3. ROBIN FRANCIS RADLEY DUNCAN and MARIA LUCY CHRISTENSEN vs. COURT OF FIRST INSTANCE OF RIZAL (Branch X) PRESIDED OVER BY HON. JUDGE HERMINIO C. MARIANO, G.R. No. L-30576, February 10, 1976(re: construction of adoption laws; applicability of dura lex sed lex)

Facts:a) Sometime in May, 1967, a child, less than a week old (only 3 days old) 7 was given to petitioners Robin Francis Radley Duncan and his wife Maria Lucy Christensen, for them to adopt, by Atty. Corazon de Leon Velasquez. The child was later on baptized as Colin Berry Christensen Duncan with the aforementioned espouses appearing in the records of said baptism as the parents of said child; 8

b) Atty. Corazon de Leon Velasquez on the other hand, received the infant from the child's unwed mother who told the former never to reveal her (the mother's) identity because she wanted to get married and did not want to destroy her future. The mother instructed Atty. Corazon de Leon Velasquez to look for a suitable couple who will adopt the child. The mother did not provide for the maintenance and support of her child; 9

c) In the petition for adoption filed by petitioners in September, 1967, Atty. Corazon de Leon Velasquez, as the de facto guardian or loco parentis of the child subject of the adoption petition, gave the written consent required by law; 10

d) Learning, from the testimony of witness Atty. Corazon de Leon Velasquez that the natural mother of the child sought to be adopted was still alive, the court then pressed upon the witness to reveal the identity of said mother. The witness refused to divulge the same on the ground that there existed an attorney and client relationship between them. She had been instructed by her client not to reveal the latter's identity. She could not now violate such privilege communication. 

Petition was dismissed by the trial court;The principal reason given for the dismissal of the petition was that ... the consent given in this petition Exhibit "J" is improper and falls short of the express requirement of the law. 3

Rationalizing its action respondent Judge said:

Art. 340 (of the Civil Code) provides that the written consent of the following to the adoption shall be necessary:2. The guardian or person in charge of the person to be adopted.

"Under the law aforementioned, it will be noted that the law is couched in mandatory terms by the word SHALL be necessary, and it enumerates the persons who will give the consent to the adoption in the order as follows: parents, guardian, or the person in charge of the person to be adopted.

It is admitted by witness Velasquez that she knew the identity of the mother who gave her the child. This being the case, the proper person who is supposed to give the parental consent to the adoption should first be, in the order of preference, the parent or the mother herself. 4

Petition for review on certiorari of the decision of respondent court, dated June 27, 1968, dismissing petitioners' petition to adopt the minor, Colin Berry Christensen Duncan.

Issues:1.whether or not the person who gave the consent for adoption, which in this case is Atty. Corazon de Leon Velasquez, is the proper person required by law to give such consent.

2.whether or not Atty. Corazon de Leon Velasquez, the undisputed custodian of the abandoned waif may be considered as the guardian under Art. 340 or the person standing in loco parentis of said infant contemplated in Art. 349 of the Civil Code

Ruling: 1.) Going by the set of facts in this case, only one of two persons particularly described by law may be considered here as legally capable of giving the required written consent. They are:

Under Art. 340 of the Civil 'Code, the "parent, guardian or person in charge of the person to be adopted" while the other one is that mentioned in Section 3, Rule 99 of the Rules of Court, describing it as each of the known living parents "who has not abandoned such child." The father's consent here is out of the question as the child is illegitimate and unrecognized.

1

Since the person whose written consent to the adoption (Atty: Corazon de Leon Velasquez) is assailed by the trial court as being unauthorized and had consequently caused the rejection of the petition, this Tribunal will now look into her alleged authority or lack thereof to give the controverted consent.

Sometime in May of 1967, the child subject of this adoption petition, undisputedly declared as only three days old then, was turned over by its mother to witness Atty. Corazon de Leon Velasquez. The natural and unwedded mother, from that date on to the time of the adoption proceedings in court which started in mid- year of said 1967, and up to the present, has not bothered to inquire into the condition of the child, much less to contribute to the livelihood, maintenance and care of the same. In short, this parent is the antithesis of that described in the law as "known living parent who is not insane Or hopelessly intemperate or has not abandoned such child." We are convinced that in fact said mother had completely and absolutely abandoned her child. This Court has previously declared that abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental claims to the child. 12 Applying this legal yardstick, the unidentified mother of the child in this case can be declared, as she is hereby declared, as having abandoned her child with all legal consequences attached thereto.

Having declared that the child was an abandoned one by an unknown parent, there appears to be no more legal need to require the written consent of such parent of the child to the adoption.

2. It seems to Us that when the 3-day old baby was left to and placed in the hands of Atty. Corazon de Leon Velasquez, the helpless infant was in dire need of someone who could give it protection and sustain its delicate and fragile life. Atty. Velasquez was under no legal compulsion to accept the child and to extend to it the protection and care it badly needed. Since there had been no showing that the identity of the natural mother was made known to the trial court or to the herein petitioners, nor had said mother seen fit to present herself before the court despite the public notice given to the proceedings as required by law, there clearly appears only one person who could be considered as the guardian exercising patria potestas over such abandoned child. Since there was no guardian ad litem appointed by the court and the child not being in the custody of an orphan asylum, children's home or any benevolent society, there could not have been anyone other than Atty. Corazon de Leon Velasquez who could, with reason, be called the guardian of said infant.

“Dura lex sed lex”

The trial court in its decision had sought refuge in the ancient Roman legal maxim "Dura lex sed lex" to cleanse its hands of the hard and harsh decision it rendered. While this old adage generally finds apt application in many other legal cases, in adoption of children, however, this should be softened so as to apply the law with less severity and with compassion and humane understanding, for adoption is more for the benefit of unfortunate children, particularly those born out of wedlock, than for those born with a silver spoon in their mouths. All efforts or acts designed to provide homes, love, care and education for unfortunate children, who otherwise may grow from cynical street urchins to hardened criminal offenders and become serious social problems, should be given the widest attitude of sympathy, encouragement and assistance. The law is not, and should not be made, an instrument to impede the achievement of a salutary humane policy. As often as is legally and lawfully possible, their texts and intendments should be construed so as to give all the chances for human life to exist — with a modicum promise of a useful and constructive existence.If we are now to sustain the decision of the court below, this Tribunal will be doing a graver injustice to all concerned particularly to said spouses, and worse, it will be imposing a cruel sanction on this innocent child and on all other children who might be similarly situated. It is Our view that it is in consonance with the true spirit and purpose of the law, and with the policy of the State, to uphold, encourage and give life and meaning to the existence of family relations.

2

11. REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS and ZENAIDA C. BOBILES, G.R. No. 92326, January 24, 1992(re: jurisdictional requirements in petition for adoption)

Facts:Dissatisfied with the decision of CA on February 20, 1990 which affirmed in toto the decision of RTC of Legaspi City granting the petition of private respondent to adopt the minor Jason Condat, petitioner seeks the reversal thereof in the present petition for review on certiorari.

On February 2, 1988, Zenaida Corteza Bobiles filed a petition to adopt Jason Condat, then six (6) years old and who had been living with her family since he was four (4) months old, before the RTC of Legaspi City.

The court a quo, finding the petition to be sufficient in form and substance, issued an order dated February 15, 1988 setting the petition for hearing on March 28, 1988. The order was duly published, with copies thereof seasonably served on the Solicitor General, of Albay; Salvador Condat, father of the child; and the social worker assigned to the court. A copy of said order was posted on the bulletin board of the court and in the other places it had required for that purpose. Nobody appeared to oppose the petition.

Compliance with the jurisdictional requirements having been proved at the hearing, the testimonies of herein private respondent, together with that of her husband, Dioscoro Bobiles, and one Ma. Luz Salameno of the Department of Social Welfare and Development were taken and admitted in the proceedings.

On March 20, 1988, the trial court rendered judgment declaring the minor child, JASON CONDAT, be freed from all legal obligations of obedience and maintenance with respect to his natural parents, and be, to all intents and purposes, the child of the spouses Dioscoro and Zenaida Bobiles, and the surname of the child be changed to "Bobiles" which is the surname of the petitioner.

Furnish the Office of the Solicitor General, Manila, the Department of Social Welfare and Development, Regional Office, Region V, Legaspi City, and the Local Civil Registrar of Tiwi, Albay, with copies of this decision.

Issues:WON1. CA erred in ruling that the Family Code cannot be applied retroactively to the petition for adoption filed by Zenaida C. Bobiles; and

2 CA erred in affirming the trial court's decision which granted the petition to adopt Jason Condat in favor of spouses Bobiles.

Rulling:The petition for adoption was filed by private respondent Zenaida C. Bobiles on February 2, 1988, when the law applicable was Presidential Decree No. 603, the Child and Youth Welfare Code. Under said code, a petition for adoption may be filed by either of the spouses or by both of them. However, after the trial court rendered its decision and while the case was pending on appeal in the Court of Appeals, Executive Order No. 209, the Family Code, took effect on August 3, 1988. Under the said new law, joint adoption by husband and wife is mandatory.

On the foregoing consideration, petitioner contends that the petition for adoption should be dismissed outright for it was filed solely by private respondent without joining her husband, in violation of Article 185 of the Family Code which requires joint adoption by the spouses. It argues that the Family Code must be applied retroactively to the petition filed by Mrs. Bobiles, as the latter did not acquire a vested right to adopt Jason Condat by the mere filing of her petition for adoption. We are not persuaded.

Preliminarily, we observe that petitioner's theory implies that the non-inclusion of Dioscoro Bobiles as a co-petitioner is a jurisdictional defect, hence its prayer for an outright dismissal on that score. It could not be taking exception only on the ground of non-joinder since petitioner must be aware that non-joinder is not a ground for the dismissal of an action or a special proceeding. We further apprehend that this objection has been raised for the first time on appeal in respondent court. Nonetheless, we shall clarify petitioner's misgivings as postulated in its aforestated assignment of errors.

Article 246 of the Family Code provides for retroactive effect of appropriate relevant provisions thereof, subject to the qualification that such retrospective application will not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

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A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will of the holder. The term expresses the concept of present fixed interest which in right reason and natural justice should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny. Vested rights include not only legal or equitable title to the enforcement of a demand, but also an exemption from new obligations created after the right has vested.

Under the Child and Youth Welfare Code, private respondent had the right to file a petition for adoption by herself, without joining her husband therein. When Mrs. Bobiles filed her petition, she was exercising her explicit and unconditional right under said law. Upon her filing thereof, her right to file such petition alone and to have the same proceed to final adjudication, in accordance with the law in force at the time, was already vested and cannot be prejudiced or impaired by the enactment of a new law.

When private respondent filed her petition in Special Proceeding No. 1386, the trial court acquired jurisdiction thereover in accordance with the governing law. Jurisdiction being a matter of substantive law, the established rule is that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. We do not find in the present case such facts as would constitute it as an exception to the rule.

The first error assigned by petitioner warrants a review of applicable local and foreign jurisprudence. For that purpose, we start with the premise that Article 185 of the Family Code is remedial in nature. Procedural statutes are ordinarily accorded a retrospective construction in the sense that they may be applied to pending actions and proceedings, as well as to future actions. However, they will not be so applied as to defeat procedural steps completed before their enactment.

Procedural matters are governed by the law in force when they arise, and procedural statutes are generally retroactive in that they apply to pending proceedings and are not confined to those begun after their enactment although, with respect to such pending proceedings, they affect only procedural steps taken after their enactment.

The rule that a statutory change in matters of procedure will affect pending actions and proceedings, unless the language of the act excludes them from

its operation, is not so extensive that it may be used to validate or invalidate proceedings taken before it goes into effect, since procedure must be governed by the law regulating it at the time the question of procedure arises.

The jurisdictional, as distinguished from the purely procedural, aspect of a case is substantive in nature and is subject to a more stringent rule. A petition cannot be dismissed by reason of failure to comply with a law which was not yet in force and effect at the time. As long as the petition for adoption was sufficient in form and substance in accordance with the law in governance at the time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance.

On the second issue, petitioner argues that, even assuming that the Family Code should not apply retroactively, the Court of Appeals should have modified the trial court's decision by granting the adoption in favor of private respondent Zenaida C. Bobiles only, her husband not being a petitioner. We do not consider this as a tenable position and, accordingly, reject the same.

Although Dioscoro Bobiles was not named as one of the petitioners in the petition for adoption filed by his wife, his affidavit of consent, attached to the petition as Annex "B" and expressly made an integral part thereof, shows that he himself actually joined his wife in adopting the child. The pertinent parts of his written consent read as follows:

xxx xxx xxx

2. That my wife, ZENAIDA O. CORTEZA BOBILES and I mutually desire to adopt as our child, a boy named JASON CONDAT, still a minor being six (6) years old, likewise residing at 18 C. Imperial Street, Legaspi City, Albay, also in the Philippines;

3. That we are filing the corresponding Petition for Adoption of said minor child, JASON CONDAT, before the Juvenile and Domestic Relations court, now the Regional Trial Court in Legaspi City, Albay in the Philippines;

4

4. That I, Dioscoro C. Bobiles as the husband and father, am giving my lawful consent to this adoption of said minor child, JASON CONDAT;

5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and I have continuously reared and cared for this minor child, JASON CONDAT since birth;

6. That as a result thereof, my wife and I have developed a kind of maternal and paternal love for the boy as our very own, exercising therein the care, concern and diligence of a good father toward him;

7. That I am executing this document, an AFFIDAVIT OF CONSENT for whatever it is worth in the premises as to the matter of adoption of this minor child, JASON CONDAT, by my wife ZENAIDA O. CORTEZA BOBILES and by me, DIOSCORO C. BOBILES, in any court of justice; (Emphasis supplied.) 18

xxx xxx xxxThe foregoing declarations, and his subsequent confirmatory testimony in open court, are sufficient to make him a co-petitioner. Under the circumstances then obtaining, and by reason of his foreign residence, he must have yielded to the legal advice that an affidavit of consent on his part sufficed to make him a party to the petition. This is evident from the text of his affidavit. Punctiliousness in language and pedantry in the formal requirements should yield to and be eschewed in the higher considerations of substantial justice. The future of an innocent child must not be compromised by arbitrary insistence of rigid adherence to procedural rules on the form of pleadings.

We see no reason why the following doctrines in American law should not apply to this case and, for that matter, in our jurisdiction. It is a settled rule therein that adoption statutes, as well as matters of procedure leading up to adoption, should be liberally construed to carry out the beneficent purposes of the adoption institution and to protect the adopted child in the rights and privileges coming to it as a result of the adoption. The modern tendency of the courts is to hold that there need not be more than a substantial compliance with statutory requirements to sustain the validity of the proceeding; to refuse would be to indulge in such a narrow and technical construction of the statute as to defeat its intention and beneficial results or to

invalidate proceedings where every material requirement of the statute was complied with.

In support of this rule it is said that it is not the duty of the courts to bring the judicial microscope to bear upon the case in order that every slight defect may be enlarged and magnified so that a reason may be found for declaring invalid an act consummated years before, but rather to approach the case with the inclination to uphold such acts if it is found that there was a substantial compliance with the statute. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction.

In determining whether or not to set aside the decree of adoption the interests and welfare of the child are of primary and paramount consideration. The welfare of a child is of paramount consideration in proceedings involving its custody and the propriety of its adoption by another, and the courts to which the application for adoption is made is charged with the duty of protecting the child and its interests and, to bring those interests fully before it, it has authority to make rules to accomplish that end. Ordinarily, the approval of the adoption rests in the sound discretion of the court. This discretion should be exercised in accordance with the best interests of the child, as long as the natural rights of the parents over the child are not disregarded. In the absence of a showing of grave abuse, the exercise of this discretion by the approving official will not be disturbed.

In the case at bar, the rights concomitant to and conferred by the decree of adoption will be for the best interests of the child. His adoption is with the consent of his natural parents. The representative of the Department of Social Welfare and Development unqualifiedly recommended the approval of the petition for adoption 26 and the trial court dispensed with the trial custody for several commendatory reasons, especially since the child had been living with the adopting parents since infancy. Further, the said petition was with the sworn written consent of the children of the adopters.

The trial court and respondent court acted correctly in granting the petition for adoption and we find no reason to disturb the same. As found and aptly

5

stated by respondent court: "Given the facts and circumstances of the case and considered in the light of the foregoing doctrine, We are of the opinion and so hold that the decree of adoption issued by the court a quo would go a long way towards promoting the welfare of the child and the enhancement of his opportunities for a useful and happy life."

Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopted, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.

WHEREFORE, the instant petition is hereby DENIED.

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10. REPUBLIC OF THE PHILIPPINES vs. THE COURT OF APPEALS, JAIME B. CARANTO, and ZENAIDA P. CARANTO, G.R. No. 103695, March 15, 1996(re: jurisdictional requirements in petition for adoption)

Facts: On September 21 1988, spouses Jaime B. Caranto and Zenaida P. Caranto filed a petition for the adoption of Midael C. Mazon, then fifteen years old, who had been living with private respondent Jaime B. Caranto since he was seven years old. When private respondents were married on January 19, 1986, the minor Midael C. Mazon stayed with them under their care and custody. Private respondents prayed that judgment be rendered: declaring the child Michael C. Mazon the child of petitioners for all intents and purpose, dissolving the authority vested in the natural parents of the child; and that the surname of the child be legally changed to that of the petitioners and that the first name which was mistakenly registered as "MIDAEL" be corrected to "MICHAEL."

The case was heard during which private respondent Zenaida Caranto, Florentina Mazon (natural mother of the child), and the minor testified. Also presented was Carlina Perez, social worker of the Department of Social Welfare and Development, who endorsed the adoption of the minor, being of the opinion that the same was in the best interest of the child.

The Solicitor General opposed the petition insofar as it sought the correction of the name of the child from "Midael" to "Michael." He argued that although the correction sought concerned only a clerical and innocuous error, it could not be granted because the petition was basically for adoption, not the correction of an entry in the civil registry under Rule 108 of the Rules of Court. The Solicitor General appealed to the Court of Appeals reiterating his contention that the correction of names cannot be effected in the same proceeding for adoption. As additional ground for his appeal, he argued that the RTC did not acquire jurisdiction over the case for adoption because in the notice published in the newspaper, the name given was "Michael," instead of "Midael," which is the name of the minor given in his Certificate of Live Birth.

Issue:

Did the RTC acquire jurisdiction over the petition for adoption even if the notice by publication did not state the true name of the minor child?

Ruling:Yes. The RTC acquired jurisdiction over the petition for adoption. The present case is different. It involves an obvious clerical error in the name of the child sought to be adopted. In this case the correction involves merely the substitution of the letters "ch" for the letter "d," so that what appears as "Midael" as given name would read "Michael." Even the Solicitor General admits that the error is a plainly clerical one. Changing the name of the child from "Midael C. Mazon" to "Michael C. Mazon" cannot possibly cause any confusion, because both names "can be read and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig)." The purpose of the publication requirement is to give notice so that those who have any objection to the adoption can make their objection known. That purpose has been served by publication of notice in this case.

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15. REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS and MAXIMO WONG, G.R. No. 97906, May 21, 1992(re: name of the adopted child)

Facts: Private respondent, at two and a half years old was together with his sister was adopted by Spouses Wong, naturalized Filipinos. Private Respondent sought to have his Chinese surname changed to that of his natural Filipino parents upon reaching the age of twenty-two. He alleged that the use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life. The lower court’s decision granting the petition was affirmed by the appellate court.

Before the Supreme Court, the Solicitor General argued that the reversion of petitioner to his old name violates Arts.341and 365 of the Civil Code which require an adopted child to use the surname of the adopter, and would identify him with his parents by nature, thus giving the impression that he has severed his relationship with his adoptive parents.

Private Respondent contended that he did as the law required, I.e, upon adoption he used the surname of the adopter. However, being already emancipated, he can now decide what is best for and by himself. His adoptive mother consented to the petition for change of name and made it clear that it would not affect the legal adoption.

Issue:Whether an adopted child can change his surname from that of his adopter to that of his natural parents.

Ruling:

YES. While it is true that under Art. 365 of the Civil Code, an adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind that the change of the surname of the adopted child is more an incident rather than the object of adoption proceedings. The act of adoption fixes a status, which is, that of parent and child. The purpose of an adoption proceeding is to effect this new status of relationship between the child and his/her adoptive parents, the change of name which frequently accompanies adoption being more an incident than an object of the proceeding.

The welfare of the child is the primary consideration in the determination of an application for adoption. Under the circumstances, there could be no possible confusion as to the Private Respondent’s legal status or adoptive paternity and his successional right.

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PEREZ V CA (G.R.No. 118870, March 29, 1996)

Facts:

Ray Perez is a doctor practicing in Cebu while Nerissa, his wife, (petitioner) is a registered nurse.  After six miscarriages, two operations and a high-risk pregnancy, Nerissa finally gave birth to Ray Perez II in New York on July 20, 1992. Ray stayed with her in the U.S. twice and took care of her when she became pregnant.  Unlike his wife, however, he had only a tourist visa and was not employed.

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

When Nerissa came home a few days before Ray II’s first birthday, the couple was no longer on good terms.  They had quarrels. Nerissa did not want to live near her in-laws and rely solely on her husband’s meager income of P5,000.00. On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession.  He maintained that it would not be difficult to live here since they have their own home and a car. Despite mediation by the priest, the couple failed to reconcile.

Nerissa filed a petition to surrender the custody of their son to her.

The trial court issued an Order awarding custody to Nerissa citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Upon appeal by Ray Perez, the Court of Appeals reversed the trial court’s order and held that granting custody to the boy’s father would be for the child’s best interest and welfare.

Issue:

Who should have rightful custody of a child?

Held:

Nerissa. Aside from Article 213 of the Family Code, the Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides:

“SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are divorced or living separately and apart from each other, and the questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.” (Italics supplied)The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise.  The use of the word “shall” in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character.

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

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

9

legislative bodies, the best interests of the child shall be a primary consideration.

In the case, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Nerissa’s present work schedule is not so unmanageable as to deprive her of quality time with her son.  Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Also, delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids under the eagle eyes of the mother. 

Although Ray’s is a general practitioner, the records show that he maintains a clinic, works for several companies on retainer basis and teaches part-time. He cannot possibly give the love and care that a mother gives to his child.

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SAYSON vs. COURT OF APPEALSGR Nos. 89224-25January 23, 1992DOCTRINE:

Adopted child/ children has noright of representation

FACTS:

Eleno and Rafaela Sayson begot fivechildren, namely, Mauricio, Rosario, Basilisa,Remedios and Teodoro. Eleno died onNovember 10, 1952, and Rafaela on May15,1976. Teodoro, who had married IsabelBautista, died on March 23, 1972. His wifedied nine years later. Their properties wereleft in the possession of Delia, Edmundo, andDoribel, all surnamed Sayson, who claim tobe their children.Mauricio, Rosario, Basilisa, and Remedios,together with Juana C. Bautista, Isabel's mother, filed a complaint for partition and accounting of theintestate estate of Teodoro and Isabel Sayson. Delia, Edmundo and Doribel filed their own complaint,this time for the accounting and partition of the intestate estate of Eleno and Rafaela Sayson, againstthe couple's four surviving children.Both cases filed on the Lower Court were decided in favor Delia,

et al.

on the basis of practically thesame evidence. The Lower Court declared that Delia and Edmundo were the legally adopted childrenof Teodoro and Isabel Sayson by virtue of the decree of adoption. Doribel was their legitimatedaughter as evidenced by her birth certificate. Consequently, the three children were entitled to inheritfrom Eleno and Rafaela by right of representation.Both cases were appealed to the Court of Appeals, where they were consolidated. The appellatecourt affirmed that Delia,

et al.

are entitled to the intestate estate of spouses Teodoro and IsabelSayson. However, Delia and Edmundo are disqualified from inheriting from the estate of thedeceased spouses Eleno and Rafaela Sayson.

ISSUE:

W

/N CA is correct in holding that Delia and Edmundo are disqualified to inherit from theestate of the deceased spouses Eleno and Rafaela Sayson.

HELD:

A different conclusion must be reached in the case of Delia and Edmundo, to whom thegrandparents were total strangers.

While it is true that the adopted child shall be deemed to be alegitimate child and have the same right as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the adopting parents and theadopted child and does not extend to the blood relatives of either party.In sum, we agree with the lower courts that Delia and Edmundo as the adopted children and Doribelas the legitimate daughter of Teodoro Sayson and Isabel Bautista, are their exclusive heirs and areunder no obligation to share the estate of their parents with the petitioners. The Court of Appeals wascorrect, however, in holding that only Doribel has the right of representation in the inheritance of her grandparents' intestate estate, the other private respondents being only the adoptive children of thedeceased Teodoro.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. Nos. L-16185-86 May 31, 1962

TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO, all surnamed PEREZ Y TUASON,

PHILIPPINE NATIONAL BANK, Judicial Guardian, J. ANTONIO ARANETA, trustee-appellee,

vs.

ANTONIO M. PEREZ, judicial guardian-appellant.

Araneta and Araneta for trustee-appellee.

Alfonso Felix, Jr. for judicial guardian-appellant.

CONCEPCION, J.:

These are two (2) incidents of the trusteeship of the minors Benigno, Angela and Antonio, all surnamed Perez Y Tuason. The issue in G.R. No. L-16185 is whether or not the trustee, J. Antonio Araneta — hereinafter referred to as

the appellee — may be allowed to pay a sum of money to the law firm, Araneta & Araneta, of which he is a member, for services rendered to him, in his aforementioned capacity as such trustee, in several judicial proceedings, whereas G.R. No. L-16186 concerns the question whether the purchase of certain shares of stock nude by the appellee for the benefit of the trusteeship merits judicial approval. Both questions were decided by the Court of First Instance of Rizal (Quezon City Branch) in the affirmative. Hence, this appeal by Antonio M. Perez — hereinafter referred to as the appellant — as guardian of the person of said minors.

With respect to G.R. No. L-16185, it appears that the law firm Araneta & Araneta, through its assistant, Atty. Francisco T. Papa, had rendered services, as counsel for the appellee, in connection with the following:

1. The approval of his accounts for January to March, 1956, which were objected to by the appellant. Said objection was, on October 19, 1956, overruled by the lower court, the action of which was affirmed by this Court in G.R. No. L-11788, on May 16, 1958, on appeal taken by appellant.

2. The appellee's accounts for April to June, 1957; which were approved by the lower court on July 13, 1957, despite appellant's objection thereto. Although appellant appealed to the Supreme Court, he, subsequently, withdrew the appeal.

3. In 1958, appellant instituted CA-G.R. No. 22810-R of the Court of Appeals for a writ of certiorari and mandamus against the appellee and the lower court, the latter having sustained the action of the appellee in withholding certain sums from the shares of the minors aforementioned in the net income of the trust estate for July to September, 1957, in view of the

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appellant's refusal to reimburse to said estate identical sums received in the form of allowances for the period from April to June, 1957, in excess of the shares of said minors in the net income for that period. After appropriate proceedings, the Court of Appeals rendered a decision on June 25, 1958, dismissing said petition.

The lower court authorized the payment of P5,500.00 for the services thus rendered by Araneta & Araneta, which appellant assails upon the ground that, pursuant to Section 7 of Rule 86 of the Rules of Court:

When the executor or administrator is an attorney he shall not charge against the estate any professional fees for legal services rendered by him.

that the services above referred to inured to the benefit, not of the trust estate, but of the trustee; that the amount of the award is excessive; and that the lower court should have required the introduction of evidence on the extent of the services rendered by the aforementioned law firm before making said award.

Appellant's pretense is untenable. Said Section 7 of Rule 86 refers only to "executors or administrators" of the estate of deceased persons, and does not necessarily apply to trustees. It is true that some functions of the former bear a close analogy with those of the latter. Moreover, a trustee, like, an executor or administrator, holds an office of trust, particularly when, as in the case of appellee herein, the trustee acts as such under judicial authority. Hence, generally, the policy set forth in said Section 7 of Rule 86 — basically sound and wise as it is — should be applicable to trustees. The duties of executors or administrators are, however, fixed and/or limited by law, whereas those of trustee of an express trust — like that which we have under consideration —

are, usually, governed by the intention of the trustor or of the parties, if established by contract (Art. 1441, Civil Code of the Philippines). Besides, the duties of trustees may cover a much wider range than those of executors or administrators of the estate of deceased persons. Again the application of Section 7 of Rule 86 to all trusteeships without distinction may dissuade deserving persons from accepting the position of trustee and consequently have a deterrent effect upon the establishment of trusts, at a time when a sizeable part of the burden to undertake important and even essential activities in advanced and/or developing communities or states, particularly in the field of education, science and social welfare, is borne by foundations or other similar organizations based upon the principles of trust. We believe it, therefore, to be the better policy to acknowledge the authority of courts of justice to exercise a sound judgment in determining, in the light of the peculiar circumstances obtaining in each case, whether or not a trustee shall be allowed to pay attorney's fees and charge the same against the trust estate, independently of his compensation as a trustee.

In the case at bar, considering that the appellee was merely defending himself in the proceedings that required the services of counsel; that in each case the stand taken by the appellee was upheld by the court; that the will creating the trust and designating the appellee as trustee explicitly grants him the right to collect for his services such reasonable fees; that, in view of the nature of the relations between the trustor and the trustee, on the one hand, and the trustor and appellant on the other, there can be little doubt but that the trustor would have sanctioned the payment of the attorney's fees involved in this incident; and that it may have been more costly for the trust estate to engage the services of a law firm other than that of Araneta & Araneta, we are not prepared to hold that the lower court has erred in authorizing the payment of said attorney's fees by herein appellee.

For the rest, it is well settled that "a trustee may be indemnified out of the trust estate for his expenses in rendering and proving his accounts and for

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costs and counsel fees" in connection therewith (54 Am. Jur. 415-416), apart from the fact that the nature of the professional services in question appeared in the records before the lower court and that the amount of P5,500 fixed by the same as compensation for such services is not excessive.

Referring now to G.R. No. L-16186, it appears that from July to September, 1958, the appellee had bought for the trust estate, through a broker (Pedro Nolasco da Silva & Co.), a total of 118 common shares of stock of the Philippine-American Drug Co. at P100 each, and that, upon submission of appellee's accounts for said period, appellant objected to the items of expenses relative to the acquisition of said common shares, upon the ground that the investment therein is "unwise in that (the operation of) said company has not, to our knowledge, proved profitable and unlawful in that it is actually an act of self-dealing between the trustee and the beneficiaries of the trust", because the former (appellee) is, also, a stockholder of said company. After the introduction of the evidence of both parties, the lower court overruled the objection and approved said accounts.

It is not disputed that appellee holds, in his individual capacity, 199 out of 30,000 common shares of stock of the Philippine-American Drug Co., whereas his children own 270 out of 5,000 preferred shares of stock of the same enterprise. As a consequence, the interest of appellees and his children in said company is not such as to warrant the charge that the purchase of 118 common stocks for the trust estate amounts to self-dealing by the appellee with himself. What is more, said purchase by the trustee may be considered as an indication that he had displayed in the management of the trust estate the same interest he had in the protection of his own property.

Upon the other hand, it has, also, been established that the book value of each of said 118 common shares of stock, purchased by the trustee at P100 each, is P202.80; that in 1954 the Philippine-American Drug Co. had paid a cash

dividend of 6%, side from declaring a 33-1/3% stock dividend for its common shares; and that 6-½ % and 4% cash dividends were paid in 1955 and 1957, respectively. Furthermore, the statement of accounts of the company for the years 1954, 1955, 1956 and 1957, satisfied the lower court that the enterprise "is financially stable and sound". Under the circumstances, we cannot say that the investment in question is unwise.

Appellant's allegation to the effect that shares of stock of the San Miguel Brewery pay higher returns, even if true, does not establish his pretense. Whether an investment is good or not does not depend upon the general, abstract possibility of better investments. Again, one factor that should be taken into account is the degree of influence that the investor may have upon the management of the enterprise concerned, which appellee admittedly has in the Philippine-American Drug Co., but which it is not claimed he wields in the San Miguel Brewery Co.

WHEREFORE, the orders appealed from are hereby affirmed, with costs against the appellant. It is so ordered.

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1. ISABELITA S. LAHOM vs. JOSE MELVIN SIBULO (previously referred to as "DR. MELVIN S. LAHOM"), G.R. No. 143989, July 14, 2003(re: development of Philippine adoption laws; nature of adoption proceedings; exception to rule on the non-applicability of dura lex sed lex)

Facts:A childless couple adopted the wife's nephew and brought him up as their own. The trial court granted the petition for adoption, and ordered the Civil Registrar to change the name Jose Melvin Sibulo to Jose Melvin Lahom.

Years later, Mrs. Lahom commenced a petition to rescind the decree of adoption, in which she averred, that, despite her pleas and that of her husband, their adopted son refused to use their surname Lahom and continue to use Sibulo in all his dealing and activities and that respondent was indifferent towards petitioner and would only come to see her once a year.

Prior to the institution of the case, RA No. 8552, the Domestic Adoption Act, went into effect. The new statute deleted from the law the right of adopters to rescind a decree of adoption. Section 19 of Article VI of R.A. No. 8552 now reads: "Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code."

The trial court dismissed the petition.

Issue:Whether or not the subject adoption may still be revoked or rescinded by an adopter after the effectivity of R.A. No. 8552 and whether or not the adopter’s action had prescribed.

RulingJurisdiction of the court is determined by the statute in force at the time of the commencement of the action. The controversy should be resolved in the light of the law governing at the time the petition was filed. In this case, it was months after the effectivity of RA 8552 that Lahom filed an action to revoke the decree of adoption granted in 1975. By then, the new law had already abrogated and repealed the right of the adopter under the Civil Code and the family Code to rescind a decree of adoption. So the action for

rescission of the adoption decree, having been initiated by Lahom after RA 8552 had come into force, could no longer be pursued.

Besides, even before the passage of R A8552, an action to set aside the adoption is subject to the five year bar rule under Rule 100 of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection. Rights are considered vested when the right to the enjoyment is a present interest, absolute, unconditional and perfect or fixed and irrefutable. The concept of a "vested right" is a consequence of the constitutional guarantee of due process that expresses a present fixed interest which in right reason and natural justice is protected against arbitrary state action. While adoption has often been referred to in the context of a "right", it is not naturally innate or fundamental but rather a right merely created by statute. It is more of a privilege that is governed by the state's determination on what it may deem to be for the best interest and welfare of the child. Matters relating to adoption, including the withdrawal of the right of the adopter to nullify the adoption decree, are subject to State regulation. Concomitantly, a right of action given by a statute may be taken away at any time before it has been exercised.

However, an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child, like denying him his legitime, and by will and testament, may expressly exclude him from having a share in the disposable portion of his estate.

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