
2.
KINDS OF FILIATION
Natural
a) Legitimate
b) Illegitimate
Legal Fiction through Adoption
Legitimate Children
Conceived or born during the marriage of parents;
Maybe through natural means or by artificial insemination
1.
Natural/Biological
3.
If the birth of the child has been concealed or was unknown to the husband,
the above provisions shall be counted:
1. Discovery or knowledge of the birth of the child; or
2. From the discovery or knowledge of its registration
3. Whichever is earlier
Legitimacy can only be attacked directly
General Rule: Only the husband can impugn the legitimacy of a child. If he
does not bring action within the prescribed periods, he cannot file such action
anymore thereafter, and this is also true with his heirs.
>>Exception: That the heirs of the husband may file the action or continue the
same if it has already been filed and the husband died
a. before the expiration of the period fixed for bringing his action
b. after the filing of the complaint without having desisted
c. If the child was born after the death of the husband.
III. Proof of Filiation
A. Rules
A. Rules
Legitimate or illegitimate children may prove their filiation in the same way
and on the same evidence.
General Rule: They may only prove their status using the following pieces of
evidence:
1. Their record of birth appearing in the civil registry.
2. An admission of his filiation (legitimate or illegitimate) by his
parent or parents in a public document or a private handwritten
instrument and signed by said parent or parents. (SEMPIO-DIY)
3. Proof of open and continuous possession of status as legitimate
or illegitimate child
4. Any other means stated by the rules of court or special laws
163-171 CASES
DE JESUS V. ESTATE OF DIZON
The due recognition of an illegitimate child in a record of birth, a will, a
statement before a court of record, or in any authentic writing, is in itself a
consummated act of acknowledgment of the child, and no further court
action is required.
The presumption of legitimacy fixes a civil status for the child born in wedlock,
and only the father, or in exceptional instances the latters heirs, can contest
in an appropriate action the legitimacy of the child born to his wife. Thus, it is
only when the legitimacy of a child has been successfully impugned that the
paternity of the husband can be rejected.
BADUA V. CA
Articles 164, 166, 170 and 171 are not applicable in the instant case. These
articles govern a situation where a husband (or his heirs) denies as his own a
child of his wife but not where a child is alleged not to be the child of nature
or biological child of a certain couple.
ONG V. DIAZ
The heirs, who substituted Rogelio when he died, insisted that the
decision of the appellate court remanding the case to the trial
court for DNA testing analysis be set aside and to declare Joanne
as the legitimate child of Jinky and Hasegawa.
SC: The burden of proving paternity is on the person who alleges that the
putative father is the biological father of the child.
the death of Rogelio does not ipso facto negate the application of
DNA testing for as long as there exist appropriate biological
samples of his DNA. Biological samples include blood, saliva, and
other body fluids, tissues, hairs and bones.
B. Action for claiming filiation
The child can bring the action during his or her lifetime and even
after the death of parents. The action does not prescribe as long as
he lives.
FERNANDEZ V. CA
Violeta Esguerra, single, mother and guardian ad litem of petitioners Claro
Antonio Fernandez and John Fernandez, pointed to Carlito S. Fernandez as
father of petitioners. She claimed that she and Carlito started their illicit
sexual relationship six months after their first meeting sometime in 1983
which resulted to the birth of petitioners. Violetta averred that they were
married in civil rights and claimed it was unknown to her that Carlito was
married until the birth of their child and discovered that their marriage license
was spurious.
o CLB, identifying their father as Carlito Fernandez,
o Baptismal certificate of Claro stating the same,
o photographs taken during baptism and in the house of Violetta
showing Carlitos showering of affection to Claro.
o witnesses who contended that Violetta had introduced Carlito at
different times to them as her husband.
Carlito denied Violettas allegations and averred that he only served
as a sponsor in the baptism of Claro. Such claim was corroborated by
his officemate who was also a sponsor of said baptism.
baptism; the photo showing Carlito showering his affection to Claro falls
short as evidence to prove paternity.
o Baptismal Cert naming him as father- has scant evidentiary value
because there is no showing that private respondent participated in its
preparation.
o CLB is not also competent evidence on the issue of paternity
because the records do not show that private respondent had a hand in
preparation thereof.
Rodolfo presented
o
baptismal certificate and
o
an application for recognition of backpay rights by Dr.
Fernandez stating hes the son of the latter.
RTC declared the deeds null and void and found Rodolfo was not
legitimate nor a legally adopted child of the spouses Fernandez. CA
affirmed the trial courts judgment.
W/N Rodolfos filiation can be collaterally attacked in an action for the nullity
of the sale and extrajudicial settlement. W/N Baptismal Certificate is
admissible as proof of filiation.
o
o
Petitioner claimed that her true name is not Ida Lagabala but Ida
Santiago and that she is the daughter of Jose, thus she is entitled
to his share in the subject property. She argued that the purported
sale was in fact a donation to her.
CA reversed
o
BC of Ida Lagabala presented by respondents showed
that Ida was born of different parents, not Jose and his
wife.
W/N petitioner has adduced preponderant evidence to prove that she is the
daughter of Jose Santiago.
NO.
Juan Locsin, Jr. herein respondent, filed with the RTC a petition
praying that he be appointed as administrator of the intestate
estate of the deceased Juan Locsin, Sr.
o
Alleged that he is acknowledged natural child of the
deceased and that he is the only surviving legal heir of
the decedent.
o
machine copy of his CLB found in the bound of the
volume of birth records in the office of the LCR.
o
LR officer as witness.
o
photograph showing him and his mother in front of a
coffin bearing Juan Locsin, Sr.s dead body as claim that
he and his mother have been recognized as family
members of the deceased.
CA affirmed.
As between the original certificate of live birth issued in the place where the
alleged birth took place and a certified true copy issued by the civil registrar
general but has entries different from the one issued by the local civil
registrar, which copy must prevail?
BIRTH RECORD.
o
Since the records of birth cover several decades and
come from all parts of the country, to merely access
them in the civil registry general requires expertise. To
locate one single record from the mass, a regular
employee, if not more has to be engaged.
o
It is highly unlikely that any of these employees in Metro
Manila would have reason to falsify a particular 1957
birth record originating from the local civil registry of
Iloilo City.
PHOTOGRAPH with his mother near the coffin of the late Juan C.
Locsin cannot and will not constitute proof of filiation, lest we
recklessly set a very dangerous precedent that would encourage
and sanction fraudulent claims.
o
Anybody can have a picture taken while standing before
a coffin with others and thereafter utilize it in claiming
the estate of the deceased.
BERNABE V. ALEJO
Late fiscal Bernabe allegedly fathered da son with his secretary, herein
plaintiff appellant Carolina Alejo on 1981. Spouses Bernabe died in 1993
leaving Ernestina as the sole heir.
CA reversed.
ISSUE: The child was born in 1981. The alleged father died in 1993. May the
child be allowed to prove his filiation despite the clear provision of Art. 175 of
the Family Code which requires that if the action to establish illegitimate
filiation is based on the 2nd paragraph of Art. 172 the action may be brought
during the lifetime of the alleged parent?
HELD: YES
-Art. 285 is a substantive law, as it gives the child the right to file
his petition for recognition within 4 years after attaining the age of
majority.
ACTION PRESCRIBED. There was apparently no doubt that she possessed the
status of an illegitimate child from her birth until the death of her putative
father Guillermo Rustia. However, this did not constitute acknowledgment but
a mere ground by which she could have compelled acknowledgment through
the courts.
o
Furthermore, any judicial action for compulsory acknowledgment
has dual limitation:
The lifetime of the child and the lifetime of the putative
father. On the death of either, an action for compulsory
recognition can no longer be filed.
HELD: YES.
o
the letters of petitioner are declarations that lead nowhere but to
the conclusion that he sired Verna Aiza. Although petitioner used
an alias (Ninoy) in these letters, the similarity of the penmanship in
these letters vis the annotation at the back of petitioners fading
photograph as a youth is unmistakable. Even an inexperienced eye
will come to the conclusion that they were all written by one and
the same person, petitioner, as found by the courts a quo.
CLB or
Relationship
Family genealogy
Petition and recognition of Support filed by for Lopez who was born
out of extramarital affair of her mother and Nepomuceno.
SC: The action for support has to determine filiation being lodged
on the obligation to support found in Art. 195 in rel 194 (4) parents
of illegitimate children and the leg/illeg of the latter.
NO. The note does not contain any statement whatsoever about
filiation to petitioner. In establishing filiation, the putative father
must claim the filiation himself and must be written by the father.
Therefore, it is beyond ambit of 172(2) which admits its competent
evidence of illegitimate filiation an admission in a private
handwritten instrument signed by the party concerned.
o
No signature in Handwritten Note
o
No signature in BC
NO.
Affirmative defenses
Presumption of Legitimacy
Physical Resemblance
Affirmative Defenses:
o
Incapability due to impotency
o
Mother had sexual relations w/ other men
Mirasol Perla averred that they were sweethearts and when she
got pregnant he promised to support her
o
CLB and BC indicating Antonio as father and testified he
supplied the info.
o
Randy, 15 y/o testified that he was at a vacation in his
Aunts house and Antonio promised for support.
o
Witness neighbor corroborated
SC: NO.
o
Failure to establish Illegitimate filiation
o
Art. 172
CA affirmed:
o
ROC; testimony about apartment, etc. even absence of
CLB
W/N filiation of the child was duly established according to 175 in relation to
172 and therefore entitled for support.
SC: NO
o
o
o
Edna claimed that he is not the son of the spouses but a mere
stranger who was raised; not a natural nor adopted child; that
since Alfredo predeceased his wife, Candelaria inherited the
conjugal share of Alfredo; that upon death of Candelaria, her
brother and sister inherited her estate and the subject tiles were
not stolen but entrusted to her for safekeeping by Candelaria, who
is her Aunt.
o
Testimony of Aureas who stated that she does not know
petitioner, that he knows of Rodolfo, but denies
petitioner as son of spouses
o
Affidavit that Candelaria is the sole heir of her husband
W/N SSS E-1 acknowledged and notarized before a notary public, executed by
Alfredo Aguilar, recognizing the petitioner as his son is public document that
satisfies the requirement of Art. 172(2) to establish petitioner as son of
spouses
SC: YES
o
IV. LEGITIMATION
Legitimated children are illegitimate children who because of the subsequent
marriage of their parents are, by legal fiction, considered legitimate.
Persons Affected
Procedure
Who applies
Effect
ADOPTION
I.
II.
III.
RA 8552
a. Who may adopt
b. Who may be adopted
Adoption Procedure Under 8552 IRR
a. Pre-adoption Services
b. Effects of Adoption
c.
Rescission of Adoption
d. Effects of Rescission
e. Rectification of Simulated Births
RA 8043: Inter-Country Adoption Act of 1995
a. Who may adopt
b. Who may be adopted
c.
Where to file application
d. Documents to support Application
e. Inter-country Adoption Board
f.
Trial Custody
LEGITIMATION
The law merely makes
legal what exists by
ADOPTION
Law merely creates by
fiction a relation which
nature
Only the natural
children
Extrajudicial acts of
parents
Only by both parents
Same status and rights
with that of a legitimate
child not only in relation
to the legitimazing
parents but also other
relatives
Guardians
Adopter
Inquiry at DWSD
2.
3.
C.
4.
4.
5.
6.
7.
8.
B.
Tamargo v. CA (1992)
Where the petition for adoption was granted after the child had shot and
killed a girl, the Supreme Court did not consider that retroactive effect may be
given to the decree of adoption so as to impose a liability upon the adopting
parents accruing at a time when adopting parents had no actual or physically
custody over the adopted child.
Retroactive effect may perhaps be given to the granting of the petition for
adoption where such is essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant case, however, to hold
that parental authority had been retroactively lodged in the adopting parents
so as to burden them with liability for a tortuous act that they could not have
foreseen and which they could not have prevented would be unfair and
unconscionable.
III. RA 8043: Inter-Country Adoption Act
of 1995
Intercountry Adoption refers to the socio-legal process of adopting a Filipino
child by a foreigner or a Filipino citizen permanently residing abroad where the
petition is filed, the supervised trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.
A. WHO MAY ADOPT? (sec. 9)
Any foreign national or a Filipino citizen permanently residing abroad
who has the qualifications and none of the disqualifications under the
Act may file an application if he/she:
1.
2.
3.
E.
F.
LAHOM V. SIBULO
Dr. Diodado Lahom & Isabelita adopted the latters nephew Jose Sibulo at
age of two. LCR of Naga changed the surname of Jose.
Sexual Assault
Law governing at the time the petition was filed (Rep. v. Miller)
o
Having been instituted after 8552s effectivity, it cannot
be pursued.
o
Even before the passing of statute, the action to rescind
is subject to the 5yr bar rule under Rules of Court and
that the adopter would lose the right after the lapse of
said period.
o
A person has no vested right in statutory privileges.
Adoption is merely a right created by statute.
Minors Elaine, Elma, and Eugene were the children of Amelia and the late
Manuel Ramos. After Manuels death, the children were left under the
custody of their paternal grandmother because Amelia left for Italy. When the
paternal grandmother died, the children were taken cared of by a paternal
uncle.
Landingin, the 57-year old aunt and sister of the late Manuel and an
American citizen residing in Guam, now desires to adopt the 3 children. In her
petition, she alleged
that the mother of the children had abandoned them and had not
communicated with her children neither with her in-laws.
Amelia has already remarried and has 2 children with her 2nd
husband. That petitioner and her other siblings were the ones
financially supporting the children.
She is already a widow and living alone because all her children
are already married and are gainfully employed.
They have given their consent in writing to the adoption, and also
promised to help her in supporting the children financially.
SC:
Section 9 of RA 8552 (Domestic Adoption Act of 1998) provides:
Whose consent is necessary to the adoption:
X x x x.
(b) The biological parents of the child, if known x x x .
The general requirement of consent and notice to the natural
parents is
intended to protect the natural parental relationship from
unwarranted interference by interlopers, and to insure the
opportunity to safeguard the best interest of the child.
Clearly, the written consent of the natural parents is indispensable
for the validity of a decree of adoption.
In this case, petitioner failed to submit the written consent of Amelia to the
adoption. Petitioners argument that her consent is no longer necessary
because she left for Italy and never came back, hence, Amelia had
abandoned the children and it was just by twist of fate that after 12 years
Amelia was on vacation and was able to meet Pagbilao, must be rejected.
If, as claimed, that the biological mother had abandoned them, she should
have adduced the written consent of the childrens legal guardian. Merely
permitting the child to remain for a time undisturbed in the care of others
does not constitute abandonment. To dispense with the requirement of
consent, the abandonment must be shown to have existed at the time of
adoption.
Here, petitioner relied solely on her testimony and that of Elaine, the eldest of
the 3, to prove that Amelia abandoned them. The Home Study Report tends
to show otherwise. Elaine during the interview said that in serious problems
she already consult her mother and petitioner-aunt. And while petitioner and
other paternal relatives are continuously providing for most of their needs and
education, Amelia would also send financial support ranging from
P10,000.00 to P15,000.00 a month through her parents and share
P3,000.00 to P5,000.00 thereof with the children.
Thus, Amelia left for Italy without intention of abandoning her children, or to
permanently sever their mother-child relationship. She was merely impelled to
leave the country by financial constraints. Yet, even while abroad, she did not
surrender or relinquish entirely her motherly obligations of rearing her
children to her now deceased mother-in-law.
Petitioner failed to offer in evidence Pagbilaos report and the joint affidavit of
consent purportedly executed by her children; the authenticity of which she,
likewise, failed to prove.
As to her financial capacity, the Report stated that petitioner is 57 years old,
employed on a part-time basis as a waitress, earning $5.15 an hour and tips
of around $1,000.00 per month. That she owns her house at Quitugua Subd.,
Yigo, Guam but the same is still being amortized. Given these limited facts, it
is doubtful whether petitioner will be able to sufficiently handle the financial
aspect of rearing the 3 children in the US. While she claims that she has the
financial support and backing of her children, the OSG is correct in stating
that the ability to support the adoptees is personal to the adopter, as
adoption only creates a legal relation between the former and the latter.
Moreover, no proof was adduced to prove her allegation that her children and
siblings are willing to support the minors herein.
Michelle was given to the spouses Lim in 1977 while Michael was delivered in
1983. They were only about 11 days old when they were given to the spouses
Lim who had them registered as if they were their own children. They were
reared and cared for and were sent to exclusive schools and used the
surname Lim in all their school records and documents. In 1988, the
husband died and the surviving spouse entered into another marriage with an
American citizen, Olario.
Monina (the surviving spouse) then filed two separate petitions to adopt the
children by availing of the amnesty given under RA 8552 or the Domestic
Adoption Act of 1998 to those individuals who simulated the birth of the child.
Both children, who are already of legal age, gave their consent including
Michelles husband to the adoption. Olario likewise executed an affidavit of
consent for the adoption of Michelle and Michael.
FC denied the petition because inasmuch as Monina has remarried, her
petition should have been jointly filed with her new husband.
ISSUE: Whether Monina, who has remarried, can singly adopt?
SC: It is undisputed that at the time the petitions for adoption were filed,
petitioner had already remarried. She filed the petition by herself, without
being joined by her husband Olario. The law is explicit.
enjoy all the benefits to which biological parents are entitled such as support
and successional rights.
SUPPORT
I. GENERAL PROVISIONS
A. KINDS
B. CHARACTERISTICS
C. HOW SUPPORT IS GIVEN
II. WHO ARE OBLIGED TO SUPPORT EACH OTHER
III. PROPERTIES ANSWERABLE FOR SUPPORT
IV. ORDER OF SUPPORT
A. IF THERE ARE MULTIPLE OBLIGORS
B. IF THERE ARE MULTIPLE RECIPIENTS
I.
SUPPORT
Consists of everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family (Art. 194)
A. KINDS OF SUPPORT
1. Legal- that which is required to be given by law
2. Judicial that which is required to be given by court order whether
pendente lite or in a final judgment
3. Voluntary or Conventional by agreement
B. CHARACTERISTICS OF SUPPORT (PREVIEW)
1. Personal
2. Intransmissible
3. Not subject to Waiver or compensation with regard to future
support
4. Exempt from attachment or execution, except if support is
contractual or given by will. In such cases, any excess legal support
can be subject to levy on attachment or execution
5. Reciprocal on the part of those who are by law bound to support
each other
6. Variable
C. HOW SUPPORT IS GIVEN (ART. 204)
1. Payment of the amount;
2. Accepting the recipient in the home of the provider, unless there is
a legal or moral obstacle from doing so
II. WHO ARE OBLIGED TO SUPPORT EACH OTHER (ART. 195)
1. Spouses;
2. Legitimate ascendants and descendants
3. Parents and their children (legitimate and illegitimate) and the
children of the latter (legitimate and illegitimate);
4. Legitimate brothers and sisters, whether of full or half-blood;
5. Illegitimate brothers and sisters, EXCEPT when the need for
support of one (of age) is due to a cause imputable to his/her fault
or negligence (Art. 196)
NOTE: Both legitimate and illegitimate children are entitled to support
III. PROPERTIES ANSWERABLE FOR SUPPORT (ART. 197-198)
1. From the separate property of the obligor. If no separate property,
the ACP/CPG (if financially capable) shall advance the support, to
be deducted from the obligors share upon liquidation of such
regime.
2.
[Note: De facto separation does not affect the ACP, except that the spouse
who leaves the conjugal home without just cause shall not be entitled to
support (Art. 100)
IV. ORDER OF SUPPORT (SDAB)
A. Order of support if there are multiple obligors (2 or more; Art. 199)
1. Spouses
2. Descendants, nearest in degree
3. Ascendants, nearest in degree
4. Brothers and Sisters
When two or more are obliged to give support, the payment shall be
divided between them IN PROPORTION to their resources
Also, in case of URGENT NEED and by special circumstances, judge
may order only one obligor to furnish support without prejudice to
reimbursement from other obligors of the share due from them
(Art. 200)
CASES on SUPPORT
DE ASIS V. CA
The putative father moved for the dismissal of the case on the
ground of res judicata.
SC: Such manifestation does not bar the mother from filing a subsequent
case for support on behalf of the same child against the same defendant
because such manifestation and the agreement to dismiss the case on
condition that the defendant will not pursue the counterclaim constitute a
form of renunciation as they severed the vinculum that gives the child the
right to claim support from the putative parent.
In all cases involving a child, his interest and welfare are always
the paramount concerns. There may be instances where, in view
of the poverty of the child, it would be a travesty of justice to
refuse him support until the decision of the trial court attains
finality while time continues to slip away.
Petitioner then filed, for and in behalf of the twins a petition for
declaration of legitimacy and support with application for support
pendente lite before the RTC of Makati.
o
As legitimate children and grandchildren, the twins are
entitled to general and educational support under
SC:
The pertinent provision is Article 199 of the FC;
There being prima facie showing (letters from GP) that Mangonon
and Federico are the parents of Rica and Rina, they are primarily
charged to support their childrens college education. In view
however of their incapacities, the obligation to furnish said support
shall be borne by Francisco.
Under Article 199 of the FC, as the next immediate relative of the
twins, is tasked to give support to his granddaughters in default of
their parents. It having been established that he has the financial
means to support the twins education, he, in lieu of Federico
should be liable for support pendente lite.
While respondents have the option under Article 204 to fulfill the
obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has the right to
receive support. The latter alternative cannot be availed of in case
there is a moral or legal obstacle thereto.
Spouses Cheryl and Edward and their 3 children live with Edwards parents,
and his grandmother. Edward is receiving P6,000.00 from their family
business. Cheryl, on the other hand, had no steady source of income.
In 1990, Cheryl together with her 3 children left her in-laws house
after a violent confrontation with Edward whom she caught with inhouse midwife of his grandmother in what the court described as
a very compromising situation.
She then sued Edward together with his parents and grandparents
for support.
Cheryls right to receive support from the Lim family extends only to
her husband Edward, arising from their marital bond.
DOLINA V. VALLECERA
SC: To be entitled to legal support one first establish the filiation of the child,
if the same is not admitted or acknowledged. Since Dolinas demand for
support for her son is based on her claim that he is Valleceras illegitimate
child, the latter is not entitled to such support if he had not acknowledged
him, until Dolina shall have proved his relation to him. The childs remedy is to
file through her mother a judicial action for compulsory recognition.
If filiation is beyond question, support follows as matter of obligation.
In short, illegitimate children are entitled to support and successional rights
but their filiation must be duly proved.
While the Court is mindful of the best interest of the child in cases involving
paternity and filiation, it is just as aware of the disturbance that unfounded
paternity suits cause to the privacy and peace of the putative fathers
legitimate family.
LIM-LUA V. LUA
Susan Lim-Lua filed an action for declaration of nullity of her marriage with
Danilo
Prayed for support pending litigation for her and their children 500k
citing huge earnings of Danilo
RTC granted
213 FC, support is demandable from the time the plaintiff needed the
said support but is payable only from the date of the judicial demand.
Retroacts to the time of filing of judicial demand. (7mos. x 250k=1,
750, 000). The monthly support is w/o prejudice to any
decrease/increase thereof as circumstances may warrant.
Respondent
Petitioner is not entitled to spousal support considering she does not
maintain for herself a separate dwelling from their children and
respondent has continued to support the family for their sustenance
and well-being according to familys social and financial standing.
Disallowing deductions would result to unjust enrichment, making him
pay for the obligation twice.
That the groceries and Volkswagen and BMW are considered as
advances for support in keeping w/ the financial capacity.
Petitioner
CA erred to have allowed the deduction of the value of 2 cars and the
maintenance costs from the support in arrears, as these items were
not indispensable to the sustenance of the family or keeping them
alive.
SC: CAs decision reversed
PARENTAL AUTHORITY
Art. 209. Pursuant to the
natural right and duty of parents
over the person and property of their unemancipated children,
parental authority and responsibility shall include
the caring for and rearing them
for civic consciousness and efficiency and
the development of their moral, mental and
physical character and well-being. (n)
PA and R may not be renounced or transferred, except in the cases
authorized by law. (Art. 210, FC)
GLF-SPA-SES
Except:
1.
Guardianship (waiver of parental authority, allowed)
2.
Legal Adoption (waiver of parental authority, allowed)
3.
Final Order or judgment of a competent court
4.
Substitute Parental Authority
5.
Separation of Parents
6.
Entrusting of disadvantaged children to heads of
a.
Childrens homes
b.
Orphanages
c.
Similar institutions duly accredited
7.
Surrender of the child by its parents
(waiver of parental authority, allowed)
Done in writing
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise.
Considerations
(PC-RC-HE-TAC-FC)
Previous Care and Devotion
Religious Consideration
Home Environment
Time Availability for Care of the Child
Financial Considerations
Compelling Reasons
(CHINMIND)
Communicable disease
Habitual Drunkenness
Immorality
Neglect and Abandonment
Maltreatment of the Child
Insanity
Non-employment
Drug Addiction
IN CASE OF DEATH, ABSENCE OR UNSUITABILITY of the parents,
substitute PA shall be exercised by
the surviving grandparent.
In case several survive, the one designated by the court,
taking into account the same consideration mentioned in the
preceding article, shall exercise the authority. (355a)
Art. 215. FILIAL PRIVILEGE RULE
No descendant shall be compelled, in a criminal case, to
testify
against his parents and grandparents,
except when such testimony is indispensable in a crime
against the descendant or
by one parent against the other. (315a)
Art. 219.
Those given the authority and responsibility under the preceding
Article shall be
PRINCIPALLY AND SOLIDARILY LIABLE for damages
caused by the acts or omissions of the unemancipated minor.
The parents, judicial guardians or the persons exercising substitute
parental authority over said minor shall be SUBSIDIARILY LIABLE.
-
All other cases not covered by this and the preceding articles shall
be governed by the provisions of the Civil Code on quasi-delicts.
o
EFFECT OF PARENTAL AUTHORITY
UPON THE PERSONS OF THE CHILDREN
Art. 220.
The parents and those exercising PA shall have with the respect to their
unemancipated children on wards the following RIGHTS AND DUTIES:
To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for their
upbringing in keeping with their means;
To give them love and affection, advice and counsel,
companionship and understanding;
To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self-discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
To furnish them with good and wholesome educational materials,
supervise their activities, recreation and association with others,
protect them from bad company, and prevent them from acquiring
habits detrimental to their health, studies and morals;
To represent them in all matters affecting their interests;
To demand from them respect and obedience;
To impose discipline on them as may be required under the
circumstances; and
To perform such other duties as are imposed by law upon parents
and guardians. (316a)
Art. 221.
Parents and other persons exercising parental authority
shall be CIVILLY LIABLE for the injuries and damages
caused by the acts or omissions of their unemancipated children
living in their company and
under their parental authority
subject to the appropriate defenses provided by law.
Art. 222.
-
Art. 223.
The parents or, in their absence or incapacity,
the individual, entity or institution exercising parental authority,
may petition the proper court of the place where the child resides,
for an order providing for disciplinary measures over the child.
The child shall be entitled to the assistance of counsel, either of
his choice or appointed by the court, and
a summary hearing shall be conducted wherein the petitioner and
the child shall be heard.
-
Art. 225. The father and the mother shall jointly exercise
LEGAL GUARDIANSHIP over the property of the unemancipated
common child without the necessity of a court appointment.
-
The right of the parents over the fruits and income of the child's
property shall be limited
primarily to the child's support and
secondarily to the collective daily needs of the family
No. While petitioner may have a history of drug dependence, the records are
inadequate as to his moral, financial and social well-being. The psychiatric
evaluation 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 he is unfit to
provide the children with adequate support, education, as well as moral and
intellectual training and development. While the children were asked as to
whether they like to be with their father but there was no showing that the
court ascertained the categorical choice of the children.
In controversies involving the care, custody, and control of their minor
children, the contending parties stand on equal footing before the court who
shall make a selection according to the best interest of the child. The child if
over 7 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 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 the social and moral situations of
the opposing parents.
JOYCELYN GUALBERTO vs. CRISANTO RAFAELITO GUALBERTO (Lesbi)
Is a mother allegedly a lesbian unfit to have custody over a child below seven
years of age?
SC: 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 interest of the child shall be a primary consideration.
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. 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 be
considered to ascertain which one has the capability to attend to the physical,
educational, social and moral welfare of the children.
As a general rule a mother is to be preferred in awarding custody of children
under the age of 7. The caveat in Article 213 of the Family Code cannot be
ignored, except when the court finds cause to order otherwise. The so-called
tender-age presumption under Article 213 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.
Here, Crisanto cites immorality due to alleged lesbian relationship 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.
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. 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 parental care.
SALIENTES vs. ABANILLA (Petition for Writ of Habeas Corpus)
Loran and Marie Antonette are the parents of Lorenzo Emmanuel. They lived
with Maries parents. Due to in-law problems, Loran suggested that they
transfer to their own house but Marie refused so he, alone, left the house and
was, later on, prevented from seeing his son. He then instituted a petition for
habeas corpus and custody. Ordered to show cause why Lorenzo Emmanuel
should not be discharged from restraint Marie moved for the reconsideration
of the order which the court denied. She went to the CA which the affirmed the
denial of the lower court.
On certiorari, she contended that there was no evidence at all that the 3-year
Lorenzo was under restraint and no evidence of maternal unfitness to deprive
the mother Marie of her son of tender years. That the writ is unwarranted
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 her own son.
She maintains that Loran had the burden of showing a compelling reason but
failed to present even a prima facie proof thereof. Accordingly, the proper
remedy is an action for custody and not habeas corpus as the latter is
unavailable against the mother who, under the law, has the right of custody of
the minor. Loran, on the other hand, argued that under the law, he and Marie
have shared custody and parental authority over their son. That at times that
Marie 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.
SC: Habeas corpus may be resorted to in cases where rightful custody is
withheld from a person entitled thereto. Under Article 211 of the FC, Loran
and Marie Antonette have joint parental authority over their minor 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 entitled
to the custody of their child. In this case, Lorans cause of action is the
deprivation of his right to see his son, hence, the remedy of habeas corpus is
available to him.
In a petition for habeas corpus, the childs welfare is the supreme
consideration. The Child and Youth Welfare Code unequivocally provides that
in all questions regarding the care and custody of the child, his welfare shall
be the paramount consideration.
Article 213 of the FC 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 counterargument for Lorans 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 7 years of
age.
GAMBOA-HIRSCH vs. CA 527 SCRA 380 (Makati v. Bora)
Spouses Franklin and Agnes have a 4-year old daughter named Simone. Their
problem started when Agnes wanted to stay in Makati while Franklin would
like to stay in their conjugal home in Diniwid, Boracay Island, Malay, Aklan.
One day, Agnes went to Boracay, asked for money and for Franklins
permission for her to bring their daughter to Makati City for a brief vacation.
He later however, discovered that neither Agnes nor their daughter would be
coming back to Boracay. He then filed a petition for habeas corpus for Agnes
to produce Simone. The CA granted joint custody of the minor child to both
parents.
SC: The CA committed grave abuse of jurisdiction when it granted joint
custody of the minor child to both parents.The Convention of 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 interest of the child shall be a
primary consideration.
The so-called tender age presumption under Article 213 of the FC 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 diseases. 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.
HERALD DACASIN vs. SHARON
Sharon, Filipino, married to an American, Herald, obtained a decree of
divorce from an Illinois court. The court awarded to Sharon sole custody of
their daughter Stephanie and retained jurisdiction over the case for
enforcement purposes. Subsequently, the parties executed in Manila an
agreement for the joint custody of their daughter and chose the Philippine
courts as the exclusive forum to adjudicate disputes arising from the
agreement. Sharon, in fact undertook to obtain from the Illinois court an order
relinquishing jurisdiction to Philippine courts. In 2004, Herald sued Sharon
for alleged violation of the agreement as the latter exercised sole custody over
Stephanie.
SC: At the time the parties executed the agreement on January 28, 2003, 2
facts are undisputed:
Stephanie was under 7 years old (having been born on September
21, 1995); and
Sharon and Herald were no longer married under the laws of the
US because of the divorce decree.
The relevant Philippine law on child custody for spouses separated
in fact or in law is also undisputed: no child under 7 years of age
shall be separated from the mother x x x. (Article 213 (2) FC). This
award of sole parental custody to the mother is mandatory,
grounded on sound policy consideration, subject only to a narrow
exception not alleged to obtain here.
The agreements object to establish a post-divorce joint custody regime
between them over their minor child under 7 years old contravenes Philippine
law.
The agreement would be valid if the spouses have not divorced or separated
because the law provides for joint parental authority when spouses live
together. However, upon separation of the spouses, the mother takes sole
custody under the law if the child is below 7 years old and any agreement to
the contrary is void. The separated parents cannot contract away the provision
in the Family Code on the maternal custody of children below 7 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 7 as these are reasons deemed
compelling to preclude the application of the exclusive maternal custody
regime under the 2nd paragraph of Article 213.
The rules seeming harshness or undesirability is tempered by ancillary
agreements the separated parents may wish to enter such as granting the
visitation and other privileges. These arrangements are not inconsistent with
regime of sole maternal custody under the 2nd paragraph of A. 213 which
merely grants to the mother final authority on the care and custody of the
minor under 7 years of age, in case of disagreements.
Default custodial regime or mandatory maternal custody regime
2nd paragraph of A. 213 of the FC vesting on the mother sole
custody of a child under 7 years of age.
Default standard on child custody proceedings - the best interest
of the child.
CHILD- refers to a person below 18 years of age, or one who is over 18 but
unable to fully care of or protect oneself from abuse, neglect, cruelty,
exploitation or discrimination because of physical or mental disability or
condition.
Child with Special Needs refers to a child with developmental or physical
disability.
Foster Care the provision of planned temporary substitute parental care to a
child by a poster parent.
Foster Placement Authority (FPA) the document issued by the DSWD
authorizing the placement of a particular child with the foster parent. The
Foster Family Care License is renewable every 3 years unless earlier revoked
by the DSWD.
Matching the judicious pairing of a child with foster parent and family
members based on the
capacity and commitment of the foster parent to meet the
individual needs of the particular child and the
capacity of the child to benefit from the placement.
WHO MAY BE PLACED UNDER FOSTER CARE:
1) abandoned, surrendered, neglected, dependent or orphaned;
2) a victim of sexual, physical, or any form of abuse or exploitation;
3) with special needs;
4) whose family members are temporarily or permanently unable or
unwilling to provide the child with adequate care;
5) awaiting adoptive placement and who have to be prepared for
family life.
6) needs long-term care and close family ties but who cannot be
placed for domestic adoption;
7) whose adoption has been disputed;
8) under socially difficult circumstances such as, but not limited to, a
street child, a child in armed conflict or a victim of child labor or
trafficking;
9) committed a minor offense but is released on recognizance, or one
who is already in custody supervision or whose case is dismissed;
and
10) in need of special protection as assessed by a social worker, an
agency or DSWD.
Provided, That in case of (2), (3), (6), (9), and (10), the child must have no
family willing and capable of caring and providing for him.
WHO MAY BE A FOSTER PARENT:
1) Must be of legal age, 16 years older than the child
unless foster parent is a relative,
of good moral character,
physically and mentally capable and
emotionally mature;
2) -Must have a
genuine interest, capacity and commitment in
parenting and
is able to provide a familial atmosphere for
the child;
3) -Must have a
healthy and harmonious relationship with
each family member living with him or her,
have sufficient resources to be able to
provide for the familys needs;
4) Must be willing to
further hone or be trained on knowledge,
attitudes and skills in caring for a child and
must not have the maximum # of children
under his foster care at the time of
application or award.
5) the relatives of the child shall be deemed as best suited to become
a foster parent who is given priority if all the above qualifications
are met.
6) -an alien
who possessed the above qualifications and
who has resided in the Philippines for at least
12 continuous months and
7)
3)
One of the pupils, Chiara Mae Federico, form was unsigned but
Taguiam presumed that she was allowed to join the activity since
her mother personally brought her to the school with her packed
lunch and swimsuit.
Art. 232.
If the person exercising parental authority
has subjected the child or
allowed him to be subjected
to SEXUAL ABUSE, such person shall be
permanently deprived by the court of such authority. (n)
Art. 233.
The person exercising SUB PA
shall have the same authority over the person of the child as the
parents.
In no case shall the school administrator, teacher of individual
engaged in child care exercising special parental authority inflict
corporal punishment upon the child. (n)
RA 7610 CHILD ABUSE, EXPLOITATION AND DISCRIMINATION
CHILD ABUSE refers to maltreatment of a person below 18 years of age or
over but are unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition. It includes:
SURNAMES
New Civil Code
364. Legitimate and Legitimated Children shall use the surname of the father.
Their Mothers surname may be used as their Middle Name.
365. An adopted child shall bear the surname of the adopter
Deemed legitimate children for all intents and purposes
Both a right and an obligation
366. Repealed by 176
a. 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.
However, illegtimate children may use the surname of
their father if their filiation has been expressly
recognized by the father through
i. The record of birth appearing in the LCR
ii. Or when an admission in a public document
or private handwritten instrument is made by
the father.
iii. Provided, that the father has the right to
institute an action before the regular courts to
prove non-filiation during lifetime. The
legitime of each illegitimate child shall consist
of one-half of the legitime of a legitimate
child.
369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
370. A married woman may use:
i. Her maiden first name and surname and add her husbands
surname
ii. Her maiden first name and her husbands surname
iii. Her husbands full name, but prefixing a word indicating that she is
his wife, such as Mrs.
371. In case of annulment of marriage, and 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 husbands surname, unless.
i. The court decrees otherwise,
ii. She or the former husband is married again to another person
372. When the legal separation has been granted, the wife shall continue
using her name and surname employed before the legal separation.
***NOTE: guilt of the wife in LS is immaterial unlike in cases of annulment
373. A widow may use the deceased husbands surname as though he were
still living, in accordance with Article 370.
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.
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:
a. Add a middle name or the mothers surname
b. Add the roman numerals II.III. and so on
376. No person can change his name or surname without Judicial Authority
(RA 9048, March 22, 2001)
5)
Facts: Catindig decided to adopt his illegitimate child Stephanie Nathy Astorga
Garcia with Gemma Astorga Garcia. The petition for adoption was granted and
ordered that Stephanies surname be changed from Garcia to Catindig but
nothing was mentioned with respect to Stephanies middle name. In his
motion for clarification/reconsideration petitioner Catindig prayed that
Stephanie should be allowed to use the surname of her natural mother
(GARCIA) as her middle name. He contends that
there is no law prohibiting an adopted child from having a middle name
in case there is only one adopting parent;
it is customary for a every Filipino to have as middle name the surname
of the mother;
the middle name or initial is part of the name of a person;
adoption is for the benefit of the and best interest of the adopted child,
hence, her right to bear a proper name should not be violated;
permitting Stephanie to use the middle name Garcia (her mothers
surname) avoids the stigma of her illegitimacy; and;
her continued use of Garcia as her middle name is not opposed by
either the Catindig or Garcia families.
SC: As correctly submitted by the parties, there is no law regulating the use of
a middle name. Even Article 176 of the family Code, as amended by RA 9255,
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) of the Civil Code, in
case there is identity of names and surnames between ascendants and
descendants, in which case, the middle name or the mothers name shall be
added.
Notably, the law is likewise silent as to what middle name an adoptee may
use.
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. 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 mother and father.
Stephanies continued use of her mothers surname as her middle name
will maintain her maternal lineage.
It is to be noted that
Out of illicit sexual relationship, two sons were born. The children
were not recognized by Antonio as his own in CLB.
Can a father compel the use of his surname by his illegitimate children upon
his recognition of their filiation?
The general rule is that an illegitimate child shall use the surname of his or
her mother. The exception provided by RA 9255 is, in case his or her filiation
is expressly recognized by the father through the record of birth appearing in
the civil register or when an admission in a public document or private
handwritten instrument is made by the father.
An acknowledged illegitimate child is under no compulsion to use the
surname of his illegitimate father. There was no legal basis for the CFI to order
the change of the surname of respondent. The order or ruling contravenes the
explicit and unequivocal provision of Art 176 of the FC amended by RA 9255.
Art 176 gives illegitimate children the right to decide if they want to use the
surname of their father or not. It is not the father(herein respondent) or the
mother (petitioner) who is granted by law the right tot dictate the surname of
their illegitimate children. Nothing is more settled than that when the law is
clear and free from ambiguity.
(1.)
However, a change of name does not alter ones legal capacity or civil status.
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.
o
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.
RA 9255 AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE
SURNAME OF THEIR FATHER
-Approved on February 24, 2004.
There must be an express recognition by the father either
a. record of birth appearing in the civil register; or
b. admission in a public or private handwritten instrument (Article 172 in
relation to Article 175 of the Family Code.)
Applies to
1. unregistered births; or
2. registered births where the illegitimate children use the surname
of the mother.
-Who may file:
1. father; 2. mother; 3. child, if of age; or 3. guardian where an
Affidavit to Use the Surname of the Father (AUSF) is executed.
-What to file
1. CLB with accomplished Affidavit of Acknowledgment/Admission
of Paternity at the back;
2. Public Document-affidavits of Recognition executed by the father
such as the Affidavit of Admission of Paternity or the Affidavit of
Acknowledgment; and
3. AUSF including all supporting documents.
-When to register
the public document not made on the record of birth, or
the AUSF shall be registered within 20 days from the date of the
execution at the place where the birth was registered.
Article 412 Civil Register (87,06) cf. RA No. 9048 An Act Authorizing the
City or Municipal Civil Registrar or the Consul General to Correct a Clerical or
Typographical Error in an Entry and/or Change of First Name or Nickname in
the Civil Register without need of a Judicial Order. Amending Articles 376 and
412 of the NCC.
SILVERIO vs. REPUBLIC 537 SCRA 373 (October 19, 2007)
No law allows the change of entry in the birth certificate as to sex on the
ground of sex reassignment.
o
o
o
o
because Cagandahan has made up her mind, adjusted to her chosen role as
male, and the gender change would be advantageous to her.
Does her medical condition i.e. congenital adrenal hyperplasia (CAH) make
Jennifer a male?
SC: Article 412 together with Article 376 of the Civil Code had been 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.
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.
Cagandahan 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. CAH is one of many conditions that involve intersex
anatomy.
In deciding this case, we consider the compassionate calls for
recognition
of the various degrees of intersex as variations which should not be
the
subject of outright denial.
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.
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 her/his sex. Respondent here thinks of himself as a male
and considering that his body produces high levels of 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. The Court affirms as valid and justified the respondents
position and his personal judgment of being a male.
As for respondents change of name under Rule 103, this Court has held that
a change 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.
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 of his birth
certificate from female to male.
CORPUZ V. STO. TOMAS
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
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.
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,
o
that the verified petition must be filed with the RTC of
the province where the corresponding civil registry is
located;38
o
that the civil registrar and all persons who have or claim
any interest must be made parties to the proceedings;39
and
o
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
proceeding41 by which the applicability of the foreign judgment
can be measured and tested in terms of jurisdictional infirmities,
IWASAWA V. GANGAN
There is no question that the documentary evidences submitted by
petitioner are all public documents.
provided in the Civil Code: Art. 410.
o
The books making up the civil register and all
documents relating thereto shall be considerered 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 genuinenesss. 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 necessary
anymore. 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.
o
In the instant case, the facts therein remain unrebutted
since neither the Private respondents not the public
prosecutor presented evidence to the contrary.
REPUBLIC.V OLAYBAR
Respondents name was used by an unknown person to contract
marriage with a Korean National. Republic moved for
reconsideration when respondents prayer for correction or
cancellation of entries was granted on the ff grounds
o
Rule 108 of the Revised Rules of Court applies only
when there are errors in the entries sought to be
cancelled or corrected
o
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
Petitioner claims
o
that there are no errors in the entries sought to be
cancelled or corrected, because the entries made in the
Cert. of Marriage are the ones provided for by the person
who appeared and represented herself as respondent.
o
That petition instituted is actually a petition for
declaration of nullity of marriage in the guise of a Rule
108 proceeding.
Birth
Marriage
Death
Legal separation
Judgment of annulments of
marriage
Legitimations
Adoptions
Acknowledgments
of
natural
children
Naturalization
Civil interdiction
Changes of name
Sec. 3 Parties
continuously using her maiden once she is married because when a woman
marries, she does not change her name but only her civil status. This
interpretation is consonance with the principle that surnames indicate
descent.
The conflict between
A. 370 of the NCC and
Section 5(d) of RA 8239 (Philippine Passport Act of 1996), is more
imagined than real.
RA 8239 including its implementing rules and regulations,
o
does not prohibit a married woman from using her
maiden name in her passport.
o
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
(2) divorce,
(3) annulment, or
382. The appointment referred to in the preceding article having been made,
the judge shall
take the necessary measures to safeguard the rights and interests
of the absentee and shall
specify the powers, obligations and remuneration of his
representative,
regulating them, according to the circumstances, by the rules
concerning guardians.
383. In the appointment of a representative, the spouse present shall be
preferred when there is no legal separation.
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
390, CC
Atleast 7 years
Character of absence
in the mind of the
spouse present
Purpose
Presumption
of
Personality
Absentee
of
Opening
succession
Absentee
the
of
Presumption is good
for
all
purposes
except for succession
Need not be a spouse
of the one invoking
the
presumptive
death
Absence for atleast
10years, or 5 years if
absentee is already
75
41
4 years; 2 years if due
to circumstances in
391
There is a wellfounded belief that
the absent spouse
was already dead
Presumption is for the
purpose of remarriage
of the spouse present
Spouse
Declaration
of
presumptive death is
not a basis for
opening
the
succession of absent
spouse
As to who makes the The law itself
The
court
before
presumption
which the case is filed
*Manuel v. People (476 S 483) SC held that Art. 41 repealed 390
391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:
(3) A person who has been in danger of death under other circumstances and
his existence has not been known for four years. (n)
Art. 392. If the absentee appears, or without appearing his existence is
proved, he shall recover his property in the condition in which it may be found,
and the price of any property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents. (194)
V.EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE
Art. 393. Whoever claims a right pertaining to a person whose existence is not
recognized must prove that he was living at the time his existence was
necessary in order to acquire said right. (195)
Art. 394. Without prejudice to the provision of the preceding article, upon the
opening of a succession to which an absentee is called, his share shall accrue
to his co-heirs, unless he has heirs, assigns, or a representative. They shall all,
as the case may be, make an inventory of the property. (196a)
Art. 395. The provisions of the preceding article are understood to be without
prejudice to the action of petition for inheritance or other rights which are
vested in the absentee, his representatives or successors in interest. These
rights shall not be extinguished save by lapse of time fixed for prescription. In
the record that is made in the Registry of the real estate which accrues to the
coheirs, the circumstance of its being subject to the provisions of this article
shall be stated. (197)
Art. 396. Those who may have entered upon the inheritance shall appropriate
the fruits received in good faith so long as the absentee does not appear, or
while his representatives or successors in interest do not bring the proper
actions. (198)
CIVIL REGISTER
Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
The following shall be entered in the civil register:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Births;
marriages;
deaths;
legal separations;
annulments of marriage;
judgments declaring marriages void from the beginning;
legitimations;
adoptions;
acknowledgments of natural children;
naturalization;
11.
12.
13.
14.
15.
Law shall prevail over the will of the persons who have the right to
control the burial of deceased exhumation, evidential purpose,
disposition of corpse by deceased, mutilation of corpses and
autopsies.
Any person who disrespects the dead or interferes with the funeral
shall be liable for material and moral damages.