SECOND DIVISION
G.R. No. 235498, July 30, 2018
RENALYN A. MASBATE AND SPOUSES RENATO MASBATE AND MARLYN
MASBATE, Petitioners, v. RICKY JAMES RELUCIO, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated January
12, 2017 and the Omnibus Resolution3 dated October 3, 2017 of the Court of
Appeals (CA) in CA-G.R. SP No. 144406, which set aside the Orders dated
December 4, 20154 and January 7, 20165 of the Regional Trial Court of Legazpi
City, Albay, Branch 8 (RTC) in Special Proceeding (SP) No. FC-15-239, directed
the remand of the case to the RTC for trial, and granted respondent Ricky James
Relucio (Ricky James) "temporary custody" once a month for a period not
exceeding twenty-four (24) hours over the minor, Queenie Angel M. Relucio
(Queenie), his illegitimate daughter with petitioner Renalyn A. Masbate
(Renalyn), on top of visitation rights fixed at two (2) days per week.
The Facts
Queenie was born on May 3, 2012 to Renalyn and Ricky James, who had been
living together with Renalyn's parents without the benefit of marriage. Three (3)
years later, or in April 2015, the relationship ended. Renalyn went to Manila,
supposedly leaving Queenie behind in the care and custody of her father, Ricky
James.6
Ricky James alleged that on November 7, 2015, Spouses Renata and Marlyn
Masbate (Renalyn's parents) took Queenie from the school where he had
enrolled her. When asked to give Queenie back, Renalyn's parents refused and
instead showed a copy of a Special Power of Attorney7 (SPA) executed by
Renalyn granting full parental rights, authority, and custody over Queenie to
them. Consequently, Ricky James filed a petition for habeas corpus and child
custody8 docketed as SP No. FC-15-239 before the RTC (petition a quo).9
A hearing was conducted on December 3, 2015, where Renalyn brought Queenie
and expressed the desire for her daughter to remain in her custody.10
The RTC Ruling
In an Order11 dated December 4, 2015, the RTC ruled that the custody of three
(3)-year-old Queenie rightfully belongs to Renalyn, citing the second paragraph
of Article 213 of the Family Code, which states that "[n]o child under seven [(7)]
years of age shall be separated from the mother x x x." The RTC likewise found
that, while Renalyn went to Manila to study dentistry and left Queenie in the
custody of her parents, her intention was to bring Queenie to Manila at a later
time. Thus, in the fallo of said Order, the RTC declared that it will "NOT GIVE
FURTHER DUE COURSE" to the petition a quo.12
Dissatisfied, Ricky James moved for reconsideration,13 lamenting the
"[extraordinary] speed in the issuance of the x x x award of custody over the
child to [petitioners]."14 He claimed that the hearing conducted on December 3,
2015 was not the kind of hearing that was procedurally contemplated under A.M.
No. 03-04-04-SC,15 otherwise known as the "Rule on Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of Minors," because the RTC merely
propounded random questions without placing the witnesses on the stand to
testify under oath. Moreover, he was allegedly deprived of his right to due
process when the RTC refused to give further due course to the petition a quo.16
The motion was denied in an Order17 dated January 7, 2016, wherein the RTC
emphasized that Queenie was born out of wedlock, for which reason she shall be
under the parental authority of her mother, Renalyn, pursuant to Article 17618 of
the Family Code. In addition, the RTC faulted Ricky James for failing to present
credible evidence in court to demonstrate that Renalyn is unfit to take custody of
their daughter.19
Aggrieved, Ricky James filed an appeal20 before the CA, imputing error upon the
RTC: (a) in not conducting a full blown trial and not receiving evidence; (b) in
granting sole custody to Renalyn without giving paramount consideration to the
best interests of the child; and (c) in not granting him shared custody and/or
visitation rights.21 Ricky James insisted that the tender-age presumption in
Article 213 of the Family Code is rebuttable by evidence of the mother's neglect,
abandonment, and unemployment, among other factors, and claimed that
Renalyn abandoned Queenie when she went to live in Manila and failed to seek
employment to support her daughter.22
For their part, Renalyn and her parents (petitioners) moved for the outright
dismissal of the appeal on the ground that no appeal can be had against an order
denying a motion for reconsideration. In addition, petitioners argued that being
the illegitimate father of Queenie, Ricky James has absolutely no right of custody
over her, and that Renalyn's act of entrusting the care of Queenie to her parents
was not a renunciation of parental authority but only a temporary separation
necessitated by her need to adjust to her studies, which she undertook to
improve her and Queenie's life.23
On September 2, 2016, the case was referred to mediation, but the parties were
unable to arrive at a settlement.24
The CA Ruling
In a Decision25 dated January 12, 2017, the CA set aside the assailed RTC Orders
and remanded the case to the lower court for determination of who should
exercise custody over Queenie.26 The CA found that the RTC hastily dismissed
the petition a quo upon Queenie's production in court, when the objective of the
case was to establish the allegation that Renalyn had been neglecting Queenie,
which was a question of fact that must be resolved by trial.27 Citing Section 18 of
A.M. No. 03-04-04-SC, which states that, "[a]fter trial, the court shall render
judgment awarding the custody of the minor to the proper party considering the
best interests of the minor," the CA declared that the dismissal by the RTC of the
petition a quo was not supported by the Rules.28
Nonetheless, the CA affirmed the RTC Orders granting custody to Renalyn
"pending the outcome of the case," stating that only Queenie's mother, Renalyn,
has parental authority over her as she is an illegitimate child. Further, the CA
declared that the RTC must thresh out Renalyn's capacity to raise her daughter,
which shall, in tum, determine whether or not the tender-age presumption must
be upheld, or whether Queenie's well-being is better served with her remaining
in the custody of her maternal grandparents in the exercise of their substitute
parental authority or with Ricky James, who was Queenie's actual custodian
before the controversy.29
Finally, the CA granted Ricky James visitation rights of two (2) days a week, with
provision for additional visitation days that may be permitted by Renalyn.30
Petitioners filed a motion for reconsideration,31 while Ricky James filed a motion
for clarification32 asking that he be allowed to pick up Queenie from petitioners'
residence on a Friday afternoon and to return the child on a Sunday
afternoon.33 In their Comment,34 petitioners argued that the arrangement
proposed by Ricky James is not within the scope of his visitation rights, but that
he may, through Renalyn's written consent, take Queenie home on certain family
occasions.35
In its Omnibus Resolution36 dated October 3, 2017, the CA denied petitioners'
motion for reconsideration for lack of merit, insisting on its application of the
case of Bagtas v. Santos,37 which held that a trial is still necessary to determine
the issue of custody despite the production of the child.38 On the other hand, the
CA ruled in favor of Ricky James' motion for clarification, granting the latter what
it calls a " limited and temporary custody" that will allow him to take Queenie out
once a month, or on the first Saturday of each month, for a period not exceeding
twenty-four (24) hours, but which shall not reduce his visitation days fixed at
two (2) days per week.39 In so holding, the appellate court cited "humane and
practical considerations"40 and argued that it is in Queenie's best interest to have
an exclusive time with Ricky James.41
Undaunted, petitioners filed the instant petition for review
on certiorari, maintaining that the RTC correctly dismissed the petition a
quo after the hearing on December 3, 2015 on the grounds that: (a) the
purported custodial right that Ricky James seeks to enforce in filing his petition
has no legal basis; (b) the petition a quo does not comply with the requisites
for habeas corpus petitions involving custody of minors; and (c) there are no
more factual issues to be resolved as it had already been admitted by Renalyn
during the hearing that she goes to Manila to study but that she comes home
every week for Queenie and whenever there is a problem.42
Ricky James filed a Comment/Opposition43 as well as an Urgent Omnibus
Motion44 to dismiss the petition and for immediate execution pending appeal of
the Omnibus Resolution dated October 3, 2017, claiming that the instant petition
was filed out of time and that it was erroneous for petitioners to state that the
last day of filing fell on November 4, 2017, a Saturday, which compelled them to
file their petition on November 6, 2017, a Monday. By his calculation, the fifteen
(15)-day reglementary period, which commenced to run upon petitioners' receipt
on October 19, 2017 of the Omnibus Resolution dated October 3, 2017, ended
on November 3, 2017, a Friday, and not on November 4, 2017.45
The Issue Before the Court
The main issue for the Court's resolution is whether or not the CA correctly
remanded the case a quo for determination of who should exercise custody over
Queenie.
The Court's Ruling
The petition is partially meritorious.
I.
At the outset, it must be stressed that while petitioners may have erroneously
determined the expiration of the reglementary period for filing the instant
petition, which resulted in the same being filed a day late on November 6, 2017,
the Court finds it proper to overlook this procedural lapse given the compelling
merit of the petition in the interest of substantial justice.
The Court has declared that rules on the perfection of appeals, particularly on
the period of filing thereof, must occasionally yield to the loftier ends of
substantial justice and equity. In the same manner that the CA took cognizance
of respondent's appeal from the denial of his motion for reconsideration of the
RTC Order dated December 4, 2015,46 which is technically prohibited under the
Rules of Court, so shall this Court hold that the ends of justice would be served
better when cases are determined, not on mere technicality or some procedural
nicety, but on the merits – after all the parties are given full opportunity to
ventilate their causes and defenses. Lest it be forgotten, dismissal of appeals
purely on technical grounds is frowned upon. The rules of procedure ought not to
be applied in a very rigid, technical sense, for they have been adopted to help
secure – not override – substantial justice.47
In this relation, it may not be amiss to point out that the fundamental policy of
the State, as embodied in the Constitution in promoting and protecting the
welfare of children, shall not be disregarded by the courts by mere technicality in
resolving disputes which involve the family and the youth.48 The State is
mandated to provide protection to those of tender years. Through its laws, it
safeguards them from everyone, even their own parents, to the end that their
eventual development as responsible citizens and members of society shall not
be impeded, distracted or impaired by family acrimony.49
Accordingly, the Court shall delve into the substantive arguments propounded in
this case.
II.
It is settled that habeas corpus may be resorted to in cases where "the rightful
custody of any person is withheld from the person entitled thereto."50 In
custody cases involving minors, the writ of habeas corpus is prosecuted for the
purpose of determining the right of custody over a child. The grant of the writ
depends on the concurrence of the following requisites: (1) that the petitioner
has the right of custody over the minor; (2) that the rightful custody of the
minor is being withheld from the petitioner by the respondents; and (3) that it is
to the best interest of the minor concerned to be in the custody of petitioner and
not that of the respondents.51
"The right of custody accorded to parents springs from the exercise of parental
authority. Parental authority or patria potestas in Roman Law is the juridical
institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latter's needs. It is a mass
of rights and obligations which the law grants to parents for the purpose of the
children's physical preservation and development, as well as the cultivation of
their intellect and the education of their heart and senses. As regards parental
authority, 'there is no power, but a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust for the welfare of the minor.'"52
As a general rule, the father and the mother shall jointly exercise parental
authority over the persons of their common children.53 However, insofar as
illegitimate children are concerned, Article 17654 of the Family Code states
that illegitimate children shall be under the parental authority of their
mother. Accordingly, mothers (such as Renalyn) are entitled to the sole parental
authority of their illegitimate children (such as Queenie), notwithstanding the
father's recognition of the child. In the exercise of that authority, mothers are
consequently entitled to keep their illegitimate children in their company, and
the Court will not deprive them of custody, absent any imperative cause showing
the mother's unfitness to exercise such authority and care.55
In addition, Article 213 of the same Code provides for the so-called tender-age
presumption, stating that "[n]o child under seven [(7)] years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise." The rationale behind the rule was explained by the Code Commission
in this wise:
The general rule is recommended in order to avoid many a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for "compelling reasons" for the good of the child;
those cases must indeed be rare, if the mother's heart is not to be unduly hurt. x
x x56
According to jurisprudence, the following instances may constitute "compelling
reasons" to wrest away custody from a mother over her child although under
seven (7) years of age: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child, insanity or
affliction with a communicable disease.57
As the records show, the CA resolved to remand the case to the RTC,
ratiocinating that there is a need to establish whether or not Renalyn has been
neglecting Queenie,58 for which reason, a trial is indispensable for reception of
evidence relative to the preservation or overturning of the tender-age
presumption under Article 213 of the Family Code.59 In opposition, petitioners
contend that the second paragraph of Article 213 of the Family Code would not
even apply in this case (so as to determine Renalyn's unfitness as a mother)
because the said provision only applies to a situation where the parents are
married to each other.60 As basis, petitioners rely on the Court's ruling in Pablo-
Gualberto v. Gualberto V61 (Pablo-Gualberto), the pertinent portion of which
reads:
In like manner, the word "shall" in Article 213 of the Family Code and Section 6
of Rule 99 of the Rules of Court has been held to connote a mandatory
character. Article 213 and Rule 99 similarly contemplate a situation in
which the parents of the minor are married to each other, but are
separated by virtue of either a decree of legal separation or a de
facto separation. x x x62
For easy reference, Article 213 of the Family Code and Section 6, Rule 99 of the
Rules of Court, which were cited in Pablo-Gualberto, are quoted hereunder in
full:
Article 213 of the Family Code
Article 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise.
Section 6, Rule 99 of the Rules of Court
Section 6. Proceedings as to child whose parents are separated. Appeal. – When
husband and wife are divorced or living separately and apart from each other,
and the question to the care, custody, and control of a child or children of their
marriage is brought before a Court of First Instance by petition or as an incident
to any other proceeding, the court, upon hearing the testimony as may be
pertinent, shall award the care, custody, and control of each such child as will be
for its best interest, permitting the child to choose which parent it prefers to live
with if it be over ten years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If, upon such hearing, it appears that both parents are
improper persons to have the care, custody, and control of the child, the court
may either designate the paternal or maternal grandparent of the child, or his
oldest brother or sister, or some reputable and discreet person to take charge of
such child, or commit it to any suitable asylum, children's home, or benevolent
society. The court may in conformity with the provisions of the Civil Code order
either or both parents to support or help support said child, irrespective of who
may be its custodian, and may make any order that is just and reasonable
permitting the parent who is deprived of its care and custody to visit the child or
have temporary custody thereof. Either parent may appeal from an order made
in accordance with the provisions of this section. No child under seven years of
age shall be separated from its mother, unless the court finds there are
compelling reasons therefor.
Notably, after a careful reading of Pablo-Gualberto, it has been determined that
the aforequoted pronouncement therein is based on a previous child custody
case, namely, Briones v. Miguel63(Briones), wherein the Court pertinently held as
follows:
However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court.
This provision contemplates a situation in which the parents of the minor are
married to each other but are separated either by virtue of a decree of legal
separation or because they are living separately de facto. In the present case, it
has been established that petitioner and Respondent Loreta were never married.
Hence, that portion of the CA Decision allowing the child to choose which parent
to live with is deleted, but without disregarding the obligation of petitioner to
support the child.64
For guidance, the relevant issue in Briones for which the stated excerpt was
made is actually the application of Section 6, Rule 99 of the Rules of Court
insofar as it permits the child over ten (10) years of age to choose which
parent he prefers to live with. As the Court's ruling in Briones was prefaced:
"[t]he Petition has no merit. However, the assailed Decision should be modified
in regard to its erroneous application of Section 6 of Rule 99 of the Rules of
Court."65 Accordingly, since the statement in Pablo-Gualberto invoked by
petitioners, i.e., that "Article 213 and Rule 99 similarly contemplate a situation
in which the parents of the minor are married to each other x x x," was based
on Briones, then that same statement must be understood according to its
proper context – that is, the issue pertaining to the right of a child to choose
which parent he prefers to live with. The reason as to why this statement should
be understood in said manner is actually not difficult to discern: the choice of a
child over seven (7) years of age (first paragraph of Article 213 of the Family
Code) and over ten (10) years of age (Rule 99 of the Rules of Court) shall be
considered in custody disputes only between married parents because they
are, pursuant to Article 211 of the Family Code, accorded joint parental authority
over the persons of their common children. On the other hand, this choice is not
available to an illegitimate child, much more one of tender age such as Queenie
(second paragraph of Article 213 of the Family Code), because sole parental
authority is given only to the mother, unless she is shown to be unfit or
unsuitable (Article 176 of the Family Code). Thus, since the issue in this case is
the application of the exception to the tender-age presumption under the second
paragraph of Article 213 of the Family Code, and not the option given to the child
under the first paragraph to choose which parent to live with, petitioners'
reliance on Pablo-Gualberto is grossly misplaced.
In addition, it ought to be pointed out that the second paragraph of Article 213
of the Family Code, which was the basis of the CA's directive to remand the case,
does not even distinguish between legitimate and illegitimate children – and
hence, does not factor in whether or not the parents are married – in declaring
that "[n]o child under seven [(7)] years of age shall be separated from the
mother unless the court finds compelling reasons to order otherwise." "Ubi lex
non distinguit nec nos distinguere debemos. When the law makes no distinction,
we (this Court) also ought not to recognize any distinction."66 As such,
petitioners' theory that Article 213 of the Family Code is herein inapplicable –
and thus, negates the need for the ordered remand – is not only premised on an
erroneous reading of jurisprudence, but is also one that is fundamentally off-
tangent with the law itself.
III.
The Court cannot also subscribe to petitioners' contention that even if there are
compelling reasons to separate Queenie from her mother, Renalyn, pursuant to
the second paragraph of Article 213 of the Family Code, Ricky James would still
not acquire custody over their daughter because there is no provision of law
granting custody rights to an illegitimate father.67
In the event that Renalyn is found unfit or unsuitable to care for her daughter,
Article 214 of the Family Code mandates that substitute parental
authority shall be exercised by the surviving grandparent. However, the
same Code further provides in Article 216 that "[i]n default of parents or
judicially appointed guardian, the following persons shall exercise substitute
parental authority over the child in the order indicated:"
Article 216. x x x
(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.
The same order of preference with respect to substitute parental authority is
reiterated in Section 13 of A.M. No. 03-04-04-SC, the "Rule on Custody of Minors
and Writ of Habeas Corpus in Relation to Custody of Minors," to wit:
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.
It was not disputed that Ricky James was in actual physical custody of
Queenie when Renalyn left for Manila to pursue her studies until the instant
controversy took place. As such, Ricky James had already assumed obligations
and enjoyed privileges of a custodial character, giving him a cause of action to
file a case of habeas corpus to regain custody of Queenie as her actual
custodian.
Indeed, it may be argued that Article 176 of the Family Code has effectively
disqualified the father of an illegitimate child from exercising substitute parental
authority under Article 216 even if he were the actual custodian of the child
under the premise that no one is allowed to do indirectly what he is prohibited to
do directly. However, the Court cannot adopt a rigid view, without running afoul
to the overarching consideration in custody cases, which is the best interest of
the minor. Even way back, Article 363 of the Civil Code provides that in all
questions relating to the care, custody, education and property of the children,
the latter's welfare is paramount.68 Under present rules, A.M. No. 03-04-04-SC
explicitly states that "[i]n awarding custody, the court shall consider the best
interests of the minor and shall give paramount consideration to [her] 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 [her] physical, psychological
and emotional development. It also means the least detrimental available
alternative for safeguarding the growth and development of the minor."69
In light of the foregoing, the Court finds that Queenie's best interest demands
that a proper trial be conducted to determine if she had, indeed, been neglected
and abandoned by her mother, rendering the latter unfit to exercise parental
authority over her, and in the event that Renalyn is found unsuitable, whether it
is in Queenie's best interest that she be in the custody of her father rather than
her grandparents upon whom the law accords a far superior right to exercise
substitute parental authority. In the case of Bagtas v. Santos,70 which was a tug-
of-war between the maternal grandparents of the illegitimate minor child and the
actual custodians of the latter, the Court faulted the trial court for hastily
dismissing the petition for habeas corpus and awarding the custody of the minor
to the grandparents without conducting any trial. The import of such decision is
that the preference accorded by Article 216 of the Family Code does not
automatically attach to the grandparents, and is conditioned upon the
determination of their fitness to take care of their grandchild. In ruling as it did,
the Court ratiocinated that the child's welfare being the most important
consideration, it is not bound by any legal right of a person over the
child. Reiterating its pronouncement in the early case of Sombong v. CA,71 the
Court held that:
[I]n passing on the writ in a child custody case, the court deals with a matter of
an equitable nature. Not bound by any mere legal right of parent or guardian,
the court gives his or her claim to the custody of the child due weight as a claim
founded on human nature and considered generally equitable and just Therefore,
these cases are decided, not on the legal right of the petitioner to be relieved
from unlawful imprisonment or detention, as in the case of adults, but on the
court's view of the best interests of those whose welfare requires that they be in
custody of one person or another. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its welfare at the time
appears to require. In short, the child's welfare is the supreme consideration.
Considering that the child's welfare is an all-important factor in custody cases,
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. In the same vein, the Family Code authorizes the
courts to, if the welfare of the child so demands, deprive the parents concerned
of parental authority over the child or adopt such measures as may be proper
under the circumstances.72
The Court cannot close its eyes to the sad reality that not all fathers, especially
those who have sired children out of wedlock, have risen to the full height of a
parent's responsibility towards his offspring. Yet, here is a father of an
illegitimate child who is very much willing to take on the whole gamut of
parenting. He, thus, deserves, at the very least, to be given his day in court to
prove that he is entitled to regain custody of his daughter. As such, the CA's
order to remand the case is proper.
IV.
While the appellate court correctly remanded the case for trial, the Court,
however, holds that it erred in granting Ricky James temporary custody for a
limited period of twenty-four (24) consecutive hours once every month, in
addition to visitation rights, invoking "humane and practical
considerations,"73 which were based solely on Ricky James' allegations.
It should be stressed that Section 15 of A.M. No. 03-04-04-SC provides for
temporary visitation rights, not temporary custody, as follows:
Section 15. Temporary visitation rights. – The court shall provide in its order
awarding provisional custody appropriate visitation rights to the non-custodial
parent or parents, unless the court finds said parent or parents unfit or
disqualified.
The temporary custodian shall give the court and non-custodial parent or parents
at least five days' notice of any plan to change the residence of the minor or take
him out of his residence for more than three days provided it does not prejudice
the visitation rights of the non-custodial parent or parents.
It is only after trial, when the court renders its judgment awarding the custody of
the minor to the proper party, that the court may likewise issue "any order that
is just and reasonable permitting the parent who is deprived of the care and
custody of the minor to visit or have temporary custody," pursuant to Section 18
of A.M. No. 03-04-04-SC, to wit:
Section 18. Judgment. – After trial, the court shall render judgment awarding
the custody of the minor to the proper party considering the best interests of the
minor.
If it appears that both parties are unfit to have the care and custody of the
minor, the court may designate either the paternal or maternal grandparent of
the minor, or his oldest brother or sister, or any reputable person to take charge
of such minor, or to commit him to any suitable home for children.
In its judgment, the court may order either or both parents to give an amount
necessary for the support, maintenance and education of the minor, irrespective
of who may be its custodian. In determining the amount of support, the court
may consider the following factors: (1) the financial resources of the custodial
and non-custodial parent and those of the minor; (2) the physical and emotional
health, special needs, and aptitude of the minor; (3) the standard of living the
minor has been accustomed to; and (4) the non-monetary contributions that the
parents would make toward the care and well-being of the minor.
The court may also issue any order that is just and reasonable
permitting the parent who is deprived of the care and custody of the
minor to visit or have temporary custody. (Emphasis supplied)
By granting temporary albeit limited custody ahead of trial, the appellate court
overturned the tender-age presumption with nothing but Ricky James' bare
allegations, to which the Court cannot give its imprimatur. As earlier intimated,
the issue surrounding Renalyn's fitness as a mother must be properly threshed
out in the trial court before she can be denied custody, even for the briefest of
periods, over Queenie.
In view of the disposition in Silva and Briones and the rules quoted above, the
Court can only uphold Ricky James' visitation rights, which shall be limited to two
(2) days per week, without prejudice to Renalyn allowing him additional days.
However, consistent with the aforesaid cases, as well as the more recent case
of Grande v. Antonio,74 Ricky James may take Queenie out only upon the written
consent of Renalyn. Contrary to the posturing75 of the appellate court, the
requirement for the consent of the mother is consistent with the regime of sole
maternal custody under the second paragraph of Article 213 of the Family Code
with respect to children under seven (7) years of age, which may be overcome
only by compelling evidence of the mother's unfitness.76 Until and unless Ricky
James is able to substantiate his allegations, he can only claim visitation rights
over his daughter.
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated January
12, 2017 and the Omnibus Resolution dated October 3, 2017 of the Court of
Appeals in CA-G.R. SP No. 144406 are hereby AFFIRMED with
the MODIFICATION deleting the grant of limited and temporary custody for
lack of legal and factual basis. The grant of visitation rights of two (2) days per
week shall be maintained. Respondent Ricky James Relucio may take his
daughter, Queenie Angel M. Relucio, out but only with the written consent of
petitioner Renalyn A. Masbate in accordance with this Decision.
The Regional Trial Court of Legazpi City, Albay, Branch 8 is DIRECTED to
immediately proceed with hearing Special Proceeding No. FC-15-239 upon notice
of this Decision.
SO ORDERED.
Carpio, (Chairperson), Peralta, Caguioa, and Reyes, Jr., JJ., concur.
Endnotes:
1
Rollo, pp. 3-18.
2
Id. at 21-35. Penned by Associate Justice Marlene Gonzales-Sison with
Associate Justices Ramon A. Cruz and Henri Jean Paul B. lnting concurring.
3
Id. at 42-54.
4
Id. at 55. Penned by Pairing Judge Pedro R. Soriao.
5
Id. at 60.
6
See id. at 22.
7
Not attached to the rollo.
8
Not attached to the rollo.
9
See rollo, pp. 22-23.
10
See id. at 55.
11
Id.
12
See id.
13
See motion for reconsideration dated December 10, 2015; id. at 56-59.
14
Id. at 56.
15
Entitled "RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT
OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS," effective on May
15, 2003.
16
See rollo, p. 57.
17
Id. at 60.
18
Article 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. x x x.
19
See rollo, p. 60.
20
Not attached to the rollo.
21
See rollo, pp. 24-25.
22
Id. at 25.
23
Id.
24
See id. at 25-26.
25
Id. at 21-35.
26
Id. at 34.
27
See id. at 28.
28
See id. at 29-30.
29
See id. at 31-33.
30
Id. at 34.
31
Dated February 21, 2017. Id. at 36-40.
32
Dated February 20, 2017. Id. at 61-64.
33
See id. at 62.
34
Not attached to the rollo.
35
Rollo, p. 43.
36
Id. at 42-54.
37
621 Phil. 94 (2009).
38
See rollo, pp. 51-53.
39
Id. at 53.
40
Id. at 46.
41
See id. at 47.
42
See id. at 10.
43
Dated December 11, 2017. Id. at 66-78.
44
Id. at 80-84.
45
Id. at 66-67.
46
See id. at 26.
47
Remulla v. Manlongat, 484 Phil. 832, 836 (2004).
48
Suarez v. CA, 271 Phil. 188, 195 (1991).
49
Concepcion v. CA, 505 Phil. 529, 546 (2005).
50
Sombong v. CA, 322 Phil. 737, 749 (1996).
51
Id. at 751.
52
Tonog v. CA, 427 Phil. 1, 7-8 (2002), citing Santos, Sr. v. CA, 312 Phil. 482,
487-488 (1995).
53
See Article 211 of the Family Code, which reads:
Article 211. The father and the mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement, the father's
decision shall prevail, unless there is a judicial order to the contrary.
54
Article 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. x x x The legitime of each illegitimate child shall consist of one-
half of the legitime of a legitimate child.
55
See Briones v. Miguel, 483 Phil. 483, 492-493 (2004).
56
Tonog v. CA, supra note 52, at 8.
57
Pablo-Gualberto v. Gualberto V, 500 Phil. 226, 250 (2005).
58
See rollo, p. 28.
59
See id. at 33.
60
See id. at 10-11.
61
Supra note 57.
62
Id. at 248-249.
63
Supra note 55. "Briones v. Miguel, G.R. No. 156343, October 18, 2004, p. 13."
is the citation of the stated pronouncement as per footnote 44 of Pablo-
Gualberto v. Gualberto V (supra note 57, at 249).
64
Id. at 494.
65
Briones v. Miguel, supra note 55, at 489.
66
Yu v. Samson-Tatad, 657 Phil. 431, 439 (2011).
67
See rollo, pp. 10-11.
68
Luna v. Intermediate Appellate Court, 221 Phil. 400, 408 (1985).
69
See Section 14 of A.M. No. 03-04-04-SC.
70
Supra note 37.
71
Supra note 50.
72
Id. at 750-751.
73
Rollo, pp. 46-48.
74
727 Phil. 448 (2014).
75
See rollo, pp. 47-48.
76
See Pablo-Gualberto v. Gualberto V, supra note 57, at 250
