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Prof. Joselito Guianan Chan's The Labor Code of the Philippines, Annotated Labor Standards & Social Legislation Volume I of a 3-Volume Series 2019 Edition (3rd Revised Edition)
 

 
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UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
March-1996 Jurisprudence                 

  • G.R. No. 91935 March 4, 1996 - RODOLFO QUIAMBAO v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 106043 March 4, 1996 - CAGAYAN DE ORO CITY LANDLESS RESIDENTS ASSOCIATION INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 109645 March 4, 1996 - ORTIGAS AND COMPANY LIMITED PARTNERSHIP v. TIRSO VELASCO, ET AL.

  • G.R. No. 115365 March 4, 1996 - ESMENIO MADLOS v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 118126 March 4, 1996 - TRANS-ASIA SHIPPING LINES v. COURT OF APPEALS, ET AL.

  • Adm. Matter No. MTJ-94-921 March 5, 1996 - AMPARO A. LACHICA v. ROLANDO A. FLORDELIZA

  • Adm. Matter No. MTJ-94-1009 March 5, 1996 - ALBERTO NALDOZA v. JUAN LAVILLES, JR.

  • G.R. No. 111501 March 5, 1996 - PHIL. FUJI XEROX CORPORATION, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION

  • G.R. No. 113930 March 5, 1996 - PAUL G. ROBERTS, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 115548 March 5, 1996 - STATE INVESTMENT HOUSE INC. v. COURT OF APPEALS

  • Adm. Matter No. P-94-1039 March 6, 1996 - FE ALBANO MADRID v. RAYMUNDO RAMIREZ

  • G.R. Nos. 112858-59 March 6, 1996 - PEOPLE OF THE PHIL. v. RALPHY ALCANTARA, ET AL.

  • G.R. No. 120193 March 6, 1996 - LUIS MALALUAN v. COMMISSION ON ELECTIONS, ET AL.

  • Adm. Case No. CBD-174 March 7, 1996 - GIOVANI M. IGUAL v. ROLANDO S. JAVIER

  • G.R. No. 66555 March 7, 1996 - LEONCIO MEJARES, ET AL. v. JUAN Y. REYES, ET AL.

  • G.R. Nos. 95353-54 March 7, 1996 - PEOPLE OF THE PHIL. v. PAULINO PAT

  • G.R. No. 109390 March 7, 1996 - JGB and ASSOCIATES v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 112445 March 7, 1996 - PEOPLE OF THE PHIL. v. CARLOS V. PATROLLA, JR.

  • G.R. No. 113710 March 7, 1996 - PEOPLE OF THE PHIL. v. FERDINAND V. JUAN, ET AL.

  • G.R. No. 116011 March 7, 1996 - PEOPLE OF THE PHIL. v. RHODESA B. SILAN

  • G.R. No. 117650 March 7, 1996 - SULPICIO LINES v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 120905 March 7, 1996 - RENATO U. REYES v. COMMISSION ON ELECTIONS, ET AL.

  • G.R. No. 95260 March 8, 1996 - PEOPLE OF THE PHIL. v. WILFREDO C. PRADO

  • G.R. No. 110983 March 8, 1996 - REYNALDO GARCIA v. COURT OF APPEALS, ET AL.

  • Adm. Case No. 2024 March 11, 1996 - SALVADOR T. CASTILLO v. PABLO M. TAGUINES

  • G.R. No. 108625 March 11, 1996 - ALLIANCE OF DEMOCRATIC FREE LABOR ORGANIZATION v. BIENVENIDO LAGUESMA, ET AL.

  • G.R. No. 113194 March 11, 1996 - NATIONAL POWER CORPORATION v. COURT OF APPEALS, ET AL.

  • G.R. No. 119381 March 11, 1996 - MARCOPPER MINING CORPORATION v. JOSE BRILLANTES

  • G.R. No. 96882 March 12, 1996 - EUTIQUIANO PAGARA, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 109800 March 12, 1996 - PEOPLE OF THE PHIL. v. WILFREDO N. BAUTISTA

  • G.R. No. 114388 March 12, 1996 - PEOPLE OF THE PHIL. v. DOMINGO TRILLES, ET AL.

  • Adm. Matter No. RTJ-94-4-156 March 13, 1996 - IN RE: FERNANDO P. AGDAMAG

  • Adm. Matter No. RTJ-96-1344 March 13, 1996 - VERONICA GONZALES v. LUCAS P. BERSAMIN

  • G.R. No. 101332 March 13, 1996 - PEOPLE OF THE PHIL. v. CLARO BERNAL

  • G.R. No. 101699 March 13, 1996 - BENJAMIN A. SANTOS v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. Nos. 104088-89 March 13, 1996 - PEOPLE OF THE PHIL. v. VICENTE JAIN, ET AL

  • G.R. No. 108743 March 13, 1996 - PEOPLE OF THE PHIL. v. ARNALDO B. DONES

  • G.R. No. 112193 March 13, 1996 - JOSE E. ARUEGO, JR., ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 112546 March 13, 1996 - NORTH DAVAO MINING CORPORATION, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 119073 March 13, 1996 - PEOPLE OF THE PHIL. v. ALBERTO DIAZ

  • G.R. No. 120223 March 13, 1996 - RAMON Y. ALBA v. DEPUTY OMBUDSMAN, ET AL.

  • G.R. No. 101070 March 14, 1996 - BALAYAN COLLEGES, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 102062 March 14, 1996 - PEOPLE OF THE PHIL. v. CAMILO FERRER, ET AL.

  • G.R. No. 104685 March 14, 1996 - SABENA BELGIAN WORLD AIRLINES v. COURT OF APPEALS, ET AL.

  • G.R. No. 119706 March 14, 1996 - PHILIPPINE AIRLINES, INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 73592 March 15, 1996 - JOSE CUENCO BORROMEO v. INTERMEDIATE APPELLATE COURT, ET AL.

  • G.R. No. 94494 March 15, 1996 - PEOPLE OF THE PHIL. v. DIONISIO C. LAPURA

  • G.R. No. 103695 March 15, 1996 - REPUBLIC OF THE PHIL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 105819 March 15, 1996 - MARILYN L. BERNARDO v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. Nos. 106229-30 March 15, 1996 - LEOVIGILDO ROSALES v. COURT OF APPEALS, ET AL.

  • G.R. No. 108001 March 15, 1996 - SAN MIGUEL CORPORATION, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 111651 March 15, 1996 - OSMALIK S. BUSTAMANTE, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 115106 March 15, 1996 - ROBERTO L. DEL ROSARIO v. COURT OF APPEALS, ET AL.

  • G.R. No. 114988 March 18, 1996 - CATALINO BONTIA, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION

  • G.R. No. 117667 March 18, 1996 - INLAND TRAILWAYS v. COURT OF APPEALS

  • Adm. Matter No. 94-5-42-MTC March 20, 1996 - QUERY OF JUDGE DANILO M. TENERIFE

  • G.R. No. 102360 March 20, 1996 - ROSITA DOMINGO v. COURT OF APPEALS, ET AL.

  • G.R. No. 111656 March 20, 1996 - MANUEL MANAHAN, JR. v. COURT OF APPEALS, ET AL.

  • G.R. No. 116665 March 20, 1996 - MELQUIADES D. AZCUNA, JR. v. COURT OF APPEALS, ET AL.

  • Adm. Matter No. 95-1-07-RTC March 21, 1996 - JDF ANOMALY IN THE RTC OF LIGAO, ALBAY

  • Adm. Matter No. 95-10-06-SCC March 27, 1996 - IN RE: DEMASIRA M. BAUTE

  • Adm. Matter No. P-94-1071 March 28, 1996 - ELIZABETH ASUMBRADO v. FRANCISCO R. MACUNO

  • G.R. No. 104386 March 28, 1996 - PEOPLE OF THE PHIL. v. OSCAR L. LEVISTE, ET AL.

  • G.R. No. 121424 March 28, 1996 - IN RE: MAURO P. MAGTIBAY v. VICENTE VINARAO

  • G.R. No. 90215 March 29, 1996 - ERNESTO ZALDARRIAGA, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 94594 March 29, 1996 - PEOPLE OF THE PHIL. v. ROMEO REDULOSA, ET AL.

  • G.R. Nos. 96178-79 March 29, 1996 - PEOPLE OF THE PHIL. v. EDUARDO ESMAQUILAN

  • G.R. No. 97785 March 29, 1996 - PHILIPPINE COMMERCIAL INTERNATIONAL BANK v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 99259-60 March 29, 1996 - PEOPLE OF THE PHIL. v. EMILIO D. SANTOS

  • G.R. No. 103525 March 29, 1996 - MARCOPPER MINING CORPORATION v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 104296 March 29, 1996 - REPUBLIC OF THE PHIL. v. COURT OF APPEALS

  • G.R. Nos. 106083-84 March 29, 1996 - PEOPLE OF THE PHIL. v. QUINTIN T. GARRAEZ

  • G.R. No. 106600 March 29, 1996 - COSMOS BOTTLING CORPORATION v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 109312 March 29, 1996 - PLACIDO MIRANDA, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 109614-15 March 29, 1996 - PEOPLE OF THE PHIL. v. ADRONICO GREGORIO, ET AL.

  • G.R. No. 112346 March 29, 1996 - EVELYN YONAHA v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 112457-58 March 29, 1996 - PEOPLE OF THE PHIL. v. ROMEO CARTUANO, JR.

  • G.R. No. 112678 March 29, 1996 - EDUARDO M . ESPEJO v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. Nos. 112708-09 March 29, 1996 - REPUBLIC OF THE PHIL. v. SANDIGANBAYAN, ET AL.

  • G.R. No. 112718 March 29, 1996 - PEOPLE OF THE PHIL. v. VLADIMIR L. CANUZO

  • G.R. Nos. 113519-20 March 29, 1996 - PEOPLE OF THE PHIL. v. DANILO F. PANLILIO

  • G.R. Nos. 114263-64 March 29, 1996 - PEOPLE OF THE PHIL. v. JOHN JENN PORRAS, ET AL.

  • G.R. No. 115988 March 29, 1996 - PEOPLE OF THE PHIL. v. LEO V. LIAN

  • G.R. No. 116734 March 29, 1996 - PEOPLE OF THE PHIL. v. LARRY B. LAURENTE, ET AL.

  • G.R. No. 116792 March 29, 1996 - BANK OF THE PHILIPPINE ISLANDS, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 117055 March 29, 1996 - SAN MIGUEL CORPORATION v. NATIONAL LABOR RELATIONS COMMISSION

  • G.R. No. 117618 March 29, 1996 - VIRGINIA MALINAO v. LUISITO REYES, ET AL.

  • G.R. No. 118509 March 29, 1996 - LIMKETKAI SONS MILLING INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 118870 March 29, 1996 - NERISSA Z. PEREZ v. COURT OF APPEALS, ET AL.

  • G.R. No. 119193 March 29, 1996 - NEMENCIO GALVEZ v. COURT OF APPEALS, ET AL.

  • G.R. No. 120715 March 29, 1996 - FERNANDO R. SAZON v. COURT OF APPEALS, ET AL.

  • G.R. No. 121527 March 29, 1996 - MARCELO L. ONGSITCO, ET AL. v. COURT OF APPEALS, ET AL.

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    G.R. No. 118870   March 29, 1996 - NERISSA Z. PEREZ v. COURT OF APPEALS, ET AL.

     
    PHILIPPINE SUPREME COURT DECISIONS

    SECOND DIVISION

    [G.R. No. 118870. March 29, 1996.]

    NERISSA Z. PEREZ, Petitioner, v. THE COURT OF APPEALS (Ninth Division) and RAY C. PEREZ, Respondents.

    Bausa Ampil Suarez Paredes & Bausa for Petitioner.

    Gica, Del Socorro and Espinoza for Private Respondent.


    SYLLABUS


    1. STATUTORY CONSTRUCTION; A GENERAL WORD SHOULD NOT BE GIVEN A RESTRICTED MEANING WHERE NO RESTRICTION IS INDICATED. — Since Article 213 of the Family Code does not qualify the word "separation" to mean "legal separation" decreed by a court, couples who are separated in fact, such as petitioner and private respondent, are covered within its terms.

    2. ID.; ID.; THE USE OF THE WORD "SHALL" IN ARTICLE 213 OF THE FAMILY CODE AND RULE 99 SECTION 6 OF THE REVISED RULES OF COURT CONNOTES A MANDATORY CHARACTER. — The use of the word "shall" in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character. In the case of Lacson v. San Jose-Lacson, (G.R. No. L-23482, August 30, 1968, 24 SCRA 837, 848) the Court declared: "The use of the word shall in Article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court."cralaw virtua1aw library

    3. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; A CHILD UNDER SEVEN YEARS OF AGE SHALL NOT BE SEPARATED FROM HIS MOTHER UNLESS THE COURT FINDS COMPELLING REASONS TO ORDER OTHERWISE; RATIONALE. — The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code Commission: "The general rule is recommended in order to avoid many 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 mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation." The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be separated from the mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603) which reduced the child’s age to five years.

    4. ID.; ID.; ID.; ID.; ONLY THE MOST COMPELLING OF REASONS SHALL JUSTIFY THE COURT’S AWARDING THE CUSTODY OF SUCH A CHILD TO SOMEONE OTHER THAN HIS MOTHER, SUCH AS HER UNFITNESS TO EXERCISE SOLE PARENTAL AUTHORITY. — The general rule that a child under seven years of age shall not be separated from his mother finds its raison d’ etre in the basic need of a child for his mother’s loving care. Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority.

    5. ID.; ID.; ID.; ID.; CHILD CUSTODY CASES; THE FOREMOST CONSIDERATION IS ALWAYS THE WELFARE AND BEST INTEREST OF THE CHILD. — It has long been settled that in custody cases, the foremost consideration is always the welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."


    D E C I S I O N


    ROMERO, J.:


    Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of resolving conflicts, the most celebrated case being that when his authority was invoked to determine the identity of the real mother as between two women claiming the same infant. Since there could only be one mother, the daunting task that confronted the king/judge was to choose the true one.

    In the instant case, we are as between father faced with the challenge of deciding, as between mother and father, who should have rightful custody of a child who bears in his person both their genes.

    While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a decision have arrived at diametrically opposite conclusions.

    It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the other.

    On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boy’s father Ray C. Perez, reversing the trial court’s decision to grant custody to Nerissa Z. Perez, the child’s mother.

    Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner herein, is a registered nurse. They were married in Cebu on December 6, 1986. After six miscarriages, two operations and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New York on July 20, 1992.

    Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest house in Mandaue City, Cebu. She also sought medical attention for her successive miscarriages in New York. She became a resident alien in February 1992.

    Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his wife, however, he had only a tourist visa and was not employed.

    On January 17, 1993, the couple and their baby arrived in Cebu After a few weeks, only Nerissa returned to the U.S. She alleged that they came home only for a five-week vacation and that they all had round-trip tickets. However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby. According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working. She was supposed to come back immediately after winding up her affairs there.

    When Nerissa came home a few days before Ray II’s first birthday, the couple was no longer on good terms. That their love for each other was fading became apparent from their serious quarrels. Petitioner did not want to live near her in-laws and rely solely on her husband’s meager income of P5,000.00. 1 She longed to be with her only child but he was being kept away from her by her husband. Thus, she did not want to leave RJ (Ray Junior) with her husband and in-laws. She wished for her son to grow up with his mother.

    On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He maintained that it would not be difficult to live here since they have their own home and a car. They could live comfortably on his P15,000.00 monthly income 2 as they were not burdened with having to pay any debts.

    Petitioner was forced to move to her parents’ home on Guizo Street in Mandaue. Despite mediation by the priest who solemnized their marriage, the couple failed to reconcile.

    On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus 3 asking respondent Ray C. Perez to surrender the custody of their son, Ray Z. Perez II, to her.

    On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother, Nerissa Perez, citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. The dispositive portion of the Order reads:jgc:chanrobles.com.ph

    "WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn over the custody of their child Ray Cortes Perez II, his passport and roundtrip ticket to herein petitioner with a warning that if he will escape together with the child for the purpose of hiding the minor child instead of complying with this Order, that warrant for his arrest will be issued.

    SO ORDERED." 4

    Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial court’s order and awarded custody of the boy to his father. 5

    Petitioner’s motion for reconsideration having been denied, 6 she filed the instant petition for review where the sole issue is the custody of Ray Perez II, now three years old.

    Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa Perez custody over Ray II even if the child is under seven years old. It held that granting custody to the boy’s father would be for the child’s best interest and welfare. 7

    Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only child. It is sad that petitioner and private respondent have not found it in their hearts to understand each other and live together once again as a family. Separated in fact, they now seek the Court’s assistance in the matter of custody or parental authority over the child.

    The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the mother complement each other in giving nurture and providing that holistic care which takes into account the physical, emotional, psychological, mental, social and spiritual needs of the child. By precept and example, they mold his character during his crucial formative years.

    However, the Court’s intervention is sought in order that a decision may be made as to which parent shall be given custody over the young boy. The Court’s duty is to determine whether Ray Perez II will be better off with petitioner or with private Respondent. We are not called upon to declare which party committed the greater fault in their domestic quarrel.

    When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It provides:jgc:chanrobles.com.ph

    "ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

    No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise." (Emphasis supplied)

    Since the Code does not qualify the word "separation" to mean "legal separation" decreed by a court, couples who are separated in fact, such as petitioner and private respondent, are covered within its terms. 8

    The Revised Rules of Court also contains a similar provision. Rule 99, section 6 (Adoption and Custody of Minors) provides:jgc:chanrobles.com.ph

    "SEC. 6. Proceedings as to child whose parents are separated. Appeal. — When husband and wife are divorced or living separately and apart from each other, and the questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. . . . No child under seven years of age shall be separated from its mother unless the court finds there are compelling reasons therefor." (Emphasis supplied)

    The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the word "shall" in Article 213 of the Family Code and Rule 99, section 6 of the Revised Rules of Court connotes a mandatory character. In the case of Lacson v. San Jose-Lacson, 9 the Court declared:jgc:chanrobles.com.ph

    "The use of the word shall in article 363 10 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court." 11

    The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code Commission:jgc:chanrobles.com.ph

    "The general rule is recommended in order to avoid many 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 mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation." (Report of the Code Commission, p. 12) 12

    The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be separated from the mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603) which reduced the child’s age to five years. 13

    The general rule that a child under seven years of age shall not be separated from his mother finds its raison d’etre in the basic need of a child for his mother’s loving care. 14 Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, 15 unemployment and immorality, 16 habitual drunkenness, 17 drug addiction, maltreatment of the child, insanity and being sick with a communicable disease. 18

    It has long been settled that in custody cases, 19 the foremost consideration is always the welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." 20

    Courts invariably look into all relevant factors presented by the contending parents, such as their material resources, social and moral situations. 21

    In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means.

    Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point against her. The records, however, show that she is employed in a New York hospital 22 and was, at the time the petition was filed, still abroad. 23 She testified that she intends to apply for a job elsewhere, presumably to improve her work environment and augment her income, as well as for convenience. 24 The Court takes judicial notice of the fact that a registered nurse, such as petitioner, is still very much in demand in the United States. Unlike private respondent, a doctor who by his own admission could not find employment there, petitioner immediately got a job in New York. Considering her skill and experience, petitioner should find no difficulty in obtaining work elsewhere, should she desire to do so.

    The decision under review casts doubt on petitioner’s capability to take care of the child, particularly since she works on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is alleged that she cannot properly attend to him. This conclusion is as unwarranted as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Second, many a mother, finding herself in such a position, has invited her own mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after the child until he is able to take care of himself. others go on leave from work until such time as the child can be entrusted to day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids or "yayas" under the eagle eyes of the mother. Third, private respondent’s work schedule was not presented in evidence at the trial. Although he is a general practitioner, the records merely show that he maintains a clinic, works for several companies on retainer basis and teaches part-time. 25 Hence, respondent court’s conclusion that "his work schedule is flexible (and h)e can always find time for his son" 26 is not well-founded. Fourth, the fact that private respondent lives near his parents and sister is not crucial in this case. Fifth, petitioner’s work schedule cited in the respondent court’s decision is not necessarily permanent. Hospitals work in shifts and, given a mother’s instinctive desire to lavish upon her child the utmost care, petitioner may be expected to arrange her schedule in such a way as to allocate time for him. Finally, it does not follow that petitioner values her career more than her family simply because she wants to work in the United States. There are any number of reasons for a person’s seeking a job outside the country, e.g. to augment her income for the family’s benefit and welfare, and for psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned enough from her job to be able to construct a house for the family in Mandaue City. The record describes sketchily the relations between Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did not exert earnest efforts and make sacrifices to save her marriage.

    It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated several times over a period of six years to finally bear one, only for the infant to be snatched from her before he has even reached his first year. The mother’s role in the life of her child, such as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mother’s love has been immortalized times without number, finding as it does, its justification, not in fantasy but in reality.

    WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27, 1994 as well as its Resolution dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Order of the trial court dated August 27, 1993 is hereby REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his mother, herein petitioner Nerissa Z. Perez. This decision is immediately executory.

    SO ORDERED.

    Regalado, Puno and Mendoza, JJ., concur.

    Torres, Jr., J., is on leave.

    Endnotes:



    1. TSN, August 17, 1993, p. 31; August 23, 1993, p. 73.

    2. TSN, August 23, 1993, p. 73; August 24, 1993, pp. 39-44.

    3. "Nerissa Z. Perez v. Ray C. Perez," Special Proceedings No. 403-MAN, Regional Trial Court Branch 28, Mandaue City, Cebu.

    4. Penned by Judge Mercedes Gozo-Dadole, Rollo, pp. 44-53.

    5. CA-G.R. SP No. 32605, Rollo, pp. 32-40.

    6. January 24, 1995, Rollo, pp. 42-43.

    7. Decision dated September 27, 1994, Rollo, p. 31; Resolution dated January 24, 1995, Rollo, p. 42.

    8. A general word should not be given a restricted meaning where no restriction is indicated. R. AGPALO, STATUTORY CONSTRUCTION 133 (2nd ed., 1990) citing Lo Cham v. Ocampo, 77 Phil. 635.

    9. G.R. No. L-23482, August 30, 1968, 24 SCRA 837, 848.

    10. Article 363 of the Civil Code, now repealed by the Family Code, reads: In all questions on the care, custody, education and property of 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.

    11. The Court cited People v. O’Rourke, 13 P. 2d. 989, 992, 124 Cal. App. 752, (30 Words and Phrases, Permanent Ed., p. 90): "In common or ordinary parlance and in its ordinary significance, the term ‘shall’ is a word of command, and one which has always or which must be given a compulsory meaning, and-it is generally imperative or mandatory. It has the invariable significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning or when public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. . . ."cralaw virtua1aw library

    12. A. SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES 297 (1988); Lacson v. San Jose-Lacson, supra., at 847.

    13. Ibid, at 296.

    14. Espiritu v. CA, supra at 366 citing the Report of the Code Commission and A. SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES 297 (1988).

    15. Medina v. Makabali, supra.

    16. Cervantes v. Fajardo, supra.

    17. I A. TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 609 (1990).

    18. A. SEMPIO-DIY, op. cit. at 287; J. VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE 247 (Revised ed., 1993) citing Sy v. Funa, CA G.R. No. 122117.

    19. Santos Sr. v. CA, G.R. No. 113054, March 16, 1995, 242 SCRA 407; Cervantes v. Fajardo, G.R. No. 79955, January 27, 1989; Unson III v. Navarro, G.R. No. L-52242, November 17, 1980, 101 SCRA 182; Medina v. Makabali, G.R. No. L-26953, March 28, 1969, 27 SCRA 502; Pelayo v. Lavin Aedo, 40 Phil. 501; Lozano v. Martinez, 36 Phil 976 citing Sec. 771 of the Code of Civil Procedure then in force.

    20. Article 3, number 1, CONVENTION ON THE RIGHTS OF THE CHILD, Adopted by the General Assembly of the United Nations on November 20, 1989.

    21. Unson III v. Navarro, supra.; Espiritu v. CA, ibid.; David v. CA. G.R. No. 111180, November 16, 1995.

    22. TSN, August 17, 1983, p. 12.

    23. Petition, p. 1, Rollo, p. 8.

    24. Ibid., pp. 34-35.

    25. TSN, August 23, 1983, pp. 72-74.

    26. Decision of the CA, p. 7, Rollo, p. 38.

    G.R. No. 118870   March 29, 1996 - NERISSA Z. PEREZ v. COURT OF APPEALS, ET AL.




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