Philippine Supreme Court Jurisprudence > Year 1995 > March 1995 Decisions > G.R. No. 115640 March 15, 1995 : REYNALDO ESPIRITU, ET AL. vs. COURT OF APPEALS, ET AL.:

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children born out of file 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. nadchanroblesvirtuallawlibrary

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. nadchanroblesvirtuallawlibrary

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 had 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 a return to the Philippines and on December 8, 1992 and filed the petition for a writ 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 to gain custody over the children, thus starting the whole proceedings now reaching this Court.

On June 30, 1993, the trial court diminished the petition for habeas corpus. It suspended Zeresita'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. nadchanroblesvirtuallawlibrary

On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ivay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals disregarded the factual findings of the trial court, that the Court of Appeals further engaged in speculations and conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita. nadchanroblesvirtuallawlibrary

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:nadchanroblesvirtualawlibrary

Art. 363. In all questions on the care, custody, education and property of the children, the latter's welfare shall be paramount. No matter shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

and of Article 213 of the Family Code which in turn provides:nadchanroblesvirtualawlibrary

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 over seven years of age, unless the parent chose 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, 1983 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 501 [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. nadchanroblesvirtuallawlibrary

. . . 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 parent, 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). nadchanroblesvirtuallawlibrary

(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, 1985. 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 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 interest 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, pride and other feelings of either parent but the welfare of the child which is the paramount consideration. nadchanroblesvirtuallawlibrary

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

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