XI. THE FAMILYA. Members of a FamilyNature and Scope of Family Relations

Art.149, FC: “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.”

Art.150, FC: “Family relations include those:1) Between husband and wife;2) Between parents and children;3) Among other ascendants and descendants; and4) Among brothers and sisters, whether of the full or half-blood.”

Art. 151, FC: “No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.”

Sempio-Diy says: Application of Art 150-151

1. Verified complaints or petition must show that efforts toward a compromise have failed.2. Petition or complaint is required to be verified as an assurance of the truth that efforts toward a compromise have been made, but have failed.3. Reason for the rule is to avoid or diminish litigations among members of the same family.4. However, even if the required allegation is made but it appears at the pre-trial that the same is not true, the case must be dismissed.

MENDOZA v. CA, 19 SCRA 756 (1967)Facts:

Luisa Mendoza (respondent in this case) brought a complaint before the court. Husband claims, no compromise yet, so no prosper.

Held: The complaint involved a claim for future support, that under

Art. 2035 of the Civil Code, cannot be the subject of a valid compromise, and is therefore outside the sphere of Art. 222.

The husband also argues regarding the validity of their marriage. However, this also falls under Art. 2035 as not being the subject of a valid compromise.

MENDEZ V BIONSON & EUGENIA (1977)FactsZoila Mendez and Matilde Bionson with 10 others vs Gumapon and more Bionsons for the partition of 2 parcels of land in Cebu.HeldThe parties are collateral relatives who are not brothers and sisters. Only members of the same family are required to exert efforts to arrive at a settlement before an action is instituted.

Guerrero v RTC, Ilocos Norte (1994)Facts

Gaudencio Guerrero and Pedro Hernando are brothers-in-law, their wives are half-sisters. They both claim ownership of a lot.

Held- Brothers-in-law are NOT members of the same family as enumerated in Art 151. No earnest efforts toward a compromise are needed.

Hontiveros v RTC, Iloilo City (1999)FactsComplaint against Gregorio Hontiveros and his wife, Teodora Ayson by Augusto and Maria Hontiveros. Gregorio-Augusto brothersHeldWhenever a stranger is a party to a case, Art 151 will NOT apply. The inclusion of respondent Ayson and Maria Hontiveros is out of ambit of said article because they do not refer to “members of the same family” which refer to blood-relatives.

Support

Art. 194-208

REPUBLIC ACT NO. 8972AN ACT PROVIDING FOR BENEFITS AND PRIVILEGES TO SOLO PARENTS AND THEIR CHILDREN, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSESSection 1. Title. - This Act shall be known as the "Solo Parents' Welfare Act of 2000."Section 4. Criteria for Support. - Any solo parent whose income in the place of domicile falls below the poverty threshold as set by the National Economic and Development Authority (NEDA) and subject to the assessment of the DSWD worker in the area shall be eligible for assistance: Provided, however, That any solo parent whose income is above the poverty threshold shall enjoy the benefits mentioned in Sections 6, 7 and 8 of this Act.Section 6. Flexible Work Schedule.  Section 7. Work Discrimination. Section 8. Parental Leave. - Section 9. Educational BenefitsSection 10. Housing Benefits. 

LACSON v. LACSONFacts:Edward (petitioner) failed to give support to his daughters. He merely gave meager amounts for school expenses. The mother and the respondents were forced to rely on their uncle, Noel DabanHeld:

1. The Court held that the respondents ARE entitled for support in arrears. Art 203: the respondents are entitled to receive support from the date when a demand for support was made upon him, which was 1995.

2. The Court held that the uncle is entitled for reimbursement from the plaintiff. According to Art 207 of the Family Code, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support.

FUNERALSArt 305-310

THE FAMILY HOMEArt 152, FC – the family home, constituted jointly by husband and wife, or by an unmarried head of the family, is a) the dwelling where the family resides and b) the land on which it is situated

Art 153 – Family home constitutes on a house and lot upon time of occupation as family residence. Family home continues to exist so long as any of its beneficiaries actually reside there. It is exempt from execution, forced sale or attachment except as provided by law.

Art 154 – The beneficiaries of the Family Home:1. Husband and Wife, or an unmarried person who is Head of theFamily2. Their parents, ascendants, descendants, brothers and sisters,whether legitimate or illegitimate, who are a) living in the family home and b) who depend upon the Head for support

Art 155 – Family Home shall be exempt from forced sale, execution and/or attachment EXCEPT:

1. For non-payment of taxes2. Debts incurred prior to the constitution of the Family Home3. Debts secured by mortgages on the premises before or afterconstitution4. Debts to laborers, mechanics, architects, builders, materialmen and other who have aided in construction of the building

Art 156 – Family Home must be part of ACP/CPG or Exclusive Property of one spouse with the other’s consent or may be constituted by an unmarried head upon his own property. Property subject to conditional sale on installments, where ownership is reserved to guarantee payment, may be constituted as the Family Home

Art 157 – Actual value of Family Home must not exceed:300,000 pesos in Urban Areas, 200,000 pesos in Rural Areas, or fixed by law

Art 158 – the Family Home may be alienated, encumbered, sold, donated or assigned by the owners thereof, with written consent of the person constituting the same, the latter’s spouse, and the majority of the beneficiaries of legal age. In case of doubt, the Court decides.

Art 159 – Family Home shall continue to exist even after death of Spouses or of the Unmarried Head, for a period of 10 years or for as long as there is a minor beneficiary. The heirs cannot partition the same unless the court finds compelling reasons therefor. This rule applies regardless of who constituted/owns the Home.

Art 160 – for creditors not enumerated in Art 155, obtaining judgment in their favor and having reasonable ground to believe that the Family Home is worth more than the amount specified in Art 157, the creditor may apply to the court for an order of sale by execution.Court shall so order if it finds that the actual value is more than the maximum allowed by law at the time of constitution.If increase in value, exceeding maximum allowed by law, is caused by improvements done by person or persons constituting the home, by owners of the property, or by any beneficiaries, the same rule shall apply.

Art 161 – For purposes of availing benefits of a Family Home, a person may constitute or be a beneficiary in only one Family Home

Art 162 – This Chapter also governs existing Family Residences insofar its provisions are applicable

MODEQUILLO V. BREVAFACTS:

Jose Modequillo and Benito Malubay (petitioners) are ordered by CA to pay jointly and severally

Sheriff levied on a parcel of residential land and a parcel of agricultural land registered in the name of Jose.

The residential land is where the family home is built since 1969 prior to the commencement of the case and so it is exempt from execution, forced sale or attachment under Art. 152 and 153, FC.

Judgment debt sought to be enfo rced is not one of those enumerated under Art. 155, FC.

HELD:

Art. 162, FC only means that all existing family residences at the time of FCs effectivity are considered family homes and are prospectively entitled to the benefits of a family home under the FC.

The debt or liability which was the basis of judgment arose at the time of the vehicular accident (March 16, 1976) and the money judgment rendered by CA (January 29, 1988). Both preceded the FC’s effectivity on Aug. 3, 1988. Thus, the case does not fall under the exemptions under the FC.

PATRICIO V. DARIO IIIFACTS:

Marcelino Dario died intestate. He was survived by his wife (Perla Patricio, petitioner) and his two sons (Marcelino Marc Dario and Marcelino Dario III, private respondent).

The wife and two sons extrajudicially settled the estate of their father. Among the properties was a parcel of land with a residential house and a pre-school building built thereon.

Petitioner and Marc formally advised Dario III of their intention to partition the subject property and terminate co-ownership. Dario III refused.

Trial court: ordered partition: 4/6 to Perla, 1/6 to Marc, 1/6 to Dario III. Dario III filed motion reconsideration but was also denied..

HELD:Moreover, Art. 159, FC provides that 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 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefore. However, the a) minor contemplated in this article must not only b) reside in the home but must also be c) dependent on the head of the family for legal support (as stated in Art. 154, FC).

VENERACION V. MANCILLAFACTS:

To secure the payment, Elizabeth executed a real estate mortgage over her residential lot with a residential house situated thereon.

HELD:But it must be proved first that it was indeed a conjugal home

and that their father spent for the acquisition of such. In this case, it was not proven.

ARRIOLA v ARRIOLA (2008)SUMMARY: Subject house was built by the decedent on his exclusive property. Said house has been the residence of petitioners [2nd family] for 20 years. House is therefore the family home. This being so, it is shielded from partition under Article 159 of FC [family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years and the heirs cannot partition the same unless the court finds compelling reasons therefor.] The family home cannot be partitioned this time, even if it has passed to the co- ownership of the heirs, parties herein.

JOSEF V SANTOSSUMMARY: Petitioner failed to pay respondent for shoe materials he

brought on credit. Petitioner contends that one of the properties is the family home and thus exempted from execution. Court held that Petition is meritorious;

HELD: NO. The lower courts should have conducted a solemn inquiry into the nature of the real property after the petitioner has alleged that the property is their family home. Trial court should have observed the following procedure:

Determine if the obligation falls under the exceptions under Art. 155, FC

Determine the veracity of petitioner’s claim that it is a family home

If it is already found to be the family home, the Court should determine

o If the obligation was contracted before/after the effectivity of FC

o If petitioner’s spouse is still alive, as well as beneficiarieso If the petitioner has more than one residence

o Its actual location and value (Art. 157 and 160)

SPOUSES DE MESA V. SPOUSES ACEROFacts:

Spouses De Mesa filed a new complaint to nullify the title held by Spouses Acero, stating that their family home stood on the subject property and it was exempt from being subject to execution under Art. 153..

Ratio:The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the sale of the property at public auction. It is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved to the Sheriff. x x x.

XV. PATERNITY AND FILIATION

LEGITIIMATE CHILDREN

Art. 163 The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

Tolentino says:

Paternity and filiation- defined as the relation between parents and children. It may be natural when derived from generation or arising from legal fiction, such as in adoption

Natural filiation may be legitimate or illegitimate

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided the both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (255a, 258a)

PERIDO V. PERIDO

Lucio married Benita and had Felix Ismael and Margarita as children. Benita died so Lucio soon remarried.

The first marriage kids somehow had doubt about legitimacy of the second marriage children because they were born out of wedlock (born before death of first wife) and the land cert did not indicate that Lucio is married to Marcelina.

Held:

There was not enough proof to show that Lucio and Marcelina were really not married. They should be clothed with the presumption of marriage. When eldest child of Marcelina was born, the wife had already died long before.

LIYAO JR. V. LIYAO ET AL.

Corazon married Ramon Yulo and have two children Bernadette and Enrique. They are living separately from each other however, for almost 10 years.

Corazon cohabited with William Liyao Sr. (married man with 2 daughters) and they had a son William Liyao Jr.

The case involves Liyao Jr. claiming that he is the illegitimate child of Liyao Sr. and is asking for recognition as compulsory heir.

HELD:

Law favors legitimacy rather than illegitimacy of child Impugning the legitimacy of the child is a strictly personal

right of the husband, or in exceptional cases, his heirs. Hence, it was then settled that the legitimacy of the child can only be impugned in a direct action brought for that purpose, by the proper parties and within the period limited by law.

SSS VS AGUAS (FEB 27, 2006; CALLEJO, SR., J.)

FACTS:

Dec 8, 1996: Pablo Aguas, a member of the SSS and a pensioner, died. Rosanna, his surviving spouse, claimed his death benefits. She also claimed that he was survived by Jeylnn (born Oct 29, 1991)

HELD:

Impugning the legitimacy of a child is strictly a personal right of the husband or his heirs (in exceptional cases) [Art 170]

1) Her status as a legitimate child can no longer be contested

2) Presumption of legitimacy can’t extend to Janet since her date of birth wasn’t proven (not verified by register)

Biological-Assisted Reproductive Technology

Can have up to 5 sets of parents

Father

1. Biological

2. Legal/Social

Mother

1. Legal/Social

2. Genetic (egg donor)

3. Gestational (not surrogate)

IN RE BABY M, 537 A.2D 1227, 109 N.J. 396 (N.J. 02/03/1988)

Parties (William Stern [of the Stern Couples] + Mary Whitehead [“surrogate” mother]) agree to go into surrogacy contract

o Mary was impregnated via artificial insemination of William’s sperm

But then after giving birth, the surrogate mother acquired a bond with the child and was unable to let her go.

HELD:

1. Contract was in direct conflict with existing statute and public policy.

- involvement of money

- no proof of parental unfitness before parental rights terminated

2. Termination of maternal and visitation rights is contrary to law

JOHNSON VS CALVERT (1993)

Mark and Crispina Calvert are a married couple who desired to have a child.

On January 15, 1990, Mark, Crispina, and Anna signed a surrogate contract

an embryo created by the sperm of Mark and the egg of Crispina would be implanted in Anna

Relations deteriorated between the two sides.

HELD:

- Case will be decided on the parties’ intention or from whom the mental concept of the child emanated. The prime movers.

- Gestational surrogacy is different from adoption, not contrary to public policy

IN RE ADOPTION OF ANONYMOUS (1973)

SUMMARY: A child was born by artificial insemination during a marriage. Wife and husband separated and the wife’s new husband attempted to adopt the child, claiming that the previous husband’s consent was unnecessary because he was not the parent of the child.

DOCTRINE

A child born of consensual AID during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child of the same marriage.

The husband in such a relationship is therefore the parent, and his consent is required to the adoption of such child be another.

Impugned Legitimacy

Art. 166, FC: “Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.(255a)

Art. 167, FC: “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)”

Art. 168, FC: “If the marriage is terminated and the mother contracted another marriage within 300 days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

1) A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage;

2) A child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

Sempio-Diy says:

• Par. 1 requisites:

1) Mother must have married again within 300 days from the termination of the first marriage;

2) Child was born within same 300 days after termination

3) Child was born before 180 days after the solemnization of 2nd marriage

• Par. 2 requisites:

1) Mother must have married again within 300 days from the termination of the first marriage;

2) Child was born within same 300 days after termination

3) Child was born after 180 days following the solemnization of 2nd marriage

Art. 169, FC: “The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a)”

Tolentino says:

• In Absence of Proof: If nobody asserts legitimacy/illegitimacy of a child born after 300 days following the termination of the marriage, the child should be considered the illegitimate child of the mother, unless she or the child can prove legitimacy.

Action to impugn legitimacy

Art. 170, FC: “The action to impugn the legitimacy of the child shall be brought within NO CONCEALMENT1 year from knowledge of birth or recording in civil register, is husband or heirs reside in same city/municipality

2 years if not same city/municipality

3 years if abroad

WITH CONCEALMENT

Same as above, but reckoning is from time of discovery of the birth of child or fact of registration, whichever is earlier

Sempio-Diy says:

• The legitimacy of a child cannot be attacked collaterally or by way of defense.

• Legitimacy can be questioned only in a direct action or proceeding under this Article.

Who may impugn

Art. 171, FC: “The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

1) If the husband should die before the expiration of the period fixed for bringing his action;

2) If he should die after the filing of the complaint without havingdesisted therefrom; or

3) If the child was born after the death of the husband. (262a)”

ANDAL V. MACARAIG (1951)

Legitimacy of child is assailed by his paternal grandmother, as his son was with TB and mother had illicit rel with his other son

Held/Ratio:

Since Mariano was born on June 17, 1943, he is presumed to be the legitimate son of Emiliano and Maria having been born within 300 days upon the dissolution of the marriage on Jan. 1, 1943, when Emiliano died.

This presumption was embodied in Art. 108 of the CC, which also states that the presumption could be rebutted only by proof of physical impossibility to have sex for the husband during the first 120 days of the 300 days preceding the birth of the child.

There was also no evidence that he was either impotent or imprisoned.

CHUA KENG GIAP VS. INTERMEDIATE APPELLATE COURT

Petitioner insists that he is the son of the deceased Sy Kao and Chua Bing Guan. However, the filiation has long been settled and in that case, Sy Kao flatly and unequivocally declared that she was not Chua Keng Giap’s mother.

Who better than Sy Kao herself would know if Chua Keng Giap was really her son? NONE

CABATBAT-LIM VS. INTERMEDIATE APPELLATE COURT

Petitioner alleges that she is the daughter of Esperanza Frianzena-Cabatbat. The respondents, daughters of Esperanza allege otherwise. TC ruled against petitioner. Appeal that they cannot contest (Art 170-171 today)

HELD

The trial court ruled in favor of the respondents thus making such ruling conclusive upon the Supreme Court. Moreover, petitioner’s recourse to Article 263 is not well taken because there is no action to impugn the legitimacy of a child. Rather what is being proven is that she is not the decedent’s child at all.

TAN V. TROCIO

- Tan seeks the disbarment of Atty. Trocio for immorality and conduct unbecoming of a lawyer, raped by Trocio

- Alleges that she begot her child, Jewel, because of said incidento She already had 8 kids before Jewel with her foreigner

husbandHeld:

No, evidence presented does not establish paternityo Unusual closeness as alleged by the complainant (giving

of toys, playing) is not conclusive to establish paternityo Pictures of Jewel and the respondent showing physical

similarities likewise not conclusive evidenceo Jewel was born during wedlock of complainant with

her foreigner husband therefore presumption of legitimacy has already attached.

Can only overcome by adequate evidence to the contrary

PEOPLE V. TUMIMPAD

- Tumimpad and Prieto were charged with the rape of a 15-year old child (Sandra) with Down syndrome (case says mongoloid)

Issue: WON physically impossible for Tumimpad to have raped her?

Held:

Blood test was only adduced as evidence to show that the accused may have been father of the child – that it was not impossible

BENITEZ-BADUA V. CA

FACTS:

Vicente’s sister and nephew prayed for the administration of Vicente’s estate in favor of the nephew. They alleged that one Marissa Benitez-Badua who was raised and cared by them since childhood is not related to them by blood, nor legally adopted, and so is not a legal heir.

HELD:

Petitioner’s insistence of the applicability of Art. 164, 166, 170 and 171, FC cannot be sustained.

Such articles do not contemplate a situation, as in this case, where a child is alleged not to be a biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife.

DE APARICIO V PARAGUYA (1987)

TRIAL COURT: Trinidad is still single at the time she was conceived. It is a legal presumption that plaintiff is the daughter of the spouses Anastacio and Trinidad. However, this was disputable and Trinidad successfully overcame it.

Trinidad admitted that she never lived with Anastacio. Fr. Lumain acknowledged her as a natural child in the will.

HELD: YES. Child’s filiation is irrelevant.

In the remote possibility that plaintiff is not a natural child of Fr. Lumain, the Court still maintain that under the will, she is entitled to the property because she is the universal heir.

There are no other compulsory heirs so he may dispose by will all of his estate or any part of it in favor of any person having the capacity to succeed.

Proof of Filiation

FC, Art 172 The filiation of legitimate children is established by any of the following:

(PRIMARY EVIDENCE FOR VOLUNTARY RECOGNITION)

- The record of birth appearing in the civil register or a final judgment - An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned In the absence of which:

(SECONDARY EVIDENCE FOR INVOLUNTARY RECOG)

1. The open and continuous possession of the status of a legitimate child 2. Any other means allowed by the Rules of Court and special laws

CC, Art 220 (Presumption of legitimacy)

MENDOZA ET AL V. MELLA

There was this lot in Sorsogon owned by a Paciano Pareja. He donated it to his son Gavino in 1939. Gavino disappeared in 1943 and was presumed to be dead. He was living in with petitioners during that time.

Paciano sold his land to Mella and told petitioners in 1952 to vacate the land.

Ratio

The birth certificate of Rodolfo was scrutinized. Though it contains the name of both parents, there is no clear manifestation made by them that they signed the original of swore to its contents. There must be clear statement of recognition for the document to have an effect on the child’s legitimacy.

HEIRS OF RAYMUNDO C. BANAS VS.HEIRS OF BIBIANO BANAS

Plaintiffs allege that Raymundo was the acknowledged natural son of the late Bibiano Banas; thus, they are entitled to the latter’s estate

HELD

1. NO. There wasn’t any voluntary recognition Voluntary recognition must be made expressly by the

recognizing parent, either in the record of birth, in a will, in a statement before a court of record, or in any authentic writing

“su padre, B. Banas” isn’t sufficient to constitute and intent to recognize (only a mere indication of paternal solicitude, not an indubitable acknowledgment of paternity)

1. Incidental acknowledgment would only be given merit if the alleged recognition is made in a PUBLIC DOCUMENT, not in private writing like the letter presented

2. Filiation claim must be made by the putative father himself, not school records, etc.

Action to Claim Legitimacy

Art. 173, FC: “The action to claim legitimacy may be brought by the child during his or her lifetime and

shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. (268a)”

Rights of Legitimate Children

Art. 174, FC: “Legitimate children shall have the right:

1. To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames;

2. To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and

3. To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a)”

REPUBLIC VS. CA, VICENCIO (1998)

• Respondent Cynthia Vivencio seeks to have her surname changed from Vicencio to Yu, that of her step-father.

Held/Ratio:

• In this case, Cynthia is a legitimate daughter of Pablo and Fe Esperanza. It means that she generally bears the surname of her father.

• A change of name is not a right, it is a privilege that is addressed to the sound discretion of the courts.

Confusion might arise with regard to Cynthia’s parentage because of her surname.

DE ASIS v. CA (1999)

Mother brought action to support and maintenance against alleged father. Agreed to compromise to withdraw claim in exchange for support.

Ratio

- Paternity and filiation must be first established and judicially declared, and cannot be left to agreement of parties

- Future support cannot be subject of compromise (Art 2035)

- Right to receive support cannot be renounced or transmitted to third person (CC Art 301)

ILLEGITIMATE FILIATION

1. Proof of Filiation

FC Art 175 Illegitimate children may establish their illegitimate filiation in the same way and on same evidence as legitimate children (Art 172)

The action must be brought within the same period specified in Art 173, except when action is based on second paragraph of Art 172, in which case the action may be bought during the lifetime of the alleged parent

Proof of filiation (Art 172)

(Primary/voluntary recognition)

1. Birth certificate

2. Admission of filiation in public document OR private handwritten instrument and signed

In absence of foregoing, (Secondary/involuntary recognition)

3. Open and continuous possession of status of legit/illegit child

4. Other means allowed by Rules of Court

NOTE: Secondary not admissible when primary exists

Action to claim legit/illegit (Art 173)

- Brought by child during lifetime- Transmitted to heirs should child die during minority or insanity

o 5 years period to file- Action commenced shall survive even with death of both parties

HOW TO BRING ACTION TO CLAIM FILIATION

1. File a separate action

2. Intervene in the settlement of estate of his/her alleged parent

Rodriguez v. CA (1995)

DOCTRINE: Filiation may be proven by “any evidence or proof that the defendant is his father”, as per RoC

- Article 172 FC has adopted Art. 283 CC, particularly paragraph 4, where filiation may be proven by “any evidence or   proof   that   the defendant   is   his father”.

Mariategui v. CA (1992)

DOCTRINE: Filiation can be proven using a Birth Certificate. Without it, the continuous enjoyment of the status as a child is still sufficient proof of filiation (Art 172 FC)

Aruego Jr. v. CA (1996)

DOCTRINE: Family Code cannot be given retroactive effect insofar as it prejudices the vested right of persons under the Civil Code

- In the CC:

• Prescription will not yet bar the respondent from filing the petition, as they have filed within 1 year after attainment of majority and their father died while they were minors (period of within 4 years after attainment of majority)

- In the FC:

• Prescription is barred, as it requires the filing of the petition during the lifetime of the concerned parent

Jison v. CA (1998)

DOCTRINE: Testimonial evidence was more than sufficient to establish her open and continuous possession of status as an illegitimate child.

However, she cannot rely on her birth and baptismal certificates since it was not shown that the putative father had anything to do with the filing of said certificates.

RATIO:

- “To prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. Such acts must be of

such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and life, not accidentally, but continuously. – duly proven by presented evidence

Guy v. CA (2006)

DOCTRINE: - Illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are given the right to seek recognition for a period of up to four years from attaining majority age.

- Under the Family Code, when filiation of an illegitimate child is established by voluntary admission, the action for recognition may be brought by the child during his or her lifetime.

- However, if the action is based upon involuntary, it may only be brought during the lifetime of the alleged parent.

Estate of Rogelio Ong v. Diaz (2007)

DOCTRINE: In DNA Testing, any physical residue of the long dead parent can be resorted to

Jesse Lucas v. Jesus Lucas (2011)

DOCTRINE: To warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or “good cause” for the holding of the test.

2. Rights of Illegitimate Children

FC Art 176 Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.

However, illegitimate children may use the surname of their father IF their filiation has been expressly recognized by their 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. PROVIDED, the father has right to institute an action before the regular courts to prove non-filiation during his lifetime. (Amended by RA 9255 (2004))

The legitime of each illegitimate child shall consist of ½ of the legitimate child

a. Right to prove filiation

Uyguangco v. CA (1989)

DOCTRINE: If the action to establish illegitimate filiation is based on the second paragraph of Article 172 secondary evidence), the action may only be brought during the lifetime of the alleged parent.

b. Custody

David v. CA (1995)

DOCTRINE: Illegitimate children shall be under the parental authority of their mother

c. Surname

Republic v. Abadilla (1999)

DOCTRINE: Illegitimate children shall use the surname of their mother (FC Art 176)

Republic v. Capote (2007)

DOCTRINE: Under Art. 176:  “Illegitimate children shall use the surname and shall be under the parental authority of their mother…”  

d. Support

People v. Namayan (1995)

DOCTRINE: The crime of rape carries with it, among others, the obligations to acknowledge the offspring if the character of its origin does not prevent it and to support the same.

Dolina v. Vallecera (2010)

DOCTRINE: To be entitled to legal support, petitioner must, in proper action, first establish the filiation of the child, if the same is not admitted or acknowledged A.K.A illegitimate children are entitled to support and successional rights but their filiation must be duly proved.

B. Legitimated Children

FC Art 177 Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated (Amd. By RA 9858)

Requisites for legitimation

1. Child conceived AND born out of wedlock

2. Parents were not DQ by any impediment to marry each other AT TIME OF CONCEPTION

Exception: disqualified only because either or both of them were below eighteen (18) years of age

Cannot be legitimated

1. adulterous 2. Incestuous 3. against public policy

4. bigamous marriages – can be adopted, though

FC Art 178 Legitimation shall take place by subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation

In FC: legitimation takes place through subsequent marriage, as long as Art 177 is met (no need for acknowledgement of child). Length of time between birth and marriage is immaterial

FC Art 179 Legitimated children shall enjoy the same rights as legitimate children

FC Art 180 The effects of legitimation shall retroact to the child’s birth to protect not only the child but also his/her descendants because it can happen that child is already dead by time parents marry and is survived by children who would benefit from legitimation of the deceased parent.

FC Art 181 The legitimation of children who died before the celebration of marriage shall benefit their descendants

FC Art 182 Legitimation may be impugned only by those who are prejudiced in their rights, w/in 5 years from the time their cause of action accrues

RA 9858 (2009) (AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE PHILIPPINES)

Section 1. Article 177 of Executive Order No. 209, otherwise known as the "Family Code of the Philippines", as amended, is hereby further amended to read as follows:

"Art. 177. Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated."

"Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation."

Ramirez v. Gmur (1918)

DOCTRINE: Only children conceived and born out of wedlock to parents who can validly marry each other at the time of the conception can be legitimated.

In re Julian Wang (2005)

WON dropping the middle name of a minor child is contrary to Art. 174 of the FC - YES

ADOPTION

I. Adoption: History and Rationale

A. Ancient Antecedents

*ancient times: adoption was adopter-centric

Roman law: to avoid extinction of family and perpetuate rites of ancestral worship

Two forms:

1. adrogatio/arrogation – someone who is sui juris/of age, originally sons above puberty, later included daughters. Done by assembly or imperial edict

2. adoptio – to be under paternal power of a new family. Done by fictitiously selling 3 times, later by authority of a magistrate.

*adoption must imitate nature

*middle ages – “must imitate nature” led to stigma and perception of inferiority

*modern times: best interests of child as purpose

B. Spanish and American Antecedents

- US adoption laws

- change in domestic relations of adopter and adoptee

- ESP adoption laws

- only changes wrt to person exercising parental authority, keeps natural family

- resembles guardian more than parent, naked patria potestas

- BOTH: welfare of child the paramount consideration

C. Modern Day Laws and Policies

Dec 10, 1974: PD 603 (Child and Youth Welfare Code/CYWC)

-repealed all adoption laws in CC

Dec 17, 1986 -amended by EO 91 re: non-resident aliens

Aug 3, 1988 – EO 209 (Family Code)

June 7, 1995 – RA 8043 (Inter-Country Adoption Act)

Feb 25, 1988 – RA 8552 (Domestic Adoption Act)

*UN Convention on Rights of Child (CRC, 1990): primary consideration

-treaty ratified by RP in 1990

Ruling: higher standard clause – law of State or international laws in force prevail over those in CRC

2009: RA 9523

2012: RA 10165 (Foster Care Act)

II. Types and Nature of Adoption

A. Types of adoption

Adoption

- Socio-legal process of providing a permanent family to a child whose parents have voluntarily or involuntarily relinquished parental authority over the child.

- Juridical act that creased a relationship similar to legitimate paternity and filiation

- Welfare of child paramount, for benefit of childTypes of Adoption

1) Agency adoption – DSWD-licensed agency finds adoptive families for children who are committed

-process: inquiry, application, interviews for case study, matching, trial custody, and finalization

2) Relative Adoption – biological parents relinquish child to relative or member of extended family

-sans matching and trial custody

3) Intermediary adoption – parents place child in intermediary/middle person who knows someone who wants to adopt

- For relative and independent adoptions, adopters file petition to adopt directly within Family Court

-DSWD involved only for case and home reports

- Note: not always favorable that parents choose adopters

People v. Marquez (2011)

Facts

- Aida Marquez charged with Kidnapping

- Marquez alleges Merano offered Justine to her for adoption

Ratio

- When parents surrender care and custody of child to someone else, they are not prevented from reconsidering and demanding child back; they retain the right.

- Custodians are legal strangers without the adoption decree

B. Proceeding in rem

Adoption – requires a judicial proceeding

- Adoption is proven only by judicial decree issued by a court of competent jurisdiction.

- Agreements between birth parents and caregiver nor the de facto custody of child gives rise to adoption

- Mere registration of birth certificate (simulated birth) also has no effect and is punishable by law

- Unlike in biological filiation, open and continuous possession of status is not prove adoption

Adoption is a proceeding in rem

- Establishes the status of the adoptee as legit child of the adopters- Law requires publication in a newspaper of general circulation of

the adoption order to given constructive notice to family and other interested persons to intervene if ever (as binding as actual notice)

o Actual notice to parents is not required if child was abandoned or residence is unknown

- However, actual notice is given to DSWD so they can prepare the case study

Lazatin v. Campos (1979)

Facts

- Petitioner Renato Lazatin filed to intervene in estate proceedings of Dr. Lazatin and de Asis, spouses, claiming he is an admitted illegitimate child

-basis: affidavit of Benjamin, brother of Dr. Lazatin

-no adoption decree, rather showed secondary evidence

Ratio

- Petitioner’s evidence insufficient to prove he was adopted

- Adoption may only be done through court, (Rule 99, RoC)

- Pieces of evidence presented cannot be admissible since there is no adoption decree presented

- Pedigree evidence is admissible but better proof is available and must be produced

- Secondary evidence is only admissible when proof that primary evidence existed but was lost

Republic v. and Caranto (1996)

Facts

- Caranto couple filed for adoption of Midael C. Mazon, 15 y/o, who had been living with Jaime Caranto since he was seven years old. (Along with name change to Michael)

Issues/Ratio

a) WON RTC acquired jurisdiction over petition for adoption – YES

- Minor defect only (using incorrect name of child BUT there is little difference - “ch” and “d”) - SolGen admits it is a mere clerical error

- Same rhyme and tone – would not cause confusion. Purpose of publication, to inform/give notice, is served.

b) WON action for correction of entries in the civil registry may be done in the same action for adoption - NO.

- Since the case falls under Rule 108 (Change of name), Sec. 3 of said rule requires the local civil registrar to be impleaded in the proceeding. He is an indispensable party

- Nothing was mentioned that in addition the correction of his name in the civil registry was also being sought. Thus, decision of the RTC with regard to the correction of the name is null and void for lack of jurisdiction.

- Adoption is a proceeding in rem and creates between two persons a relationship similar to legitimate paternity and filiation. Not natural, wholly artificial so statutory requirements must be strictly carried out, or else adoption is a nullity

III. Evolution of Philippine Laws on Adoption

Old Civil Code (1889)

July 24, 1899 via Royal Decree - earliest law governing adoption in RP. Applicable until Enactment of NCC

Adoption as adopter-centric

-For persons w/o children to experience the joys of paternity and have an object of their instincts of parenthood

-thus, OCC Art 174 prohibited adoption of those who had legitimate and legitimated descendants

- Even repeal by Act 190 (Code of Civil Procedure) retained the old rationale that favored adopter

In re Adoption of Guzman (1941)

Facts

- May 20, 1940, spouses Petronilo Ramirez and Anacleta Camandre filed a petition for the adoption of Emiliano Guzman, of age and natural son of said Petronilo Ramirez with one Cristina Guzman.

Issue

WON a non-minor child can be adopted - NO

Ratio

- Law applicable to the case is the old Code Procedure, the petition having been filed prior to July 1, 1940, when the new Rules of Court took effect.

B. New Civil Code

Aug 30, 1950 - RA 386 (NCC)

Modern view: Adoption as adoptee-centric

- To extend to orphan or abandoned child the protection of society in the person of the adopter

- Still slightly adopter-centric as NCC adopted OCC provisions

Santos-Ynigo v. Republic (1954) – Still old view

Prasnik v. Republic (1956) – Modern view

NCC provisions protecting adoptee

- Resident aliens whose government has broken relations with RP not allowed to adopt (CC Art 335 (5))

- Person convicted of crime involving moral turpitude, when imprisonment > 6 years (CC Art 335 (5))

PD 603 (CYWC) and EO 209 (FC)

- Art 27 of CYWC allowed any person of age and full possession of civil rights to adopt, repealing restriction in CC Art 335(1) which prohibited those with legitimate, legitimated, and acknowledged natural children and natural children by legal fiction from adopting

- FC: left no doubt that welfare of adopted child is paramount

RA 8043 (Inter-Country Adoption Law) and RA 8552 (Domestic Adoption Act)

RA 8043 (1995) – in response to FC Art 184

- Governs adoption by foreigner or Filipino residing abroad

RA 8552 (1998) – spearheaded by DSWD

RA 9523 (2009) – amd. RA 8552

-hastened declaration of abandoned children were parents left no written commitment by converting from judicial to admin process (Dec for Availability for Adoption – 1 mo, Dec of Abandonment – 1 yr.)

RA 10165 (2012) – Foster Care Act

IV. Inter-country adoption laws

V. Domestic Adoption: Eligibility and Consent Requirements

A. Eligibility of Adopters

A.1 Qualifications of Filipino Adopters

RA 8552 Art III, Sec 7

Who may adopt:

a) Filipino citizen

1. Legal age

2. Full capacity of legal rights

3. Good moral character, no conviction for crime w/ moral turpitude

4. Emotionally and psych capable to take care of children

5. At least 16 years older than adoptee in position to support in keeping with means of family, has undergone pre-adoption services (Added by IRR)

Exception to 16 years:

i) Biological parent of adoptee

ii) Spouse of the adoptee’s parent

iii) Sibling of adoptee (Added by IRR)

Moral turpitude - everything done in contrary to justice, honesty, modesty or good morals.

- Includes: (Teves v. COMELEC)

- Murder- Rape- Theft- Robbery- Estafa- Violation of Dangerous Drugs Act- Bigamy- Concubinage- Forgery- Smuggling

- Guardian may adopt ward only after termination of guardianship. Mischief sought to be avoided: having to account for ward’s money during guardianship. Once all financial responsibilities are met, guardianship is terminated

In re Adoption of the Minor Edwin Villa (1967)

Facts

- Atty. Luis Santos, Jr. and Edipola Villa Santos would like to adopt the 4-yr old Edwin Villa y Mendoza.

- Edipola and Edwin are siblings. (Edipola is already 32 yrs. old, anlayo nung age gap!)

Issue

WON an elder sister may adopt a younger brother - YES

Ratio

- Regarding the dual relationship, it should be noted that relationship established by the adoption is limited to the adopting parents and does not extend to their other relatives, except as expressly provided by law. One relationship is by nature, the other by fiction.

- Lastly, we do not have any provision in the law that expressly prohibits adoption among relatives, thus they ought not to be prevented.

A.2 Additional Qualifications of Foreign Adopters

RA 8552 Art III, Sec 7

Who may adopt:

b) Aliens possessing same qualifications above, plus:

1. His country has diplomatic relations with RP

2. Living in RP for at least 3 continuous yrs prior to applicationand until adoption decree is entered

3. Certified by his diplomatic/consular office that he has legal capacity to adopt in his country

4. His government allows adoptee to enter his country as hisadopted child

EXCEPTION to residency and certification:

i) Former Filipino adopting relative w/in 4th degree ofconsanguinity or affinity

ii) Adopting legitimate child of his Filipino spouse

iii) Married to Filipino citizen and seeks to adopt jointlywith spouse a relative w/in 4th degree of consanguinity or affinity of the spouse

IRR, Sec 3

Alien – any person, not a Filipino, who enters and remains in the RP and in possession of a valid passport or travel documents and visa

“Continuous”

- Does not mean uninterrupted (as compared to paternity and filiation)

- Allows temporary absence of professional, business or emergency reasons not exceeding 60 days

“Residence” – actual and legal stay

Additional requirements

RA 8552 Sec 7(b)

- Certificate of residence in RP – Immigration or DFA

- Certification from consular/diplomatic office that appellant has legal capacity to adopt in his country

- Certificate from his gov’t that child will be allowed to enter his country and reside there permanently as an adopted child

-cannot allow that child automatically acquire citizenship or adopters

-adequate protection of child’s interest while at the same time preserving authority of receiving state

-ISSUE: Federal governments

-In absence of certificate, documents stating approved application with immigration services, consular offices producing certificates attesting their state policy to accept adopted children entering the country – accepted as compliance but subject to the discretion of the Family courts

(From IRR)

- Applicant’s Home Study Report must be accompanied by several documents including: police clearance from all places in the past 2 years immediately prior to residing in RP

-baka fugitive on the run

A.3 Joint Adoption by Spouses

PD 603 Art 29: allowed either spouse to file a petition for adoption - “husband and wife may jointly adopt”

FC Art 185: mandated joint adoption

RA 8552: retained

RA 8552, Art III, Sec 7 Husband and wife shall jointly adopt, EXCEPT in the ff cases:

1) One spouse seeks to adopt the legitimate child of the other

2) One spouse seeks to adopt his/her illegitimate child

Provided: Consent of other spouse

3) Spouses are legally separated – consent of spouse not needed

In case husband and wife jointly adopt, or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised

Republic v. CA and Bobiles (1992)

Facts

- Feb 2 1988, Zenaida Bobiles filed petition to adopt Jason Conda(6), living with her family since he was 4 mos.

- However, FC took effect on Aug 3, 1988. Under that law, joint adoption by husband and wife is mandatory (Art 185)

Ratio

a) Vested right

- During the time of the petition, Zenaida Bobiles had the right to file the petition on her own without joining her husband therein - the statute in force at the time of the commencement of the action is reckoned.

Republic v. CA and Toledano (1994)

Facts

- 1990: Sps. Clouse filed a petition to adopt Solomon Alcala, younger brother of respondent Evelyn Clouse. Alvin Clouse is natural-born citizen of USA. Married in 1981. 1988: Evelyn was naturalized

Ratio

- Art 184 (3): Aliens are not qualified, except

a) Former Filipino adopting relative by consanguinity

b) Adopting legitimate child of Filipino spouse

c) Married to Filipino and adopting jointly a relative by consanguinity of the Filipino

- Alvin Clouse does not belong to any of the categories (1) not on any of exceptions, 2) Solomon is not child or relative by consanguinity of spouse 3) Wife was no longer a Filipino citizen at time of adoption)

- While Evelyn may seem to qualify under Art 184(3), Art 185 mandates joint adoption by husband and wife

Republic v. Miller (1999)

Facts

- 1998: Sps. Claude and Jumrus Miller (Americans residing in Angeles since 1985) filed petition to adopt Minor Michael Madayag - Minor has been in their custody and care 2 weeks after birth

Issue

WON aliens can adopt a Filipino child before the effectivity of the general prohibition in the FC – YES

Ratio

Subsequent enactment of FC will not impair vested rights (Art 256)

Law in effect when petition was filed determines jurisdiction of courts

In Re: Petition for Adoption of Michelle P. Lim (2009)

Facts

- Monina and Primo Lim, childless married couple. Made it appear that Michelle and Michael were their real children.

- 2000: Monina married Angel Olario, an American citizen

- On 2002, Monina filed separate petitions for the adoption of Michelle and Michael, who were 25 (already married) and 18 years old respectively.

Ratio

a) Must jointly adopt

b) Alien spouse not qualified

Exceptions for joint adoption:

1) Children are legitimate children of either spouse

2) Children are illegitimate child of either spouse

3) Spouses are legally separated

- Consent not sufficient. Since alien spouse, there are other requirements,

1) Prove his country has diplomatic relations with RP

2) Living in RP for 3 continuous years prior to filing

3) Maintain residency until decree is entered

4) Legal capacity to adopt in his country

5) Adoptee allowed to enter his country as his adopted child

- Residency and certification may be waived if (not applicable)

1) Former Filipino adopting relative w/in 4th degree ofconsanguinity or affinity

2) Adopting legitimate child of his Filipino spouse

3) Married to Filipino citizen and seeks to adopt jointlywith spouse a relative w/in 4th degree of consanguinity or affinity of the spouse

- True that at age of majority, parental authority is terminated. However, parental authority is just one of the effects of legal adoption (See RA 8552, Art V)

A. 4 Adoption by Foster Family

DSWD Department Order 2000: Foster child may be adopted by foster family, guidelines:

a) Child is legally free, not matched for adoption

b) Foster family is qualified to adopt

c) Separation from foster family will be traumatic

i) Harmonious relationship bet child and family

ii) Children of family accept the foster child

iii) Accepted by extended family/relatives

iv) Integrated well w/ community

RA 10165 (Foster Care Act, 2012)

Sec 17 Foster parent may adopt foster child if all qualifications for an adopter under the Domestic or Inter-Country Adoption Act are met

- Same procedures, but trial custody may be waived if harmonious relationship already exists

- Gives primacy to the child’s best interest by preserving bond between child and foster parents

B. Eligibility of the Adoptee

FC Art 183: only minors can be adopted, except for those in Art 187 (child by nature of the adopter or his spouse, or if prior to adoption, consistently treated as own child)

RA 8552, Sec 8 Who may be adopted

The ff. may be adopted:

a) Any person below 18 y/o who has been administratively or judicially declared available adoption (new from RA 8552)

b) Legitimate s/d of one spouse by the other spouse

c) Illegitimate s/d by a qualified adopter to improve status to legitimacy

d) Person of legal age, if prior to adoption, said person has been consistently considered and treated as own child since minority

e) Child whose adoption has been previously rescinded

f) Child whose biological/adoptive parent/s have died

PROVIDED: No proceedings w/in 6 months from death

- Amended by RA 9523 IRR, a child declared available for adoption is: a child who was issued by DSWD a certification that child is legally available for adoption due to abandonment, neglect or dependence, or voluntarily committed

- DSWD issues certificate w/o need to file a case in court before declaration

Terms for children involuntarily surrendered (RA 9523 and SC Rule on Adoption)

Abandoned Child – no proper parental care or guardianship, or parents have deserted him for at least three (3) continuous months

Foundling – person whose facts of birth are unknown

Neglected Child – basic needs are deliberately unattended or inadequately attended for three (3) continuous months

2 kinds of neglecta) Physical – malnourished, ill-dressed, no shelter

b) Emotional – maltreated, abused, exploited, overworked, made to beg, exposed to vices

Dependent Child – w/o parent, guardian, or custodian, or said persons with to be relieved of care and custody

Exceptions to requirement of Certificate Declaring Legally Available in adoption proceedings ( RA 9523 IRR, Sec 4 )

1. Adoption of illegit child by either biological parent

2. Adoption of child by stepparent

3. Adoption of child by relative w/in 4 degree of consanguinity or affinity

Exceptions to minority

- RA 8552 Sec 8: b) (Legitimate s/d of other spouse) and c) (Illegitimate s/d to improve to legitimacy) – “son” and “daughter”, meaning even if no longer minor age

- RA 8552 Sec 8: d) (Consistently considered and treated by adopter as his own child since minority)

In Re Robert Paul

Held

57 y/o adopting 50 y/o lover is cynical distortion of the function of adoption. Adoption not means of obtaining legal status for non-marital sexual relationship.

C. Consent necessary for adoption

RA 8552, Sec 9 Whose consent is necessary to the Adoption (ABLISS)

a) Adoptee, if 10 y/o or over

b) Biological parents of child, if known, or legal guardian, or government instrumentality which has legal custody of the child

c) Legitimate s/d, 10 y/o and over, of adopters and adoptee

d) Illegitimate s/d, 10 y/o and over, of adopter if living with adopter and the spouse

e) Spouse of adopter and adoptee

C. 1 Biological Parents of Legitimate Children

- Consent must be obtained before these rights and duties be terminated and re-established in adoptee/s

- If legitimate child, both parents have to both consent, since father and mother jointly exercise parental authority over children

- Child by artificial insemination: such children are considered as legitimate children of husband and wife. In In Re: Adoption of Anonymous, it was held that consent of “father” is required before adoption of said child

- Likely the same in RP, as child born through artificial insemination w/ consent of both husband (written consent before birth of child) and wife is legitimate child of that marriage

- But if husband alleges that consent was obtained through mistake, fraud, violence, undue influence, then child is illegitimate -> consent of husband superfluous

- When mother’s husband (presumed father) signs affidavit denying paternity, mother’s consent will suffice

- If no such denial, Deed of Commitment signed by mother alone will not suffice -> will be considered abandoned

C. 2 Biological Parents of Illegitimate Children

- Role of mother: exercises parental authority over illegitimate children (FC Art 176) -> only consent of mother required

- Minority of mother does not diminish her authority, cannot be controlled by parents’ decision (See FC Art 176 (parental rights not dependent on age) and Art 216 (parental auth to grandparents only in default of parents))

- Parents or guardians of minor “are encouragedto serve as witness to signing Deed of Voluntary Commitment

-BUT cannot force her to decide in a certain way

- Role of illegitimate father: controversial

- RA 8552 IRR: “biological parent” – if legitimate, child’s mother and father by nature. If illegitimate and unacknowledged, mother alone.

- If illegitimate but acknowledged by father, IRR requires father’s consent for adoption -> contradicts FC Art 176

Statcon: IRR v. Law

If IRR were law, then maxim: special over general law

BUT since IRR not law, cannot trump a law

- Simple art of acknowledging should not give illegit father right over child unless maintained substantial relationship

- NY law (Domestic Relations Law): different legal rights of unmarried fathers based on WON full substantive rights, due process rights and no rights at all.

Factors of substantive relation:

a) Relationship with child’s mother

b) Willingness to acknowledge child

c) Support in keeping w/ capacity

d) For older children, regular and sustained communication with child

- If not under above qualifications, due process rights, can present evidence to court to avoid termination of parental rights. If no commitment at all, no rights (Lehr v. Robertson)

- Gray areas: unable to establish relationship because child was kept secret, or prevented by mother, incapacitated due to domestic violation or incarceration

Lehr v. Robertson, 463 US 248 (1983)

Facts

- Jonathan Lehr is the putative father of a child born out of wedlock. Lorraine Robertson, mother of the child married another man after the child was born. New couple filed to adopt child

- Appellant filed a petition to vacate the adoption order on the ground that it was obtained in violation of his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Issue/Ratio/Held

1. Appellant's rights under the Due Process Clause were not violated.

The mere existence of a biological link does not merit equivalent protection to fathers who acknowledge

2. Nor were appellant's rights under the Equal Protection Clause violated.

- Because he has never established a substantial relationship with his child, the New York statutes at issue did not operate to deny him equal protection. EPC does not prevent a State from according the two parents different legal rights

C. 3 When Parent(s) Consent is Not Required

Abandonment by parents of biological child

- Abandonment: any conduct which indicates settled purpose to forgo all parental duties and relinquish all parental claims to the child, neglect or refusal to perform obligations of care and support which parents owe their children

- Physical estrangement alone, w/o moral and financial desertion, is not tantamount to abandonment

- Merely permitting child to remain undisturbed in care of another is not the abandonment contemplated by law

Santos v. Aranzanso (1966)

Facts

- 1949: Simplicio Santos and Juliana Reyes filed petition to adopt minors Paulina and Aurora Santos

- 8 years later: wife dies intestate. Juliana’s cousins alleged

- Marriage between couple was bigamous.

- Adoption was also void for lack of written consent ofparents who were living and did not abandon them

Ratio

a) Parental consent not requisite

Adoption court made a finding on abandonment

Abandonment: any conduct on part of parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child. Neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children.

- Although CFI judgment did not use word abandoned, the findings set in decision constitute abandonment

b) A judgment can be set aside on ground of fraud only in a separate action brought for that purpose, NOT by collateral attack , thus CA erred

Cang v. Clavano (1998)

Facts

- Herbert Cang and Anna Marie were married and had 3 children. They judicially separated (affair with family friend) and Anna Marie was granted the custody of the children. Herbert went to the States and divorced her.

- Maria Clara, sister of Anna Marie, and her husband Ronald Clavano petitioned to adopt the three kids because Anna Marie wanted to go abroad and could not take care of the minor children.

Ratio

a) That there is no abandonment, because despite the meager amounts that Herbert was able to send and deposit in bank accounts, the main fact is that there were efforts exerted to provide for the family.

- There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and counsel if they were given to adopting parents.

Landingin v. Republic (2006)

Facts

-2002: Diwata Landingin, USA citizen, filed petition to adopt minors Elaine, Elma, and Eugene Ramos – Children of her brother Manuel Ramos and Amelia

- Manuel died and children were left with grandmother. Amelia went to Italy and remarried there and had two children.

Ratio

a. Written consent of biological parents are necessary to the validity of decree for adoption.

Alleged that in an interview, Amelia consented to adoption. But there was no written consent, and she was not presented in court.

b) Amelia has not abandoned children.

Abandonment is complete neglect and refusal to perform natural and legal obligations of love and support.

- Financial consideration should not be paramount consideration in deciding to deprive parental authority to a mother.

Duncan v. CFI (1976)

Facts

- May 1967, Atty. Corazon de Leon Velasquez, as de facto guardian, gave consent to child handed to her by client.

Ratio

There can be only one other person who could be the guardian exercising patria potestas over the child. No other person could be called guardian of said infant, she having extended physical shelter and custody and care over infant

- She is therefore the de facto guardian of abandoned child, no one else can give consent.

*If decided under RA 8552

-consent is not from de facto guardian but from legal guardian or DSWD, the government instrumentality entrusted with custody of the child

-file petition before the DSWD to declare child as abandoned

C. 4 Consent by Children and Third Parties

Other individuals whose consent is required:

- Adoptee who is at least 10 y/o, after counseling

- Legitimate children at least 10 y/o

- Illegitimate children at least 10 y/o who are living with adopter

- Adopter’s spouse

- Adoptee’s spouse

- Consent must be authenticated before RoC

- Adoptee’s spouse: to inform that should adoptee and spouse have no heirs, adopters will inherit

VI. Procedure for Agency Adoption

- Nasa Book lang ito lolVII. Effects of Adoption and Recission

A. Effects of Adoption

RA 8552, Sec 16 Parental Authority

Except in cases where biological parent is the spouse of adopter, all legal ties between the biological parent and adoptee shall be severed and the same shall be vested on the adopters

RA 8552, Sec 17 Legitimacy

Adoptee shall be considered legitimate s/d of the adopter for all intents and purposes and is entitled to all rights and obligations provided by law to legitimate s/d w/o discrimination. To this end, the adoptee is entitled to love, guidance and support in keeping w/ means of the family

- Therefore, Surname, Support, Succession (like legit and illegit)

RA 8552, Sec 18 Succession

In legal and intestate succession, adopter(s) and adoptee shall have reciprocal rights of succession w/o distinction from legit filiation. HOWEVER, if adoptee and biological parent(s) left a will, the law on testamentary succession shall govern

A. 1 Parental Rights

A. 1a Parental Authority of the Adopters

By virtue of the adoption decree, parental authority of biological parents is terminated and vested in adopter

Tamargo v. CA (1992)

Held/Ratio

Rule: those exercising parental authority should be held responsible.

To avoid liability during trial custody period, must prove that parental authority was (even only briefly), with the biological parents

It is unfair for parental authority to retroact to the Rapisuras to unduly burden them with liability or a tortuous act that they neither could’ve foreseen nor prevented.

A. 1b Visitation Rights of Biological Parents

The law does not prohibit agreements on post-adoption visitation. BUT it is also not mandated, nor courts mandated to recognize it if not beneficial to the child.

A.2 Legitimacy of the Child

RA 8552: “for all intents and purposes

- Includes rights such as surname, support, succession, and also the intangibles such as love, attention, encouragement, and guidance

A.3 Name of Adopted Child

A. 3a Surname

SURNAME OF THE ADOPTER (See if separated)

Johnston v. Republic: married woman adopting singly -> only her maiden surname (since husband did not adopt, else misleading if used husband’s surname)

If legally separated (no cut and dry answer)

The surname of the female adopter is her legal name and not her husband’s surname that she merely acquired by the marriage (Johnston)

In Laperal v. Republic, since LS is not separation of the vinculum, wife retains name and surname employed before LS.

Author: Adopter should not be barred from reverting to use of her maiden surname. After all, CC Art 370 is not mandatory: “married woman may use”. Married woman’s legal name continues to be her maiden surname.

Republic v. CA and Wong (1992)

Ratio*While it is in the law that adopted shall bear surname of the adopter, change of name is more an incident rather than the subject of adoption proceedings -> the status of paternity and filiation between adopter and adoptee is subject, as the primary consideration is the child’s welfare

- Usual effect: transfer of custody, duty of obedience by child, and other legal consequences and incidents SUBJECT to limitations imposed by statute.

A. 3b First name

THE DECREE OF ADOPTION SHALL STATE THE NAME BY WHICH THE CHILD IS TO BE KNOWN, ADOPTERS HAVE RIGHT TO CHOOSE NAME OF ADOPTED CHILD

RA 8552, Sec 13: the decree of adoption shall “state the name by which the child is to be known”

*The aforementioned amendments preclude Hernandez (infra) ruling from happening again.

Republic v. Hernandez (1996)

Held/Ratio

Change of name cannot prosper

- Kevin is an infant barely over a year old, he has not exercised full civil rights or engaged in contractual obligations, ergo no way state or other person may be prejudiced

- Changing given name in civil registry is a substantial change that can only be done through strict compliance with prod and subs requirements for Rule 103, RoC Change of Name

*With RA 8552, adopters have right to choose name of adopted child - > one of the joyful experience of being parents, consistent with “all intents and purposes”

A. 3c Middle Name

LAW IS SILENT, BUT SINCE LEGITIMATE CHILD BY VIRTUE OF ADOPTION, ENTITLED TO BEAR THE SURNAME OF FATHER AND MOTHER

PAG MAG ISA ANG NAGADOPT, WALANG MIDDLE NAME, SURNAME NG ADOPTER

Adoption of Stephanie Nathy Astorga Garcia (2005)

Facts

- Honorato B. Catindig filed petition to adopt minor illegitimate child Stephanie, with a middle name change

Ratio

- Law is silent on which middle name adoptee should use.

- Being a legitimate child by virtue of adoption, Stephanie is entitled to all rights of legit child w/o discrimination.

- Also, use of natural mother’s surname as middle name with maintain her maternal lineage, since she is still an heir of biological parent

A. 4 Nationality

DOES NOT CONFER CITIZENSHIP OF THE ADOPTER TO ADOPTED

Tolentino: right to confer citizenship is exclusive to state. Yes, adopted has same rights as legitimate child, but this refers to CIVIL RIGHTS, NOT POLITICAL RIGHTS. Adoption creates relation bet adopter and adopted, but not necessarily State and adopted.

Rule: Philippine law does not prescribe automatic acquisition of adopter’s nationality (political, up to the state of adopted). Laws conferring foreign citizenship on adopted, does not divest child of Filipino citizenship. In this case, the child now enjoys dual citizenship.

A. 5 Succession

FC: ADOPTED SHALL REMAIN INTESTATE HEIR OF PARENTS AND OTHER BLOOD RELATIVES

RA 8552, Sec 18: In legal and intestate succession, adopter(s) and adoptee shall have reciprocal rights w/o distinction from legitimate filiation. If adoptee and the biological left a will, law of testamentary succession shall govern

Adoptee inherits as compulsory heir of adoptive parents, same share as legitimate child.

Issue remains: inherit from biological parents?

A. 5a Between Adoptee and Adopter

ADOPTEE INHERITS AS COMPULSORY HEIR OF ADOPTIVE PARENTS, SAME SHARE AS LEGITIMATE CHILD.

A. 5b Between Adoptee and Adopter’s relatives

RELATIONSHIP IS CREATED ONLY BETWEEN ADOPTEE AND ADOPTER, SO CHILD HAS NO RIGHT TO INHERIT FROM RELATIVES OF ADOPTERS. PARENTS OF ADOPTERS WERE CONSIDERED TOTAL STRANGERS WRT TO INHERITANCE (SAYSON V. CA, INFRA)

BUT since RA 8552 says “entitled to all legal rights provided by law to legit children, there is a need to revisit this reasoning.

Adoptee inherits as compulsory heir of adoptive parents, same share as legitimate child.

Sayson v. CA (1992)

Ratio

- Challenge to validity of adoption cannot be collaterally attacked

- Attack in separate, direct proceeding, not in this petition for partition

Adopted child succeeds in the same way as legitimate child

- But Delia and Edmundo do not have the right of representation because the grandparents are considered strangers to the adopted child. The relationship created by adoption exists only between the adopting parents and the adopted child. Thus, while the adopted children have the right to succeed their parents, they do not have the right of representation.

A. 5c Between Adoptee and Biological Parents

8552: SILENT

FIRST VIEW: ADOPTED HAS NO RIGHT, SINCE IT WAS NOT REPRODUCED. ART 16-18: “ALL LEGAL TIES SHALL BE SEVERED”, W/C WOULD INCLUDE RIGHT TO SUCCESSION

SECOND VIEW: IN ABSENCE OF EXPRESS REPEAL, ART 189(3) OF FC IS GOOD LAW. ALSO, RESOLVE DOUBTS IN FAVOR OF ADOPTEE.

- Biological child should not be prevented from inheriting if biological parents’ condition improve

- BUT: sever all ties. Edi leave something to biological child in a will.

- Mischief: adopters die, adoptee goes back to parents with estate, then biological parents might kill adoptee in order to inherit

A.6 Benefits to which Adopters are entitled

IRR Sec 34: adoptive parents also enjoy all benefits to which biological parents are entitled. MATERNITY AND PATERNITY BENEFITS ENJOYED IF ADOPTEE IS BELOW 7 YEARS OF AGE AS DATE CHILD IS PLACED WITH ADOPTERS

Civil Service Commission – WON Mrs. Tan could avail of maternity leave since she has adopted – YES

Section 11 of CSC Memorandum Circular – 2 years service: 60 days maternity leave full pay, if 1-2 years: 60 days of half pay

-Binding on government service only

B. Rescission of Adoption

RA 8552, Section 19 Grounds for Rescission

-Petition of adoptee (w/ assistance of DSWD if minor or incapacitated), GROUNDS

a) repeated physical and verbal maltreatment by adopters, despite counseling

b) attempt on life of adoptee

c) sexual assault or violence

d) abandonment/failure to comply with parental obligations

Adoption not subject to rescission of adopters. But may disinherit adoptee as provided in CC Art 91

Parent-child rel created by law is also “for better or for worse”

Who may file, and until when

Only adopted may file

Must file FIVE (5) years after reaching age of majority, or 5 years from recovery from incompetency

Lahom v. Sibulo (2003)

Ratio

- Vested rights do not apply, not present at time of filing.

Republic v. CA and Bobiles and Republic v. Miller – statute in force at time of commencement of action.

- Dura lex sed lex. But she can forfeit benefits accruing to child if underserved. May deny adopted child his legitime and by will and testament, exclude him from share in disposable portion of estate CC 915

CC 919 – Grounds to disinherit an adopted child (page 233)

B. 2 Effects of Rescission

RA 8552, Sec 20 Effects of Rescission

Parental authority restored to biological parents (if known), or legal custody of DSWD shall be restored if minor/incapacitated

Reciprocal rights and obligations of adopter to adoptee shall be extinguished.

Civil registrar shall cancel amended birth certificate and restore original

Succession rights to revert to pre-adoption status, but only as of date of judgment of rescission. Vested rights acquired before rescission are respected

Does not wipe out adoption ab initio. Only future effects cease, and the status of child

VIII Violations and Penalties: Focus on Simulation of Birth

A. Simulation of birth (SB)

Sec. 3(j) of RA 8552

“Simulation of birth” is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is NOT his/her biological mother, causing such child to lose his/her true identity and status

Ex. of simulation of birth

1. Pregnant woman admits herself in hospital under an assumed name, intending to have newborn registered as the child of another.

*As hospital expenses are out of pocket, unlike if bills were to be paid by an insurance company, a pregnant woman could easily get away with this.

2. Pregnant woman provides hospital with data pertaining to the couple who would later on pass themselves as the child’s parents.

3. These fraudulent data would then appear in the child’s birth certificate

*Art. 166 FC - ”Record of birth appearing in the civil register or final judgment” establishes legitimate filiation.

*Can only be impugned under stringent grounds in Art. 166, FC.

Who gets penalized for SB

Sec. 21(b) of RA 8552

Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is NOT his/her BIOLOGICAL PARENT(S) shall be guilty of simulation of birth x x x

Art. 347, Revised Penal Code

x x x

Any physician or surgeon or public officer, who, in violation of the duties of his profession or office, shall cooperate in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification.

Domestic Adoption Act Revised Penal CodeAlludes to any physician or nurse or hospital personnel

Specifies physicians and surgeons.

*Common occurrence in hospitals:

Women leave children in the hospital to avoid paying bills, and the staff, able to locate couples wanting children and to pay bills, does the crime.

*DAA IRR – “all hospitals, physicians, and midwives in attendance at the birth of a child shall register such birth not later than 30 days from the date of said birth as required under the Civil Register Law.”

B. Procedure for Rectification

Sec. 22 of RA 8552 Rectification of Simulated Births

A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act:

Provided, that the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter:

Provided further, that the application for correction of the birth registration and petition for adoption shall be filed within 5 years from the effectivity of this Act and completed thereafter:

Provided finally, that such person complies with the procedure as specified in Article IV of this Act and other requirements as determined by the Department.

*From March 1998 to 2003, those who sought to rectify SB could file single petition for: (3-in-1 petition)

(a) correction of entries in the birth certificate or cancellation of the birth cert

(b) declaration of abandonment to make child available for adoption, in case biological parents do not sign Deed of Voluntary Commitment

(c) petition for adoption

*SC Rule on Adoption, Sec 8:

Petition applying to rectify must also allege:

a. Petitioner is applying for rectification of an SBb. The SB was made prior to effectivity date of RA 8552 and

application for rectification and petition for adoption filed within 5 years

c. SB was made for the best interests of the adopteeAdoptee consistently considered and treated by petitioner as own child

*There might be confusion as to it was the filing of the single petition or the amnesty for SB, comparing 8552 Provision with the SC Rules on Adoption. => amnesty is regulated by the RA.

* No prohibition to file petition after 5-year period, but penalty may be incurred.

**If it were the other view held, that after 5 years, hindi na single petition yung ifa-file:

Rectifying births by 3 separate procedures might be used to circumvent law

MORE 1) EXPENSIVE AND 2) TIME CONSUMING*Ma’am: To address confusion over rectification of SB, a solution: EXTEND PRESCRIPTIVE PERIOD.

- *Congress encouraged to pass new law offering amnesty to those who simulated birth of child as long as petitions for adoptee’s best interests and consistently considered and treated as own.- Should include simulations done after RA 8552 effectivity date.

- Not intended to encourage SB but merely recognizes such children are left without protection, bereft of legal rights to support, surname, succession.

C. Penalties

*RA 8552 penalty range: fine (P50k-200k) to prision mayor

*Violations include:

Obtaining consent for adoption through coercion, undue influence or fraud

Non-compliance with procedures and safeguards provided by law

Subjecting child to be adopted to danger, abuse, or exploitation

Penalty for Simulation of birth

Sec. 22(j), RA 8552

Any person x x x guilty of simulation of birth x x x shall be punished by prision mayor in its medium period and a fine not exceeding P50,000.00.

Penalty for syndicates

Sec. 21, RA 8552

Acts punishable under this Article, when committed by a syndicate or where it involves 2 or more children shall be considered as an offense constituting child trafficking and shall merit the penalty or reclusion temporal.

*Syndicate = 3 or more persons conspiring to do any unlawful act & carry it out

RA 8522 IRR, Sec 44

- Duty of every person, child caring or placing agency having knowledge of violation to report to nearest police station, LGU, or

DSWD, which in turn is compelled to act within 24 hrs. lest criminal/admin liabilities be incurred.

RA 8522 IRR, Sec 44, Par 2

- Failure of adopters to start legalization of adoption of children after 6 months trial custody period = an act not in the best interest of the child.

PARENTS AND CHILDREN

Parental Authority – General Provisions

FC 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 caring and reading of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being

Parental authority and responsibility:

a) Caring for and rearing for civic consciousness and efficiency

b) Development of moral, mental and physical well-being

FC Art 210

Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law

Parental authority as a personal right, cannot be renounced except in cases authorized by law

a) Guardianship

b) Adoption

c) Surrender to orphanage or asylum

FC Art 211

Father and mother shall jointly exercise parental authority over the persons of their common children.

In case of disagreement, father’s decision shall prevail, UNLESS there is a judicial order to the contrary

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as they are under parental authority

Children’s duty

At any age:

a) Observe respect and reverence

Under parental authority

b) Obey them as long as they are under parental authority

FC Art 212

In case of absence or death of either parent, parent present shall continue exercising parental authority. The remarriage of the surviving parent does not affect the parental authority over the

children, unless the court appoints another person to be the guardian of the person or property of the child

Parents must continue to exercise authority in absence of one of them. Even if remarried, the authority continues

FC Art 213

In case of separation of 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 (7) years of age, UNLESS chosen parent is unfit.

(Tender-years presumption) No child under 7 years of age shall be separated from the mother, UNLESS court finds compelling reason otherwise

FC Art 214 In case of

a) Death

b) Absence

c) Unsuitability

Of parents, substitute parental authority 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

PD 603, Art 58

Parents and guardians are responsible for damage caused by the child under their parental authority

Tender Years Presumption

Ex Parte Devine (1981)

Held: The tender-years presumption is unconstitutional for violating EPC. Discriminates between father and mother.

Male gains custody only if female unfit, even if both fit, child goes to female.

Moe v. Dinkins – age as proxy for maturity

Ex Parte Devine – sex as proxy for fitness to become parent

Espiritu v. CA (1995)

Held: TYP is not absolute, may be overcome by compelling reasons

Can use evidence not for the advancement of trial (interview for school purposes, foreign travel)

- In this case, mother emotionally disturbed children with her affair

Sy v. CA (2007)

Held: Art 213 applies as presumption, absent proof to mother’s unfitness

- No substitute for mother’s love and devotion

Parental Unfitness

Feldman v. Feldman (1974)

Held: Peculiar sex practices do not ipso facto constitute unfitness for custody, if these practices do not affect the children.

Santos v. CA (1995)

Held: Parental authority cannot be renounced except cases authorized by law

- Fact that he kidnapped child does not render him unfit.

- Fact that soldier should not be material to his fitness

- Unable to provide for 3 years, now making up for it – sign of intent to correct the wrong he did

Gualberto v. Gualberto (2005)

Held: Lesbianism of mother not enough to overcome TYP, she was fit anyway

Must show that mother has provided circumstances not conducive to child’s moral development.In this case, child was too young anyway.

Role of Child’s Preference

Laxamana v. Laxamana (2002)

Held: Case remanded to take into account the choice of the children who were above 7 at that time

Relying solely on psychiatric and psych evaluation is improper.

Presumption of Primary Caretaker

Garska v. McCoy (1981)

Held: Presumption of primary caretaker: preparing/planning of meals, bathing, grooming, bed, medical care, disciplining, educating etc. – person who provides this is the primary caretaker

Mnookin: Flip coin

Random, but

a) Government’s responsibility for best interest hard to ignore

b) Venting is good for the sould

OTHER RIGHTS AND DUTIES IN EXERCISE OF PARENTAL AUTHORITY

Art 220 – Parents exercising parental authority over their unemancipated children have the following rights and duties:

1. Keep the children 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

2. Provide them with love and affection, advice and counsel, companionship and understanding

3. Provide moral and spiritual guidance, inculcate honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate interest in civic affairs and compliance with citizenship duties

4. Furnish them with education, recreation, and protect them from bad company and bad habits

5. Represent them in all manners affecting their interests

6. Demand from them respect and obedience (Right)

7. Impose discipline as may be required by circumstances

8. Other duties imposed by law

Art 221 – Parents/guardians/other with parental authority shall be civilly liable for injury and damages caused by acts/omissions of unemancipated children under their care

Art 222 – Courts may appoint a guardian of child’s property, or ad litem when so required

Art 223 – Parents or those with parental authority may seek court for an order providing for the disciplinary measures over the child. Child shall be entitled to assistance of counsel, of his choice or by court appointment, with summary hearing.

If the court finds the petitioner at fault in said hearing, it may order the deprivation or suspension of parental authority of the petitioner or adopt other measures, as it deems proper

Art 224 – measures in preceding article may include commitment of the child for not more than 30 days in entities or institutions engaged in child care or in children’s homes duly accredited by the proper agency. The parent with authority shall not interfere with care of the child whenever committed but shall provide for support. Upon proper petition or on its own, the court may terminate such measures.

Property

Art 225 – Father and mother jointly exercise guardianship over property of the common unemancipated child without necessity of court appointment. In case of disagreement, the father prevails unless court says otherwise.

If market value of child’s property exceeds 50k, parents shall be required to furnish a bond amounting to 10% of such, in fulfillment of obligation of general guardians XXX

Art 226 – Child owns any property earned by his own work/industry or by onerous/gratuitous title. It shall be used for his support and

education unless title of transfer says otherwise. Rights of parents over fruits and income shall be limited to child’s support. Needs of the family shall be secondary.

CABANAS V. PILAPIL (1974)

*mother and uncle claim to be the trustee of a minor child beneficiary’s proceeds in deceased father’s insurance policy

HELD: Mother has right to administer of the property of the child in the absence of the father, not the uncle.

LIBI v IAC (1992)

Ex-couples Julie Ann and Wendell died by gunshot wounds. Julie Ann’s parents filed for damages against Wendell’s parents.

HELD

Parents are primary liable for damages caused by minor children from quasi-delicts and criminal offenses except when they exercised due diligence. In this case, parents did not exercise due diligence since the son gained access to the key of the safety deposit box where gun was, they did not know of his job, and the picture of him with a gun.

LINDAIN V CA (1992)

SUMMARY: When plaintiffs were minors, their mother sold parcels of land whose title was under their names.

HELD:

Sale of minor children's property executed by the mother is void. Judicial approval is necessary because the powers and duties as legal administrator are only powers of possession and management; no power to mortgage, encumber or dispose.

People v. Silvano (1999)

HELD: Rape can never be justified as parental punishment!

Shields v. Gross (1983)

Plaintiff’s mother Teri Shield gave two consents in favor of the defendant. The pictures were used in a whole lot of ad campaigns and magazines. She filed a case to enjoin defendants from further use of the photos

HELD

She cannot disaffirm the prior consent executed on her behalf back She cannot nullify the consent given by her mother on her behalf. Her mother did this as her proper guardian and the decision to give that consent back then is binding to her even after attaining majority.

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY

Substitute Parental Authority

FC Art 216: In default (death, absence, unsuitability) of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years ofage, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years ofage, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a)

FC Art 217: In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (314a)

Special Parental Authority

FC Art 218: The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special

parental authority and responsibility over the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a)

FC 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.

The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances.

All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n)”

For damages caused by unemancipated minors:

- Persons/Institutions with special parental authority - principally and solidarily liable - Parents, judicial guardians or persons with substitute parental

authority - subsidiary liableEXCEPTION: Liabilities will not apply if exercise of proper diligence is proven

Substitute Parental Authority Special Parental AuthorityGrandparents, oldest sibling, actual custodian

School, administrator and teachers

In case of death, absence or suitability

Exercised concurrently with parental authority

Subsidiarily liable for damages caused by act or omission under supervision of people with special parental authority

Principally and solidarily liable for damages caused by act or omission of minor under their custody

Law is silent on corporal punishment

Cannot inflict corporal punishment

CC Art. 2180: (Under “Quasi-Delicts”)

The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)”

Liabilities:

1. Father and mother (upon death of father)

- For their minor children

2. Guardians

- For minor children under their authority and living with

3. Owners and managers of establishments

- Liable for damages caused by their employees (in said branch of employment or on occasion of their functions)

4. Employers

- Liable for damages caused by their employees and household helpers doing their tasks, even if employers aren’t engaged in business or industry

5. The State- When it acts through a special agent

6. Teachers, heads of establishments of arts and trades- Liable for damages caused by their pupils, as long as they remain in their custody

Exception to liability: When it is proven that diligence was observed to prevent said damage from happening.

Palisoc v. Brillantes (1971)

Facts:

Fist fight, recessHELD:

School “custody” means protective and supervisory custody over students as long as the students are within the school- including during recess. Nothing in the law requires that students must live and board at the school. Student should just be within the control and influence of school authorities.

Amadora v. CA (1988)

Facts

Physics project - shot to death Student killed classmate by beating him. The head of the school and the teacher-in-charge were HELD liable together with the offender - though latter was NOT boarding in school

HELD

Nothing in the law that requires that for the liability to attach, pupil must live in school as erroneously HELD in Exconde and Mercado

DIFFERENCE between Palisoc and Amadora

Palisoc: during school hours, liable if impleaded

Amadora: not during school hours, but what matters was the purpose. School is still liable, because the children are there

School activity: sanctioned or official activity, WON inside school or outside school

St. Mary’s Academy v. Carpitanos (2002) – STRAY?

Facts

Enrollment drive - vehicle overturned

HELD

For the school to be HELD liable, there must be a showing that the act or omission was the proximate cause of the injury.

It was the reckless driving of Daniel and the mechanical failure of the vehicle when its steering wheel got detached and thus caused the vehicle to lose control and turn turtle.

Vancil v. Belmes (2001)

Facts

Wife and mother in-law

HELD

Surviving grandparent can exercise substitute parental authority only in case of death, absence or unsuitability of respondent.

Moreover, petitioner is a naturalized American citizen and is a resident of Colorado. She is also old and has a conviction for libel so to award her guardianship over the person of Vincent is questionable.

The SC also said that the courts should refrain from appointing persons as guardians who are not within the jurisdiction of our courts for, they will find it difficult to protect the wards.

SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY

FC Art 225 – Father and mother jointly exercise guardianship over property of the common unemancipated child without necessity of court appointment. In case of disagreement, the father prevails unless court says otherwise.

If market value of child’s property exceeds 50k, parents shall be required to furnish a bond amounting to 10% of such, in fulfillment of obligation of general guardians

Verified petition for approval of such bond shall be filed in the proper court where the child resides, or if in a foreign country, in the court where property is situated. It shall be docketed as a special summary proceeding where all issues shall be resolved.

Ordinary rules of guardianship shall be merely suppletory except when child is under substitute parental authority, or guardian is a stranger, or parent has remarried then ordinary rules apply

FC Art 226 – Child owns any property earned by his own work/industry or by onerous/gratuitous title. It shall be used for his support and education unless title of transfer says otherwise.

Rights of parents over fruits and income shall be limited primarily to child’s support and secondarily to the collective daily needs of the family

Child owns the fruits of his own work regardless of legal guardianship over his property

o Usufruct has right to use, but no right to own!o Only limited usufruct by his parents granted by

parental authority, hence it is subordinated by fulfillment of parental duties

o Usufruct is limited to fruits of the child’s property Child’s salary is not included since it counts as

property of the child in itselfHow the usufruct is extinguished:

o Emancipation of childo Death of the childo Loss of parental authority by judicial decreeo Consent of parent to child living independentlyo Cases of disinheritance and incapacity to succeed by

parent (unworthiness)

FC Art 227 If parents entrust management/administration of any of their properties to unemancipated child, net proceeds of property shall belong to the owner (parents).

The child shall be given a monthly allowance not less than what would be paid to an administrator who was a stranger, UNLESS the owner grants all the proceeds to the child. All proceeds given as such shall not be charged against the child’s legitime.

Allows for compensation of a child whom the parents have entrusted with management of property

o What would be paid to a stranger

Termination

FC Art 228 Parental authority terminates upon the following:

1. Death of parents

2. Death of the child

3. Emancipation of the child

FC Art 229 Parental authority also terminates upon the following unless revived:

1. Upon adoption of the child

2. Upon appointment of a general guardian

3. Judicial declaration of abandonment of a child in a case for that purpose

4. Upon a competent court’s final judgment, divesting the parent of authority

5. Judicial declaration of absence or incapacity of personwith authority

Parental Authority is revived by:

1. Judicial rescission

2. Judicial order revoking appointment

3. Judicial declaration reversing abandonment

4. Judicial restoration

5. Judicial pronouncement of reappearance, or now capable

Suspension

FC Art 230 – Parental authority is suspended upon conviction of crime with a penalty of civil interdiction. Authority automatically reinstated upon service of penalty or pardon/amnesty

FC Art 231 Other instances of suspension of parental authority

1. Excessive harshness or cruelty towards the child

2. Corrupting orders, counsel or example

3. Compels child to beg

4. Subjects child or allows him to be subjected to acts of lasciviousness

5. Includes culpable negligence of parents leading to any of the above

Termination - Needs judicial action

Suspension - Does not need judicial action

FC Art 232 Subjecting the child or allowing him to be subjected to sexual abuse shall cause the person responsible to be permanently deprived of parental authority.

FC Art 233 Person with substitute authority exercises the same degree of authority as the child’s parents. School administrators and teachers may not inflict corporal punishment upon the child under any circumstances.

RA 7610 – Anti-Child Abuse Act

Sec 5 – Child prostitution and sexual abuse

Sec 6 – Attempting to commit a child into prostitution

Sec 7 – Child Trafficking

Sec 8 – Attempt to commit child trafficking

Sec 9 – Obscene publications and indecent shows

Sec 10 – other acts of neglect, abuse, cruelty or exploitation

-Sec 27 – who may file complaint?

- Offended party- Parents/guardians- Ascendants or collateral relatives within 3rd civil degree of

consanguinity- Officer, social worker or representative of a child caring

institution, DSWD- Barangay chairman- At least 3 concerned citizens present when the offense occurred

Sec 28 – Protective custody of the child - DSWD

Sec 31(c) – Penalties

- Maximum period when offender is ascendant, parent, guardian, stepparent or collateral relative by consanguinity or affinity within the 2nd civil degree

Abiera v. Orin

FACTS

Son, special admin of father’s estate files action

HELD

No, rights of administrators are purely personal

Likewise, the right of administration applies only to the estate and properties being administered

- Juan’s right as administrator (given his parental authority) of his children’s property and estate died with him

o Therefore, he could not have transferred it to Sebastian Juan could have taken action as himself, not his son

who is the admin of his estateSebastian as administrator of his father’s properties could only invoke rights which pertained to those properties

Cortes v. Castillo and Herrera

FACTS

Wife adultery twice, no means of support

HELDAside from inability to support her children, the fact that she had been convicted of adultery is proof that she may have corrupt moral values that may be harmful to the welfare of the minors.

Both under the civil law and the common law, the best interests of the child is the paramount consideration.

Chua v. Cabangbang

FACTS

Mother abandons child, after 5 years files to get her back

HELD

While Art. 313, CC: “Parental authority cannot be renounced or transferred in cases of guardianship or adoption approved by the courts, or emancipation by concession” “The courts, may, in cases specified by law, deprive parents of their parental authority.”

Art. 332, CC provides: “The courts may deprive the parents of their authority to suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders, counsels, or examples, or should make them beg or abandon them.”

Evidence in the case leads to the conclusion that she had the intention to forgo all parental responsibilities and claims with respect to the child. She abandoned her when she needed her most (4mos old) and waited for 5 years.

RIGHTS AND DUTIES OF CHILDREN:

CIVIL CODE ARTICLES:

Article 356-375

Article 376. No person can change his name or surname without judicial authority.

FC Art 211 (2) - Children shall always observe respect and reverence towards their parent and are obliged to obey them as long as the children are under parental authority.

FC 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 is unfit.

- Tender years presumption child below 7 years old goes to the mother (Presidential Decree 603)

- In cases of legal separation innocent spouse gets custody unless otherwise directed by Courts for the child’s best interests

- In case of separation in fact Child will be allowed to choose parent if above 7 years of age UNLESS!

- Court declared parent unfit (habitual drunk, impoverished, moral depravity)

- In case neither parent is fit for custody Court appoints a third person/guardian/benevolent society

- Foremost consideration is the welfare of the child!

FC Art 226: The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter’s support or education, unless the title or transfer provides otherwise.

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.

The usufruct can be extinguished in the ff. ways

(1) Emancipation of the child

(2) Death of child

(3) Loss of parental authority through judicial decree

(4) Consent of the parent to the child living independently

(5) Disinheritance or incapacity to succeed by reason of unworthiness

P.D. 603 The Child and Youth Welfare Code

Article 3. Rights of the Child. - All children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors.

Article 4. Responsibilities of the Child. - Every child, regardless of the circumstances of his birth, sex, religion, social status, political antecedents and other factors shall:

F. Parents and Children – When rights clash

RA 10354, Sec 14. Age- and Development-Appropriate Reproductive Health Education. – The State shall provide age- and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers informal and non-formal educational. . . The Department of Education (DepED) shall formulate a curriculum which shall be used by public schools and may be adopted by private schools.

Strunk v. Strunk (1969)

FACTS

Tommy and Jerry (Down’s syndrome). Kidney transplant.

HELD

The operation was approved because it was held to be for the “best interest of the incompetent.” The testimony of the psychiatrist held that Tommy (only living sibling; vital to his improvement) was indispensable for the welfare of Jerry

Curtis v. School Committee (1995)

FACTS

Condom availability program (nurse and vendo machine)

HELD

People possess a fundamental liberty interest to be free from unnecessary government intrusion but the type of interference necessary to support claim should be that which causes a coercive or compulsory effect on the claimants' rights. Mere exposure to program offered at school does not amount to unconstitutional interference with parental liberties without the existence of some compulsory aspect to the program.

COERCION – exists when the governmental action is mandatory and provides no outlet for the parents such as refusal to participate in a program results in sanction or in expulsion.

Roe v. Doe

FACTS

Does a parent have the duty of continuing support when his or her minor child of employable age and in full possession of her faculties, voluntarily and without cause abandons the parent's home, against the will of the parent, and for the purpose of avoiding parental control? - NO

HELD: 

Where a minor child of employable age and in full possession of her faculties voluntarily and without cause abandons the parent's home against the will of the parent and for the purpose of avoiding parental control, she forfeits her right to demand support.

Rule for withholding support

1) Reasonable demands - disobeyed

2) Must not endanger life of child

SUMMARY PROCEDURE

FC Art 247 The judgment of the court shall be immediately final and executory. (n)

FC Art 248 The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n)

Incidents Involving Parental Authority

FC Art 249 Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (n)

Art. 223, FC: - Regarding disciplinary measures over the child

Art. 225, FC: - Regarding parents’ joint legal guardianship over the property or income of their unemancipated children- Filing of petition for approval of bond shall be filed in the appropriate court

Art. 250, FC: “Such petitions shall be verified and filed in the proper court of the place where the child resides. (n)”

Art. 251, FC: “Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n)”

Art. 252, FC: The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable.

Chapter 2: (Art. 239 – 248) [Separation in Fact]Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withHELD or cannot be obtained, a verified petition may be filed in court alleging the foregoing FACTS.Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action.Art. 247. The judgment of the court shall be immediately final and executory. (n)Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n)

RA 8369: FAMILY COURTS ACT (APPROVED OCTOBER 28, 1997)

Sec. 5. Jurisdiction of Family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

Madrinan v. Madrinan

FACTS

Habitually drunk spouses, CA took cognizance of the case

HELD

RA 8369 did not revoke the CA’s jurisdiction over habeas corpus cases in custody of minors rather, gave concurrent jurisdiction to SC and CA

Republic v. Narceda (2013)

FACTS

Republic tried to appeal Declaration of Presumptive Death

HELD

The hearing of a petition for the declaration of presumptive death is a summary proceeding under the Art 247

Art. 247. The judgment of the court shall be immediately final and executory

The remedy of a losing party in a summary proceeding is not an ordinary appeal, but a petition for certiorari