Based on the foregoing, it is affirmative that the law favors the grandmother.
Evelyn has
the due authority to become the lawful guardian of the child pursuant to Articles 214 and 216 of
the Family Code, Section 5 and Section 6 of the Rule on Guardianship of Minors, Section 13 and
Section 14 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
of Minors, Article 19 of The Child and Youth Welfare Code (P.D. No. 603), which speak clearly
of situations when grandparents can exercise substitute parental authority over their
grandchildren.
Article 214 provides:
“Art. 214. In case of death, absence or unsuitability of the 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.”
Correlation thereto, Article 214 provides that grandparents can have access to de jure
guardianship by virtue of substitute parental authority. As the law provides, “In case of death,
absence or unsuitability of the 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.”
Hence, the custodial rights of Evelyn over Mary are clearly supported verba legis of
Article 216 and 214 of the Family Code that must be abided since it is what the law provides
Article 216 provides:
“Art. 216. In default of parents or a judicially appointed guardian,
the following person 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 of age,
unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age,
unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the
property of the child becomes necessary, the same order of
preference shall be observed.”
In Ortiz v. Del Villar, wherein Del Villar, the uncle, did not have legal rights over the
custody of the child. In the case at bar, the mother who died single left her three minor adulterine
children in the custody of her sister, Consortia Ortiz. However, the adulterine father took these
children away from Ortiz. Ortiz filed a petition for habeas corpus but was subsequently denied
by the court. It is because habeas corpus is only granted to persons who is deprived of liberty, or
is wrongfully prevented from exercising the legal custody, to which he is entitled, over another
person. The court held she lacks property authority to file the petition since as the aunt of the
minors, she is not by virtue of the relationship alone, entitled to legal custody of the children.
The case at bar provides similar facts wherein the mother of the minor child left the
custody of the latter to her brother. However, the dispute aroused when the Grandmother asserted
her legal authority to gain custody of the child. Notwithstanding the dispute, jurisprudence
already set forth that aunt’s or uncles are not entitled to legal custody of the minor children by
virtue of relationship alone. Furthermore, the Court of the former case asserts that even though
the children were born from an adulterine father, the later still has legal obligations to discharge
towards the minors. Similarly, the estranged Grandmother also has obligations to discharge to
her granddaughter by virtue of substitute parental authority and hence shall be granted the same.
Section 5 of the Rule on Guardianship of Minors provides:
“Sec. 5. Qualifications of guardians. – In appointing a guardian,
the court shall consider the guardian’s:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian for
the full period of the guardianship;
(f) lack of conflict of interest with the minor;
(g) ability to manage the property of the minor.”
Section 6 of the Rule on Guardianship of Minors provides:
“Sec. 6. Who may be appointed guardian of the person or
property, or both, of a minor. – In default of parents or a court-
appointed guardian, the court may appoint a guardian of the
person or property, or both, of a minor, observing as far as
practicable, the following order of preference:
(a) the surviving grandparent and In case several grandparents
survive, the court shall select any of them taking Into account all
relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one years
of age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one years of age,
unless unfit or disqualified;
(d) any other person, who in the sound discretion of the court,
would serve the best interests of the minor.”
In the case at bar, the child, Mary, currently lives in an unclean and unwholesome
condition with his uncle. Moreover, his uncle has no stable career to support the needs and
necessities of Mary. There is also an instance wherein, his Uncle was involved in an assult (?).
Such acts could endanger Mary, if she continues to live with his uncle. In accordance with the
qualifications of guardianship stated in Section 5 of A.M. No. 03-02-05-SC, the grandmother is
capable of giving the care to Mary, which she is entitled. With the given circumstances, the
grandmother is suitable to be the substitute parent of Mary. All these circumstances
notwithstanding, it is axiomatic that the paramount criterion is the welfare and well-being of the
child.
In addition, the order of preference provided for in Section 6 of A.M. No. 03-02-05-SC is
mandatory, when there is no special circumstance that would require the exercise of substitute
parental authority different from that provided for in said rule. That in default of parents, the
surviving grandparent and in case several grandparents survive, the court shall select any of them
taking into account all relevant considerations. In this case, the uncle is only next to the
grandparents in the order of preference.
Section 13 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
of Minors provides:
“Section 13. Provisional order awarding custody. - After an
answer has been filed or after expiration of the period to file it, the
court may issue a provisional order awarding custody of the
minor. As far as practicable, the following order of preference
shall be observed in the award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant considerations,
especially the choice of the minor over seven years of age and of
sufficient discernment, unless the parent chosen is unfit;
(c) The grandparent, or if there are several grandparents, the
grandparent chosen by the minor over seven years of age and of
sufficient discernment, unless the grandparent chosen is unfit or
disqualified;
(d) The eldest brother or sister over twenty-one years of age,
unless he or she is unfit or disqualified;
(e) The actual custodian of the minor over twenty-one years of
age, unless the former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable to
provide proper care and guidance for the minor.”
In Salientes v. Abanilla, Abanilla asserted that the writ of habeas corpus is available
against any person who restrains the minor's right to see his parent and vice versa. Habeas
corpus may be resorted to in cases where rightful custody is withheld from a person entitled
thereto. In the present case, private respondent's cause of action is the deprivation of his right to
see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to him.
The Supreme Court in the said case ruled that habeas corpus may be resorted to in cases where
rightful custody is withheld from a person entitled thereto. Thus, the Supreme Court held:
“In a petition for habeas corpus, the child's welfare is the supreme
consideration .The Child and Youth Welfare Code unequivocally
provides that in all questions regarding the care and custody,
among others, of the child, his welfare shall be the paramount
consideration.
Again, it bears stressing that the order did not grant custody of the
minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why private respondent is
prevented from seeing his child.”
Section 14 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
of Minors provides:
“Section 14. Factors to consider in determining custody. - In
awarding custody, the court shall consider the best interests of the
minor and shall give paramount consideration to his material and
moral welfare. The best interests of the minor refer to the totality
of the circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the minor
encouraging to his physical, psychological and emotional
development. It also means the least detrimental available
alternative for safeguarding the growth and development of the
minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have bound
themselves to comply with respecting the rights of the minor to
maintain direct contact with the non custodial parent on a regular
basis, except when there is an existing threat or danger of
physical, mental, sexual or emotional violence which endangers
the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and
loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking
custody or who has had any filial relationship with the minor,
including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated
substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological
and educational environment for the holistic development and
growth of the minor; and
(i) The preference of the minor over seven years of age and of
sufficient discernment, unless the parent chosen is unfit.”
Under Section 20 on the Rules on Custody of Children, the grandmother may also file a
petition for writ of habeas corpus to gain access to her grandchild. A writ of habeas corpus is a
remedy available in our Rules of Court to relieve a person from unlawful restraint. Essentially, it
is a writ of inquiry to test the right under which a person is detained. In relation to custody battles
for children, a writ of habeas corpus is sought by parents whose custody to their children are
being deprived from them by another parent, relative, or stranger having custody of their child.
Accordingly, her grandchild was being hidden from her. Therefore, he can file a petition
for habeas corpus in relation to custody before the Family Court having jurisdiction of the place
where the uncle may be hidden. If Evelyn has no clue where his child may be found, she can file
her petition in the Court of Appeals.
Article 19 of The Child and Youth Welfare Code provides:
“Art. 19. Absence or Death of Parents. - Grandparents and in
their default, the oldest brother or sister who is at least eighteen
years of age, or the relative who has actual custody of the child,
shall exercise parental authority in case of absence or death of
both parents, unless a guardian has been appointed in accordance
with the succeeding provision.”
Substitute parental authority vested on grandparents as the first on the list having rightful
authority to be a legal guardian subsists when the parents are already dead, absent or unsuitable.
It is evidently shown that these circumstances are present in the case at bar. By virtue of what
Article 216 and 214 of the Family Code provides and the ruling, by Doctrine of Stare Decisis,
laid down by Ortiz v Villar, it is of no doubt, that Evelyn has legal authority to take custody of
Mary.
From the stipulation of facts of the parties, as well as the evidence adduced during the
trial, it is clear from the above cited law that between the uncle and the grandmother, it is the
latter which have the parental authority over Mary. The law, pursuant to the rules on
guardianship of minors, gives express preference to the child’s grandparents over other relatives
as the designated persons who shall exercise substitute parental authority over an orphan.
Therefore, Evelyn, the grandmother is entitled to be the substitute parents to Mary.
