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PERSONS AND FAMILY RELATIONS Review – Second Exam Coverage| 1st Semester S.Y.

2018-2019
From the Lectures of Atty. Lydia Galas 1
4-Manresa | Ateneo de Davao University College of Law

August 3, 2018 From 2017 Prebar

TITLE V - THE FAMILY  Requirement is mandatory, so that “if it is


Chapter 1. The Family as an Institution shown that no such efforts were in fact made,
it must be dismissed.”
We go now to the family as an institution. For purposes of Art.  Rule is introduced because it is difficult to
151, you have to memorize Art 150. imagine a sadder and more tragic spectacle
than litigation between members of the same
Article 149. The family, being the foundation of the family.
nation, is a basic social institution which public policy However, with the very recent decision of the Court in
cherishes and protects. Consequently, family relations are ROMERO, it is no longer jurisdictional. If it is not questioned
governed by law and no custom, practice or agreement by the respondent in the answer, then it is deemed a waiver
destructive of the family shall be recognized or given of the right. It is no longer jurisdictional.
effect. (216a, 218a)
In the case of HIYAS SAVINGS BANK, Hiyas claimed that the
Article 150. Family relations include those: case should be dismissed because the wife was one of those
1) Between husband and wife; named as one of the respondents but the Court said that the
2) Between parents and children; inclusion of a third person removes the requirement of
3) Among brothers and sisters, whether of the full alleging earnest efforts. It should only be between parties
or half-blood. (217a) mentioned in Art. 150.

Situations where allegation of earnest effort is not


What do family relations include?
required.
It must be between husband and wife and the relationship
1. A suit between a woman and her sister’s husband
must be a legal relationship meaning the parties are legally
because the husband is a third person. The basis of
married meaning not that of a common law relationship. In
which is Honteveros vs. RTC.
number 2 and 3 enumerations, the relationship may be
2. Collateral relatives who are not brothers and
legitimate or illegitimate.
sisters in the case of Mendez.
3. Included in the suit is a stranger not a member of
Art. 151. No suit between members of the same family the same family in the case of Hiyas Savings.
shall prosper unless it should appear from the verified 4. In special proceedings because the term suit would
complaint or petition that earnest efforts toward a merely imply civil action.
compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact made, Exclusion to the requirement on earnest efforts
the same case must be dismissed. (From 2017 PREBAR):
1) Common law relationships;
This rules shall not apply to cases which may not be the 2) Sisters-in-law (hence, also brothers-in-law);
subject of compromise under the Civil Code. (222a) 3) Between collateral relatives who are not
brothers and sisters (Mendez vs. Eugenio);
What are those that cannot be a subject of compromise? 4) Suit between a woman against her sister and
 The civil status of persons the latter’s husband, the inclusion of the
 future support husband is not within the “family relations”
 validity of marriage provided for by law (Hontiveros vs. RTC);
 grounds for legal separation 5) If included in the suit is a stranger not of the
 jurisdiction of courts same family as the interest of such stranger
 future legitime. may differ from the interest of the member of
the same family ex. A co-owner; and
In the cases of O’LACO v. CO CHOCHO CHIT, the court held 6) Special proceedings- the term “suit” clearly
that there was earnest efforts when the sister testified that implies only civil actions (Manalo vs. CA)
she made arrangements with the other petitioners and thus
it was cured. These are the exceptions to the rule that even if the parties
are related and falling under Art. 150, the requirement of
O’Laco vs. Co Cho Chit and CA 220 S 656 alleging earnest efforts does not apply.
From 2017 Prebar
Likewise, the latest ruling of the Court in ROMERO VS.
It is well settled that the attempt to compromise as well SINGSON that it ceases to be a jurisdictional requirement. It
as the inability to succeed is a condition precedent to is on the part of the respondent to raise the absence of the
the filing of a suit between members of the same family. allegation. Otherwise, that is deemed a waiver.
Hence, the defect in the complaint is assailable at any
stage of the proceedings, even on appeal, for lack of
cause of action. Chapter 2. The Family Home

In GUERRERO VS. FERNANDO, the absence of the allegation Art. 152. The family home, constituted jointly by the
in the complaint should warrant already the dismissal of the husband and the wife or by an unmarried head of a family,
petition because it used to be jurisdictional. is the dwelling house where they and their family reside,
and the land on which it is situated. (223a)
Guerrero vs. RTC Br. XVI, Bello, Jr. and Hernando
January 10, 1994

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Art. 153. The family home is deemed constituted on a family home may be sold, alienated, donated, assigned or
house and lot from the time it is occupied as a family encumbered by the owner or owners thereof with the
residence. From the time of its constitution and so long as written consent of the person constituting the same, the
any of its beneficiaries actually resides therein, the family latter’s spouse, and a majority of the beneficiaries of legal
home continues to be such and is exempt from execution, age. In case of conflict, the court shall decide. --- Without
forced sale or attachment except as hereinafter provided that, that shall be void.
and to the extent of the value allowed by law. (223a)
So here, what happened was that the beneficiaries now
Can there be a family home constituted when the marriage questioned the sale, and the RTC declared that there is no
is void under Art. 36? sale, rather it is just one of an equitable mortgage, and
That is answered by the Court in the case of VALDEZ AND ordered the Bell spouses to pay Eugolio the amount of 1M.
BUENAVENTURA. Yes, there can. However, when there is But not to be secured by the family home because it was
already liquidation, or partition of the properties acquired mortgaged without the consent of the beneficiaries. So, it
during the cohabitation, the family home should be included becomes an unsecured loan.
in the distribution of the properties which is not true when
the marriage is annulled or the parties are legally separated Now when the loan obligation remained unpaid, the
because the conjugal dwelling shall be awarded to the spouse creditor wanted now to execute the family home
to whom the majority of the children have choose to remain contending that the value had already exceeded the
under Arts. 102 and 129. amount or value mentioned in Art. 157. And the proof that
they presented that the value exceeded is the deed of sale
For those marriages with a property regime that can be that was declared subsequently by the court as void where
distributed and liquidated under 147 or 148, it shall be the consideration thereof is 1M.
included in the liquidation because according to the Court in
thecase of Valdez, the provisions of 102 and 129 do not apply SC: That cannot be used as basis for purposes of the
to marriages that are declared void under Art. 36. But take issuance of the writ of execution, because the deed of sale
note that during the marriage, a void marriage under Art. 36 was declared void. So if it was void, it is as if there was no
is valid without the declaration of the Court because all the effect whatsoever from the very beginning. So, it cannot be
essential and formal requisites are present. used as basis to have the family home be levied upon
(because there was non-payment of the obligation).
When is it constituted?
Under the Civil Code, Family home must either be judicially And moreover, the SC said that in order for the family
or extrajudicially constituted. Under the Family Code, as long home to be the subject of execution under Art. 160, the
as it is occupied as a family residence, then it becomes a following must be proven:
Family home and so long as its beneficiaries actually resides
therein, family home continues to be such and is accorded “To warrant the execution sale of respondents’ family
with the exmeption from execution for sale or attachment home under Article 160, petitioners needed to
unless the value exceeded that of what is provided for under establish these facts:
Art. 157. 1. there was an increase in its actual value;
2. the increase resulted from voluntary
Art. 157. The actual value of the family home shall not improvements on the property introduced
exceed, at the time of its constitution, the amount of the by the persons constituting the family
three hundred thousand pesos in urban areas, and two home, its owners or any of its beneficiaries;
hundred thousand pesos in rural areas, or such amounts and
as may hereafter be fixed by law. 3. increased actual value exceeded the
maximum allowed under Article 157.”
In any event, if the value of the currency changes after the
adoption of this Code, the value most favorable for the Otherwise, if the improvement merely resulted to
constitution of a family home shall be the basis of involuntary improvement – like when you build your
evaluation. house in, let us say, Maa in the 80’s, Maa before was very
grassy. So the value of the property there is way below xxx
For purposes of this Article, urban areas are deemed to tapos later the roads have been cemented, the light posts
include chartered cities and municipalities whose annual were placed in the area, and therefore it increased the
income at least equals that legally required for chartered value of the properties. Can that be considered as increase
cities. All others are deemed to be rural areas. (231a) in value of the family home as to warrant execution? No,
because it is INVOLUNTARY increase in the value of the
family home.
There is also a pronouncement of the Court in the case of
FIEL(?) that it should be in accordance with the value of the
And in relation to that is the case of Bell. Because
peso by reason of the fluctuation of its value. Who determines
according to the court, if for instance, parks or
it? Then we have to ask the Central Bank.
playgrounds will be introduced within the vicinity, that
will definitely increase the value. So that is not the
ENRICO S. EULOGIO v. PATERNO C. BELL, SR. improvement that is considered under the FC. It should be
GR No. 186322, Jul 08, 2015 improvement voluntarily made by the person constituting
(From Batacan Notes) the family home or the beneficiaries thereof to warrant
the execution of the family home.
Ma’am G: The Spouses Bell sold the property, a residential
house and lot, to Eulogio for 1M. But when the heirs or the *Additional from the FT: The exemption of the family
beneficiaries of the family home learned of the home from execution, forced sale or attachment under the
sale/alientation, - because when we go to Art. 158, the

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From the Lectures of Atty. Lydia Galas 3
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Family Code is limited to 300,000 in urban areas and the property may be occupied by the “beneficiaries”
200,000 in rural areas, unless those maximum values are enumerated in Article 154 of the Family Code, which
adjusted by law. […] Any subsequent improvement or include the in-laws where the family home is constituted
enlargement of the family home by the persons jointly by the husband and the wife. But the law definitely
constituting it, its owners, or any of its beneficiaries will excludes maids and overseers. They are not the
still be exempt from execution, forced sale or attachment beneficiaries contemplated by the Code.
provided the following conditions obtain:
a. the actual value of the property at the time of its To be a beneficiary of the family home, 3 requisites must
constitution has been determined to fall below concur:
the statutory limit; and 1. they must be among the relationships
b. the improvement or enlargement does not enumerated in Art. 154 of the Family Code;
result in an increase in its value exceeding the 2. they live in the family home; and
statutory limit. 3. they are dependent for legal support upon the
head of the family.
Otherwise, the family home can be the subject of a forced
sale, and any amount above the statutory limit is Moreover, Art. 159 of the FC provides that the family home
applicable to the obligations under Articles 155 and 160. shall continue despite the death of one or both spouses or
of the unmarried head of the family for a period of 10
Who are the beneficiaries? years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds
Art. 154. The beneficiaries of a family home are: compelling reasons therefor. This rule shall apply
1) The husband and wife, or an unmarried person regardless of whoever owns the property or constituted
who is the head of a family; and the family home.
2) Their parents, ascendants, descendants,
brothers and sisters, whether the relationship Thus, may Marcelino Lorenzo IV, minor son of respondent
be legitimate or illegitimate, who are living in be considered as a beneficiary under Article 154 of the FC?
the family home and who depend upon the head
of the family for legal support. (226a) As to the 1st requisite, the term “descendants”
contemplates all descendants of the person or persons
The Family home must be devoted entirely as a family who constituted the family home without distinction;
residence. There is no family home if some portion of it is hence, it must necessarily include the grandchildren and
devoted for some business undertaking. The law requires the great grandchildren of the spouses who constituted
that the entirety of the house must be used as residence of the the family home. Thus, Marcelino III’s minor son, who is a
family to be considered as a family home. grandchild of Marcelino satisfies the 1st requisite.

Take note that in Art 154, No. 2 must be dependent upon the 2nd requisite: minor beneficiaries must be actually living
head of the family for legal support because of the ruling of in the family home to avail of the benefits derived from
the Court in the case of PATRICIO. There are 3 requisites Article 159. Marcelino Lorenzo IV has been living in the
before one must be considered as a beneficiary of the family family since 1994, or within 10 years from the death of the
home. decedent, hence, he satisfies the second requisite.

PERLA PATRICIO vs. MARCELINO DARIO III However, as to the 3rd requisite, Marcelino Lorenzo IV
507 S 438 cannot demand support from his paternal grandmother if
(From Batacan Notes) he has parents who are capable of supporting him. The
liability for legal support falls primarily on Marcelino
Marcelino died intestate and survived by his wife Perla Lorenzo IV’s parents, especially his father, herein private
and 2 sons, Marcelino Marc and Marcelino III. Among the respondent who is the head of his immediate family. And
properties he left was a parcel of land with a residential only in default of his parents is the obligation imposed on
house and a pre-school building constructed thereon the grandparents.
located at Oxford St., Cubao, Quezon City. After the heirs
extra-judicially settled the estate, Perla and Marcelino Marcelino Lorenzo IV is dependent on legal support not
Marc advised Marcelino III that they intend to partition from his grandmother, but from his father. Thus despite,
the property and terminate the co-ownership but the residing in the family home and his being a descendant of
latter refused on the ground that a minor beneficiary who Marcelino Dario, Marcelino Lorenzo IV cannot be
is Marcelino III’s 12-year old son and a grandson of the considered as beneficiary contemplated under Article 154
decedent still resides in said home. He contended that as because he did not fulfill the 3rd requisite of being
long as the minor is living in the family home, the same dependent on his grandmother for legal support.
continues as such until the beneficiary comes of age. That
despite the expiration of 10 years from the date of death Aside from those mentioned in No. 2, what about in-laws?
of Marcelino in 1987 i.e. even after July 1997, the subject Can they be included as beneficiary?
property continues to be considered as the family home It would depend on who constituted the family home. If it is
considering that his minor son, who is a beneficiary of said the husband and the wife, then in-laws are considered
family home, still resides in the premises. beneficiaries.

SC: The law explicitly provides that occupancy of the There must be actual occupancy.
family home either by the owner thereof or by “any of its
beneficiaries” must be actual. Actual occupancy, however,
need not be by the owner of the house specifically. Rather,

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From the Lectures of Atty. Lydia Galas 4
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What happens if the children are school bound are no the money judgment arising therefrom was
longer staying in the family home? Does that mean that rendered by the appellate court on January 29,
the family home ceases to be one? 1988. Both preceded the effectivity of the
No, because the determination whether it continues to be a Family Code on August 3, 1988
family home or not is the intention of the children to return
or animus revertendi. For as long as there is that intention of Art. 156. The family home must be part of the properties
returning, it does not cease to be a family home even if at of the absolute community or the conjugal partnership, or
certain times of the year, the family home is not occupied by of the exclusive properties of either spouse with the
the beneficiaries. latter's consent. It may also be constituted by an
unmarried head of a family on his or her own property.
What are those that will not exempt that family home from
attachment or execution? Nevertheless, property that is the subject of a conditional
Article 155. sale on installments where ownership is reserved by the
vendor only to guarantee payment of the purchase price
Art. 155. The family home shall be exempt from may be constituted as a family home. (227a, 228a)
execution, forced sale or attachment except:
1) For nonpayment of taxes; In the case of CABANG VS BASAY, the home was built on a lot
2) For debts incurred prior to the constitution of not owned by the person constituting it and it was already
the family home; decided by the Supreme Court but they prevented the Sheriff
3) For debts secured by mortgages on the from implementing the writ of execution claiming that it
premises before or after such constitution; and cannot be subject of execution because it is a family home.
4) For debts due to laborers, mechanics,
architects, builders, materialmen and others The Supreme Court said that there is already a decision that
who have rendered service or furnished the land is not owned by them and as such, there can’t be
material for the construction of the building. family home.
(243a)
CABANG vs. BASAY
In the case of MODEQUILLO VS. BREVA, there are 2 issues 582 SCRA 172 (March 20, 2009)
here. Can the family home be exempt from execution? Does (From 2017 PREBAR)
the Article 162 also apply retroactively to family homes
existing prior to the Family Code? As to the first, the Court Cabang mistakenly occupied the lot owned by Basay
held that it has already become final and executory prior to that was the subject matter of a case that was earlier
the effectivity of the Family Code. Art 162 finds also no decided up to the Supreme Court. The writ of execution
application because it is only given prospective application in was opposed on the ground that the houses of
the sense that all those residences that were established prior petitioners’ family home was still subsisting and being
to the effectivity of the Family Code but is occupied as a family such, it is not subject to execution.
home is now considered as a family home and is accorded
the exemptions. In the case of Taneo, there was a constitution SC: The family home must be established on
made by the debtor but the registration of such constitution a. the absolute community, or
was made on 1966 while the obligation became final and b. the conjugal partnership, or
executory on 1964 thus no longer covered by the exemption. c. the exclusive property of either spouse with
The SC said that the registration is merely as an afterthought the consent of the other.
for him to escape his obligation. Furthermore, SC found out
that it was constructed on a lot owned by a third person other It cannot be established on a property held in co-
than the individuals who constituted the family home. So, it ownership with third persons. However, it can be
was not really exempt from execution. The law requires that established partly on the community property, or
not only the house but as well as the lot where it was built conjugal partnership and partly on the exclusive
should be owned by the spouses who constituted the same as property of either spouse with the consent of the
a family home. owner-spouse. In the case at bar, the stark and
immutable fact is that the property on which their
Modequillo vs. Breva (94) alleged family home stands is owned by respondents
185 s 766 and the question of ownership had been long laid to rest
(From 2017 PREBAR) with the finality of the appellate court’s judgment. Thus,
Cabang’s continued stay on the subject land is only by
 Family home is deemed constituted on a house mere tolerance of respondents.
and lot from the time it is occupied as a family
residence. No need to constitute the same In EULOGIO VS BELL SR., it involves a home occupied by the
judicially or extrajudicially. family of Bell. Then they obtained a loan from the Eulogio
 Article 162 simply means that all existing family spouses in the amount of 1M. They executed not a contract of
residences at the time of the effectivity of the mortgage but rather a contract of sale where the
Family Code are considered family homes and consideration is 1M. Such contract is without the consent of
are prospectively entitled to the benefits the beneficiaries who are of legal age as state under Art 158.
accorded to a family home under the Family The beneficiaries now filed this petition before the Court
Code. It does not state that the provisions of seeking nullity of that contract.
Chapter 2, Title V have a retroactive effect.
 The debt or liability which was the basis of the The SC said that the contract is void and the contract is
judgment arose or was incurred at the time of merely an equitable mortgage and it ceases to be a secured
the vehicular accident on March 16, 1976 and mortgage because the security is a family home and it was

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mortgaged without the consent of the beneficiaries of legal son decided to sell the property but Dario opposed the sale
age. It becomes an unsecured mortgage and there was no claiming that there is still a minor beneficiary. His son who is
payment of the 1M loan. So the creditors now seek the at that time is only nine years old.
execution of the family home claiming the value thereof
exceeded what is provided for under Art. 157 and the basis of Art. 158. The family home may be sold, alienated,
which is the 1M consideration in that deed of sale. The SC said donated, assigned or encumbered by the owner or owners
that the valuation is without basis because it is in fact already thereof with the written consent of the person
declared void and if it is declared void, it has no effect constituting the same, the latter's spouse, and a majority
whatsoever. And in order for a family home pursuant to Art. of the beneficiaries of legal age. In case of conflict, the
160 in relation to Art. 157, to be subject to execution or court shall decide. (235a)
attachment, there are certain requisites that must be
complied with. One is there is an increase in the actual value.
Art. 159. The family home shall continue despite the
The increase resulted from the voluntary improvement
death of one or both spouses or of the unmarried head of
introduced by the person constituting the family home, the
the family for a period of ten years or for as long as there
owners or its beneficiaries and the actual value exceeded the
is a minor beneficiary, and the heirs cannot partition the
maximum amount under Art. 157.
same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the
Art. 160. When a creditor whose claims is not among property or constituted the family home.
those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
This was cited by Dario. SC said that in order for a family
family home is actually worth more than the maximum
home not to be subject of execution upon the death of the
amount fixed in Article 157, he may apply to the court
person constituting it, there are three requisites:
which rendered the judgment for an order directing the
1. They must be among the relationships enumerated
sale of the property under execution. The court shall so
in Art. 154 of the Family Code;
order if it finds that the actual value of the family home
2. They live in the family home; and
exceeds the maximum amount allowed by law as of the
3. They are dependent for legal support upon the
time of its constitution. If the increased actual value
head of the family.
exceeds the maximum allowed in Article 157 and results
from subsequent voluntary improvements introduced by
The first requisite is complied with since the child of Dario III
the person or persons constituting the family home, by
is one of those mentioned in Art. 154. The second requisite is
the owner or owners of the property, or by any of the
also complied. However, the third requisite was not complied
beneficiaries, the same rule and procedure shall apply.
because the child is not dependent on his grandmother for
support but upon his father. Thus it can now be subject of
At the execution sale, no bid below the value allowed for
partition upon the death of the person constituting the family
a family home shall be considered. The proceeds shall be
home.
applied first to the amount mentioned in Article 157, and
then to the liabilities under the judgment and the costs.
The excess, if any, shall be delivered to the judgment Art. 160. When a creditor whose claims is not among
debtor. those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum
According to the Court in that case, suppose the family home
amount fixed in Article 157, he may apply to the court
at the time of its constitution was situated in a place where
which rendered the judgment for an order directing the
for instance, in Davao. 20 years ago, Maa is a place where you
sale of the property under execution. The court shall so
do not want to go but the value now has already increased
order if it finds that the actual value of the family home
because of the improvements introduced by the government.
exceeds the maximum amount allowed by law as of the
Does it mean that together with the increase in the value of
time of its constitution. If the increased actual value
the property also comes with it the increase in the value of
exceeds the maximum allowed in Article 157 and results
the family home? Answer is No.
from subsequent voluntary improvements introduced by
the person or persons constituting the family home, by
According to the Court, the increase resulted from the
the owner or owners of the property, or by any of the
voluntary improvement introduced by the person
beneficiaries, the same rule and procedure shall apply.
constituting the family home, the owners or its beneficiaries
but not if it improved from the expense of the government
At the execution sale, no bid below the value allowed for
because they are not those mentioned by the Family Code. As
a family home shall be considered. The proceeds shall be
long as the conditions are obtaining despite improvement or
applied first to the amount mentioned in Article 157, and
enlargement, the family home is still exempt from execution
then to the liabilities under the judgment and the costs.
for sale or attachment:
The excess, if any, shall be delivered to the judgment
1. The actual value at the time of its constitution is
debtor.
determined to fall below the statutory limit;
2. The improvement or enlargement does not result
to an increase in value exceeding the statutory This article we discussed in relation to the case of BELL. Take
limit. note of the requisites. Further, in the event the family home
is sold in a public auction, the first P300,000 in urban areas
Those are the conditions which must be met so that it shall be and the first P200,000 in rural areas had to be given first to
exempt from execution. the person constituting the family home. What will be given
to the creditor will be the excess of either the P300,000 or
In relation to this is the case of DARIO III, the father died P200,000.
leaving the mother and two sons. The mother and the other

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From the Lectures of Atty. Lydia Galas 6
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There can only be one family home. Art. 162 must be 1) That it was physically impossible for the
discussed in relation to MODEQUILLO VS BREVA. It is given husband to have sexual intercourse with his
prospective application. In that, “all existing family residences wife within the first 120 days of the 300 days
at the time of the effectivity of the Family Code, are considered which immediately preceded the birth of the
family homes and are prospectively entitled to the benefits child because of:
accorded to a family home under the Family Code. Article 162 a) the physical incapacity of the
does not state that the provisions of Chapter 2, Title V have a husband to have sexual intercourse
retroactive effect”. with his wife;
b) the fact that the husband and wife
Art. 161. For purposes of availing of the benefits of a were living separately in such a way
family home as provided for in this Chapter, a person may that sexual intercourse was not
constitute, or be the beneficiary of, only one family home. possible; or
(n) c) serious illness of the husband,
which absolutely prevented sexual
Art. 162. The provisions in this Chapter shall also govern intercourse;
existing family residences insofar as said provisions are 2) That it is proved that for biological or other
applicable. (n) scientific reasons, the child could not have
been that of the husband, except in the
instance provided in the second paragraph of
Article 164; or
TITLE VI. - PATERNITY AND FILIATION
3) That in case of children conceived through
Chapter 1. Legitimate Children
artificial insemination, the written
authorization or ratification of either parent
Art. 163. The filiation of children may be by nature or by was obtained through mistake, fraud,
adoption. Natural filiation may be legitimate or violence, intimidation, or undue influence.
illegitimate. (n) (255a)

DISPUTABLE PRESUMPTION – Number 3 – the written authorization or ratification was


Art. 164. Children conceived or born during the obtained through any of the vices of consent.
marriage of the parents are legitimate.
Art. 167. The child shall be considered legitimate
Children conceived as a result of artificial insemination although the mother may have declared against its
of the wife with the sperm of the husband or that of a legitimacy or may have been sentenced as an adulteress.
donor or both are likewise legitimate children of the
husband and his wife, provided, that both of them
authorized or ratified such insemination in a written Art. 168. If the marriage is terminated and the mother
instrument executed and signed by them before the contracted another marriage within three hundred days
birth of the child. The instrument shall be recorded in after such termination of the former marriage, these rules
the civil registry together with the birth certificate of shall govern in the absence of proof to the contrary:
the child. (55a, 258a) 1) A child born before one hundred eighty days
after the solemnization of the subsequent
marriage is considered to have been conceived
The child conceived thru artificial insemination are also
during the former marriage, provided it be born
considered legitimate as long as both of them authorized or
within three hundred days after the
ratified the insemination in a written instrument executed
termination of the former marriage;
and signed by them before the child was born. The
2) A child born after one hundred eighty days
instrument shall be recorded in the Local Civil Registry and
following the celebration of the subsequent
together with the Birth Certificate of the child. The sperm
marriage is considered to have been conceived
may be that of the husband or that of a donor. The child is
during such marriage, even though it be born
presumed legitimate for as long as the requisites under Art.
within the three hundred days after the
164(2) is complied with.
termination of the former marriage.
Art. 165. Children conceived and born outside a valid
The woman is prohibited from marrying within 300 days
marriage are illegitimate, unless otherwise provided in
from the date of death of the husband to determine whether
this Code. (n)
the widow was pregnant at the time of the death. The reason
for that is to determine the paternity of the child if she is
Exception here are those of void marriages under 36 and Art. indeed pregnant.
53 since they are legitimate under Art. 54 by express
provision of the law. In the absence of proof to the contrary, you just follow Article
168. Remember: a child born before one hundred eighty
Take note that it is only – (180) days and a child born after one hundred eighty (180)
1. the father or days, provided that such child shall be born within three
2. in exceptional cases, the heirs hundred (300) days after the termination of the former
who can impugn the legitimacy of the child and the provision marriage. So, kanino siya mag-belong?
of Art. 166, the enumeration is exclusive.  If before 180 days, sa former marriage.
 If after 180 days, then it is presumed to belong to
Art. 166. Legitimacy of a child may be impugned only the subsequent marriage, provided that such child
on the following grounds: shall be born within three hundred (300) days after
the termination of the former marriage.

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In the case of BADUA, it was proven that the mother was


This was asked in the 1999 Bar Exams. unmarried and never been pregnant during her lifetime. Even
those who were close to her would attest that “hindi ko ‘yan
Art. 169. The legitimacy or illegitimacy of a child born nakita..”. It was also established that she was consulting Dr.
after three hundred days following the termination of the Manahan. In the case of BABIERA, it was also found
marriage shall be proved by whoever alleges such impossible for the alleged mother to give birth to a child
legitimacy or illegitimacy. (261a) without any assistance of a doctor because she was already
54 years old at that time. Sabi ng court hindi talaga.
Art. 170. The action to impugn the legitimacy of the child
shall be brought within one year from the knowledge of From FT of Benitez-Badua vs. CA, reiterated in the case of
the birth or its recording in the civil register, if the Babiera vs Catotal:
husband or, in a proper case, any of his heirs, should
reside in the city or municipality where the birth took Petitioner's insistence on the applicability of Articles
place or was recorded. 164, 166, 170 and 171 of the Family Code to the case at
If the husband or, in his default, all of his heirs do not bench cannot be sustained.
reside at the place of birth as defined in the first
paragraph or where it was recorded, the period shall be Xxx
two years if they should reside in the Philippines; and
three years if abroad. If the birth of the child has been A careful reading of the above articles will show that they
concealed from or was unknown to the husband or his do not contemplate a situation, like in the instant case,
heirs, the period shall be counted from the discovery or where a child is alleged not to be the child of nature or
knowledge of the birth of the child or of the fact of biological child of a certain couple. Rather, these articles
registration of said birth, whichever is earlier. govern a situation where a husband (or his heirs)
denies as his own a child of his wife. Thus, under Article
166, it is the husband who can impugn the legitimacy of
The period within which to impugn the legitimacy of the child
said child by proving:
is provided in Article 170. Remember the periods: 1, 2, and
1. it was physically impossible for him to have
3 years.
sexual intercourse, with his wife within the first
 1 year if the father or his heirs should reside in the
120 days of the 300 days which immediately
city or municipality where the birth took place or
preceded the birth of the child;
was recorded;
2. that for biological or other scientific reasons, the
 2 years if the father or his heirs are in the
child could not have been his child;
Philippines but resides in a different city or
3. that in case of children conceived through
municipality; and
artificial insemination, the written
 3 years if residing abroad.
authorization or ratification by either parent
was obtained through mistake, fraud, violence,
If the birth of the child has been concealed, the discovery or
intimidation or undue influence.
knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier, is the
Articles 170 and 171 reinforce this reading as they speak
reckoning point. Ang father lang ang pwedeng mag-impugn
of the prescriptive period within which the husband or
eh, ‘di pwede ang mother. Always remember that a
any of his heirs should file the action impugning the
mother/maternity is certain. It is paternity that is uncertain.
legitimacy of said child. Doubtless then, the appellate
court did not err when it refused to apply these articles to
As a general rule, only the husband may impugn the
the case at bench. For the case at bench is not one where
legitimacy. But when may the heirs impugn the legitimacy of
the heirs of the late Vicente are contending that petitioner
a child?
is not his child by Isabel. Rather, their clear submission is
that petitioner was not born to Vicente and Isabel.
Art. 171. The heirs of the husband may impugn the
filiation of the child within the period prescribed in the But take note of the case of JINKIE DE JESUS AND
preceding article only in the following cases: JACQUELINE DE JESUS VS. ESTATE OF JUAN GAMBOA
1) If the husband should die before the expiration DIZON (G.R. No. 142877, October 2, 2001). In this case, Juan
of the period fixed for bringing his action; Dizon, during his lifetime, executed a public document
2) If he should die after the filing of the complaint acknowledging Jackie and Jinkie as his illegitimate children
without having desisted therefrom; or with Carolina. At the time of conception and birth of the
3) If the child was born after the death of the children, Carolina was still married to Danilo De Jesus. When
husband. Dizon died, Jackie and Jinkie presented this public
acknowledgment of illegitimate filiation made by Dizon. The
These are the only grounds where the heirs may impugn the Supreme Court said that they are presumed to belong to the
legitimacy of a child. Otherwise, it is only granted to the present and subsisting marriage between Carolina and
father. In the cases of BENITEZ-BADUA VS. CA, ET. AL. (G.R. Danilo. There was this attempt on the children to impugn
No. 105625, January 24, 1994) and TEOFISTA BABIERA VS. their very own legitimacy when they presented that public
PRESENTACION B. CATOTAL (G.R. No. 138493, June 15, document.
2000), the provisions Article 164, 166, 170, and 171 were not
applied because the child is not at all the child of the spouses. From FT of De Jesus vs. Estate of Dizon:
These provisions will only apply to a situation whereby it is
the father or the heirs, in exceptional circumstances, who There is perhaps no presumption of the law more firmly
would impugn the legitimacy of the child. established and founded on sounder morality and more
convincing reason than the presumption that children

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born in wedlock are legitimate. This presumption indeed The fact that Corazon Garcia had been living separately
becomes conclusive in the absence of proof that there is from her husband, Ramon Yulo, at the time petitioner was
physical impossibility of access between the spouses conceived and born is of no moment. xxx
during the first 120 days of the 300 days which
immediately precedes the birth of the child due to It is therefore clear that the present petition initiated by
a. the physical incapacity of the husband to have Corazon G. Garcia as guardian ad litem of the then minor,
sexual intercourse with his wife; herein petitioner, to compel recognition by respondents
b. the fact that the husband and wife are living of petitioner William Liyao, Jr, as the illegitimate son of the
separately in such a way that sexual intercourse late William Liyao cannot prosper. It is settled that a child
is not possible; or born within a valid marriage is presumed legitimate even
c. serious illness of the husband, which absolutely though the mother may have declared against its
prevents sexual intercourse. legitimacy or may have been sentenced as an adulteress.
We cannot allow petitioner to maintain his present
Quite remarkably, upon the expiration of the periods set petition and subvert the clear mandate of the law that only
forth in Article 170, and in proper cases Article 171, of the the husband, or in exceptional circumstances, his heirs,
Family Code (which took effect on 03 August 1988), the could impugn the legitimacy of a child born in a valid and
action to impugn the legitimacy of a child would no longer subsisting marriage. The child himself cannot choose his
be legally feasible and the status conferred by the own filiation. If the husband, presumed to be the father
presumption becomes fixed and unassailable. does not impugn the legitimacy of the child, then the
status of the child is fixed, and the latter cannot choose to
Succinctly, in an attempt to establish their illegitimate be the child of his mother’s alleged paramour. On the other
filiation to the late Juan G. Dizon, petitioners, in effect, hand, if the presumption of legitimacy is overthrown, the
would impugn their legitimate status as being children of child cannot elect the paternity of the husband who
Danilo de Jesus and Carolina Aves de Jesus. This step successfully defeated the presumption.
cannot be aptly done because the law itself establishes the
legitimacy of children conceived or born during the I’ve been praying that the case of GERARDO CONCEPCION
marriage of the parents. The presumption of legitimacy VS. CA AND THERESA ALMONTE (G.R. No. 123450. August
fixes a civil status for the child born in wedlock, and only 31, 2005) will come out in the Bar Exam. Maganda siya eh.
the father, or in exceptional instances the latter’s heirs, Gerardo and Ma. Theresa got married in December 1989. In
can contest in an appropriate action the legitimacy of a 1990, they had a child named Jose Gerardo. In 1991, Gerardo
child born to his wife. Thus, it is only when the legitimacy filed a petition for declaration of nullity of marriage because
of a child has been successfully impugned that the he found out that Theresa was still married to one Mario
paternity of the husband can be rejected. xxx Gopiao. The court granted the petition filed by Gerardo.
The rule that the written acknowledgment made by the Theresa got angry because she said that Gerardo was
deceased Juan G. Dizon establishes petitioner’s alleged responsible for the bastardization of their child, Jose Gerardo.
illegitimate filiation to the decedent cannot be validly While the court granted Gerardo visitation rights, this was
invoked to be of any relevance in this instance. This issue, opposed by Theresa because there was no law that grants an
i.e., whether petitioners are indeed the acknowledged illegitimate father visitation rights to an illegitimate child.
illegitimate offsprings of the decedent, cannot be aptly Further, she prays that Jose Gerardo would carry her
adjudicated without an action having been first been surname instead of Concepcion. The lower court denied the
instituted to impugn their legitimacy as being the children motion of Theresa citing the best interest of the child as a
of Danilo B. de Jesus and Carolina Aves de Jesus born in ground. The appellate court affirmed the decision of the
lawful wedlock. Jurisprudence is strongly settled that the lower court. Acting upon Theresa’s motion for
paramount declaration of legitimacy by law cannot be reconsideration, the appellate court ruled that the child is the
attacked collaterally, one that can only be repudiated or legitimate child of Theresa and Mario because the child was
contested in a direct suit specifically brought for that born during the subsistence of their marriage. It is only Mario
purpose. Indeed, a child so born in such wedlock shall be who has the right to impugn the legitimacy of the child. The
considered legitimate although the mother may have SC said that proof beyond reasonable doubt must be
declared against its legitimacy or may have been established to prove that there was no access during the first
sentenced as having been an adulteress. 120 days of the 300 days that immediately preceded the birth
of the child. It was established in this case that Mario is
In the case of WILLIAM LIYAO, JR. VS. JUANITA TANHOTI- residing 4kms away from where Theresa and Gerardo are
LIYAO, ET. AL. (G.R. No. 138961. March 7, 2002), the SC also residing. There is that greater possibility of sexual access.
held that William Liyao Jr. is not the child of Corazon Garcia
with William Liyao. He is presumed to be the child of Corazon From FT of Concepcion vs. CA:
and Ramon M. Yulo, her legal husband, even if there was an
admission from their children that Liyao Jr. is the child of The presumption of legitimacy proceeds from the sexual
William Liyao. The fact that the child was born during the union in marriage, particularly during the period of
subsistence of a valid marriage, the presumption is that such conception. To overthrow this presumption on the basis
child belongs to that subsisting marriage. It is only the of Article 166 (1)(b) of the Family Code, it must be shown
husband or his heirs, in some cases, who can impugn the beyond reasonable doubt that there was no access that
legitimacy of a child because they are the ones who are could have enabled the husband to father the child. Sexual
directly confronted with a scandal and ridicule brought about intercourse is to be presumed where personal access is
by the wife. not disproved, unless such presumption is rebutted by
evidence to the contrary.
From FT of Liyao Jr. vs. Tanhoti-Liyao:
The presumption is quasi-conclusive and may be refuted
only by the evidence of physical impossibility of coitus

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between husband and wife within the first 120 days of the 2) An admission of legitimate filiation in a public
300 days which immediately preceded the birth of the document or a private handwritten instrument
child. and signed by the parent concerned.

To rebut the presumption, the separation between the In the absence of the foregoing evidence, the legitimate
spouses must be such as to make marital intimacy filiation shall be proved by:
impossible. This may take place, for instance, when they 1) The open and continuous possession of the
reside in different countries or provinces and they were status of a legitimate child; or
never together during the period of conception. Or, the 2) Any other means allowed by the Rules of Court
husband was in prison during the period of conception, and special laws. (265a, 266a, 267a)
unless it appears that sexual union took place through the
violation of prison regulations. Art. 172, Numbers 1 and 2 are actually the primary proof of
filiation. In the absence of such primary proof, we have the
Here, during the period that Gerardo and Ma. Theresa secondary proof consisting of:
were living together in Fairview, Quezon City, Mario was 1. the open and continuous possession of the status of
living in Loyola Heights which is also in Quezon City. a legitimate child; and
Fairview and Loyola Heights are only a scant four 2. any other means allowed by the Rules of Court and
kilometers apart. special laws.

Not only did both Ma. Theresa and Mario reside in the Requisites of open and continuous possession of the
same city but also that no evidence at all was presented to status of a legitimate child:
disprove personal access between them. Considering 1. The child must openly bear the name of the
these circumstances, the separation between Ma. Theresa supposed parent;
and her lawful husband, Mario, was certainly not such as 2. Admission by the parents/family of the legitimacy;
to make it physically impossible for them to engage in the and
marital act. 3. Admission in the community to be a legitimate
child (tractatus).
The case of ESTATE OF ROGELIO ONG VS. MINOR JOANNE
DIAZ (G.R. No. 171713, December 17, 2007) is complete “Any other means allowed by the Rules of Court”
contradiction of the presumptions in Arts. 164 and 167. The Examples: Entries in the family bible wherein the name of the
child, Joanne Diaz, was suspected of being illegitimate. The child is entered, family relation/common reputation respecting
mother, Jinky Diaz, cannot impugn the legitimacy of the child pedigree, etc.
even if she was sentenced as an adulteress. Jinky prays that
Joanne must undergo DNA testing because she was claiming Art. 173. The action to claim legitimacy may be brought
that she was not the child of her husband, Hasegawa Katsuo, by the child during his or her lifetime and shall be
a Japanese national. Jinky was claiming that the father was transmitted to the heirs should the child die during
Rogelio G. Ong because they had illicit relationship for 4 years minority or in a state of insanity. In these cases, the heirs
and he was actually the one giving support initially. She asked shall have a period of five years within which to institute
for support but during the pendency of the case, Rogelio died the action.
and was substituted by the heirs. The heirs opposed that
contended that there is the presumption under Art. 164. But
The action to claim legitimacy is imprescriptible if brought by
the SC said that the child may now undergo DNA testing
the child. If the child dies during minority or state of insanity,
because it was established that Hasegawa was not in the
the heirs are given 5 years to institute the action. The action
Philippines prior, during, and even after the pregnancy and
already commenced by the child shall survive but not after
subsequent birth of the child. That is actually contrary to the
the death of either or both of the parties (?) but this only
presumption on Art. 164. Because of the advancement of
applies to claims for legitimate filiation. Because in the case
science and technology, the SC allowed the child to undergo
of IN THE MATTER OF ESTATE OF DE LA ROSA, ET. AL. VS.
through a DNA test.
HEIRS OF VDA. DE DAMIAN, ET. AL. (G.R. No. 155733,
January 27, 2006), the SC said that it has a dual limitation –
I have a hard time trying to reconcile that because 1st year
the death of the child or the death of the father. In this case,
students were texting my son.. ipangutana daw ka Maam.. kay
what is involved is illegitimate filiation. If it is legitimacy,
‘diba in relation to this is the ruling in CONCEPCION VS. CA
apply Art. 173.
(2005) where the SC held that it must be established beyond
reasonable doubt that there was no sexual act during the first
120 days of the 300 days immediately preceding the birth of Art. 174. Legitimate children shall have the right:
the child . In the case of Ong, it was established that Hasegawa 1) To bear the surnames of the father and the
was really not present before, during, and even after the mother, in conformity with the provisions of the
pregnancy. So DNA testing was allowed to determine the Civil Code on Surnames;
paternity of the child. 2) To receive support from their parents, their
ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of
Chapter 2. Proof of Filiation this Code on Support; and
3) To be entitled to the legitimate and other
successional rights granted to them by the Civil
Art. 172. The filiation of legitimate children is established
Code.
by any of the following:
1) The record of birth appearing in the civil “Other successional rights”
register or a final judgment; or Example: right of representation because such right is not
granted to illegitimate children because of the Iron Bar Rule.

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Chapter 3. Illegitimate Children words. The use of the word "may" in the provision
readily shows that an acknowledged illegitimate child
Art. 175. Illegitimate children may establish their is under no compulsion to use the surname of his
illegitimate filiation in the same way and on the same illegitimate father. The word "may" is permissive and
evidence as legitimate children. operates to confer discretion upon the illegitimate
children.
The action must be brought within the same period
specified in Article 173, except when the action is based If the father does not recognize the child, such child will not
on the second paragraph of Article 172, in which case the have any middle name. Otherwise, mag-kapatid na sila ng
action may be brought during the lifetime of the alleged kanyang nanay. This was the ruling in the case of REPUBLIC
parent. VS. TRINIDAD CAPOTE (G.R. No. 157043, February 2, 2007).

How do illegitimate children prove filiation? It is the same From FT:


manner as proving legitimate filiation only that if the
illegitimate child is claiming illegitimate filiation by Applying these laws, an illegitimate child whose filiation is
secondary proof, then the action must be brought during the not recognized by the father bears only a given name and
lifetime of the putative father. his mother’ surname, and does not have a middle name.
The name of the unrecognized illegitimate child therefore
Rights of an illegitimate child: identifies him as such. It is only when the illegitimate child
is legitimated by the subsequent marriage of his parents
Art. 176. Illegitimate children shall use the surname and or acknowledged by the father in a public document or
shall be under the parental authority of their mother, and private handwritten instrument that he bears both his
shall be entitled to support in conformity with this Code. mother’s surname as his middle name and his father’s
The legitime of each illegitimate child shall consist of one- surname as his surname, reflecting his status as a
half of the legitime of a legitimate child. Except for this legitimated child or an acknowledged child.
modification, all other provisions in the Civil Code
governing successional rights shall remain in force. Art. 176 has been amended by RA 9255. The child using the
surname of the mother and under the parental authority of
An illegitimate child shall bear the surname of the mother the mother, the legitime is ½ of the share of the legitimate
unless recognized by the father. Take note that it is the child. Suppose the father recognizes the child, may the father
illegitimate child who has the right whether or not to use the exercise parental authority over such child?
surname of the father. The father cannot compel the
(illegitimate) child to use his surname as held in the case of In the case of JOHN PAUL FERNANDEZ, ET. AL. VS. CA AND
GRACE GRANDE VS. PATRICIO ANTONIO (G.R. No. 206248, CARLITO FERNANDEZ (G.R. No. 108366, February 16,
February 18, 2014). 1994), the mother, Violeta Esguerra, was trying to prove that
her children are the legitimate children of Carlito Fernandez
through pictures, the birth certificate, baptismal certificate,
From FT of Grande vs. Antonio:
and the testimony of the priest who held the baptism and
pointed to Carlito as the father of the child. According to the
Art. 176 of the Family Code was later amended on March
SC, pictures and acts of showering love to the child are not the
19, 2004 by RA 9255 which now reads:
kind of recognition embodied in Art. 172 in relation to Art.
175. Those pictures are hearsay and it was also shown that
Art. 176. – Illegitimate children shall use the surname
there was no participation i.e. signature of Carlito in the birth
and shall be under the parental authority of their
and baptismal certificates. As to the testimony of the priest, it
mother, and shall be entitled to support in conformity
was shown that he was coached prior to his giving of the
with this Code. However, illegitimate children may
testimony.
use the surname of their father if their filiation has
been expressly recognized by their father through the
In the case of RODOLFO FERNANDEZ, ET. AL. VS. ROMEO
record of birth appearing in the civil register, or when
FERNANDEZ, ET. AL. (G. R. No. 143256, August 28, 2001),
an admission in a public document or private
the proof of legitimacy presented by Rodolfo when he
handwritten instrument is made by the father.
claimed that he was the legitimate child of Dr. Jose Fernandez
Provided, the father has the right to institute an action
was recognition for back pay pursuant to RA 897. While the
before the regular courts to prove non-filiation during
SC admitted that recognition for back pay was a public
his lifetime. The legitime of each illegitimate child
document, the same does not admit filiation so it cannot be
shall consist of one-half of the legitime of a legitimate
used as proof of filiation.
child.
In the case of Ida Labagala vs. Nicolasa Santiago, et. al. (G.R.
From the foregoing provisions, it is clear that the general
No. 132305. December 4, 2001), the issue here is whether or
rule is that an illegitimate child shall use the surname of
not an income tax return can be used as proof of filiation. The
his or her mother. The exception provided by RA 9255 is,
SC said no. It does not prove filiation. It only proves that
in case his or her filiation is expressly recognized by the
particular taxes during a period have been paid.
father through the record of birth appearing in the civil
register or when an admission in a public document or
In the case of LOCSIN, ET. AL. VS. JUAN LOCSIN (G.R. NO.
private handwritten instrument is made by the father. In
146737, DECEMBER 10, 2001), the issue is: As between the
such a situation, the illegitimate child may use the
original certificate of live birth issued by the Civil Registrar of
surname of the father. xxx
Iloilo (the place where the alleged birth took place) and a
certified true copy issued by the Cvil Registrar General but
On its face, Art. 176, as amended, is free from ambiguity.
And where there is no ambiguity, one must abide by its

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has discrepancies different from the one issued by the local recognition. It is not recognition itself. But it has a dual
civil registrar, which copy must prevail? limitation – the death of the child and the death of alleged
father. As to the second proof (voluntary recognition), both
The informant of the original birth certificate issued by the must fail. There was no participation, like a signature, on the
civil registrar of Iloilo was the alleged father, Locsin. part of Guillermo on the school records presented. The
However, his heirs opposed the issuance of letters of obituary was also not appreciated. Guillerma should have
administration by presenting the copy issued by the civil presented the manuscript handwritten by Guillermo Rustia
registrar general where the informant was the mother of the instead of the obituary published in the Sunday Times. There
child. was no recognition in this case.

The SC said that the copy issued by the Civil Registrar General The case of TEOFISTO VERCELES VS. MARIA CLARISSA
must prevail because it is highly impossible for such office to POSADA (G.R. NO. 159785, APRIL 27, 2007) involves
falsify a 1957 birth record coming from a mass of records as Verceles, the Mayor of Pandan, Catanduanes who fell in love
it would involve several employees; whereas the copy for the with Clarissa Posada. The latter eventually got pregnant and
civil registrar of Iloilo had several discrepancies which gave birth but this was denied by Verceles. According to him,
cannot be properly explained by the civil registry. And it was he could not have been the father of the child because he did
even detached from the book and such was also not not sign the birth certificate and it was only Clarissa who
explained. entered his name. In court, Clarissa presented letters
handwritten by Verceles and a picture of Verceles when he
The case of ERNESTINA BERNABE VS. CAROLINA ALEJO was still young. At the back of the picture, there was a written
(G.R. No. 140500. January 21, 2002) was asked in the 2005 note which reads “I love you forever” and signed “Ninoy”.
Bar Exam. In this case, the late Fiscal Ernesto A. Bernabe
allegedly fathered a son with his secretary of twenty-three The SC held that the letters and the note at the back of the
(23) years, Carolina Alejo. The child, Adrian Bernabe, was picture are proven to be written by one and the same person.
born in 1981. Fiscal Bernabe died in 1993. Carolina, on behalf Moreover, the Memorandum submitted by Verceles admits
of the child, filed an action to claim the share in the estate of that he had an affair with Clarissa. Two (2) of the letter also
deceased Bernabe. At that time, the child was not recognized bear the letterhead of the Office of the Mayor of the
by the father. Adrian Bernabe was a spurious child. The municipality of Pandan. All of these are sufficient proofs that
action was opposed by the heirs of Bernabe on the ground of he was the father of Clarissa’s child.
prescription pursuant to Article 175 since the child was
claiming filiation using secondary proof. Such proof must (Ma’am mentioned the case of JENIE DELA CRUZ, ET. AL. VS.
only be brought during the lifetime of the alleged father. The RONALD GRACIA (G.R. NO. 177728, JULY 31, 2009) but did
SC said that since the child was born in 1981, then his right to not continue anymore.)
claim filiation must be pursuant to Art. 285 of the Civil Code
which grants the child to file an action for recognition to be Copied from 2017 Digest:
filed within 4 years after the child has attained the age of FACTS: Jenie and Dominique lived together as husband
majority. It must be noted that Art. 285 is a substantive right and wife without the benefit of marriage and stayed at
which cannot be taken away upon passage of a new law. Dominique’s parents’ house. During his lifetime,
Dominique wrote his autobiography that reads in part:
From FT of Bernabe vs. Alejo: To emphasize, illegitimate
children who were still minors at the time the Family Code “As of now I have my wife named Jenie dela Cruz x x x.
took effect and whose putative parent died during their Then we fell in love with each other. x x x x. And as of now
minority are thus given the right to seek recognition she is pregnant and for that we live together. xxx.”
(under Article 285 of the Civil Code) for a period of up to
four years from attaining majority age. This vested right After Jenie gave birth, she applied for registration using
was not impaired or taken away by the passage of the the deceased’s surname Aquino in support of which she
Family Code. attached the Certificate of Live Birth, Affidavit to Use
Indeed, our overriding consideration is to protect the Surname of the Father (AUSF) signed by Jenie and
vested rights of minors who could not have filed suit, on Affidavit of Acknowledgment executed by Dominique’s
their own, during the lifetime of their putative parents. As father. Attached to the AUSF is the autobiography. The
respondent aptly points out in his Memorandum, the State LCR denied the registration citing that the child cannot use
as parens patriae should protect a minors right. Born in the surname of the father because the child was born out
1981, Adrian was only seven years old when the Family of wedlock and the father died prior to his birth and has
Code took effect and only twelve when his alleged father no more capacity to acknowledge his paternity. Moreover,
died in 1993. The minor must be given his day in court. the AUSF was unsigned by the father. Jenie argued that
Article 176 as amended by RA 9255 does not require the
In the case of IN THE MATTER OF ESTATE OF DE LA ROSA, signature of the putative father.
ET. AL. VS. HEIRS OF VDA. DE DAMIAN, ET. AL. (G.R. NO.
155733, JANUARY 27, 2006), Guillerma claimed that she is RULING: Article 176 of the Family Code, as amended, does
an illegitimate child of Guillermo Rustia by alleging proof of not, indeed, explicitly state that the private handwritten
1. open and continuous possession of the status of an instrument acknowledging the child’s paternity must be
illegitimate child; and signed by the putative father. This provision must,
2. voluntary recognition consisting of the school however, be read in conjunction with related provisions of
records and obituary wherein Guillermo Rustia the Family Code which require that recognition by the
named Guillerma as one of his children. father must bear his signature, thus: "Art. 175 in relation
to Art. 172 (2) which provides that an admission of
As to the first proof (open and continuous possession of the legitimate filiation in a public document or a private
status), the SC said that such proof is only a means to compel handwritten instrument and signed by the parent

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concerned." xxx That a father who acknowledges LCR denied the registration citing that the child cannot
paternity of a child through a written instrument must use the surname of the father because the child was born
affix his signature thereon is clearly implied in Article 176 out of wedlock and the father died prior to his birth and
of the Family Code. has no more capacity to acknowledge his paternity.
Moreover, the AUSF was unsigned by the father.
In the present case, however, special circumstances exist
to hold that Dominique’s autobiography, though unsigned Jenie argued that Article 176 as amended by RA 9255
substantially satisfies the requirement of the law. does not require the signature of the putative father.
1. Dominique died about 2 months prior to the
child’s birth. HELD:
2. The relevant matters in the autobiography, Article 176 of the Family Code (FC) as amended by RA
unquestionably written by Dominique, 9255, does not, indeed, explicitly state that the private
correspond to the facts culled from the handwritten instrument acknowledging the child’s
testimonial evidence Jenie proffered. paternity must be signed by the putative father. This
3. Jenie’s testimony is corroborated by the provision must, however, be read in conjunction with
Affidavit of Acknowledgment of Dominique’s related provisions of the FC which require that
father and testimony of his brother whose recognition by the father must bear his signature, thus:
hereditary rights could be affected by the
registration of the questioned recognition of the Article 175 in relation to Article 172 particularly
child. paragraph 1 (2).
“An admission of legitimate filiation in a public
These circumstances indicating Dominique’s paternity of document or a private handwritten instrument and
the child give life to his statements that “JENIE DELA CRUZ signed by the parent concerned.”
is “MY WIFE” as “WE FELL IN LOVE WITH EACH OTHER”
and “NOW SHE IS PREGNANT AND FOR THAT WE LIVE The recognition made in any of these documents is, in
TOGETHER.” itself, a consummated act of acknowledgment of the
child’s paternity; hence, no separate action for judicial
In the case at bar, the SC adopts the following rules approval is necessary.
respecting the requirement of affixing the signature of the
acknowledging parent in any private handwritten THAT A FATHER WHO ACKNOWLEDGES PATERNITY
instrument wherein an admission of filiation of a THROUGH A WRITTEN DOCUMENT MUST AFFIX HIS
legitimate or illegitimate child is made: SIGNATURE THEREON IS CLEARLY IMPLIED IN
1. Where the private handwritten instrument is ARTICLE 176 OF THE FC. In the present case, however,
the lone evidence submitted to prove filiation, special circumstances exist to hold that Dominique’s
there should be strict compliance with the autobiography, though unsigned substantially satisfies
requirement that the same must be signed by the requirement of the law.
the acknowledging parent; and 1. Dominique died about 2 months prior to the
2. Where the private handwritten instrument is child’s birth.
accompanied by other relevant and competent 2. The relevant matters in the autobiography,
evidence, it suffices that the claim of filiation unquestionably written by Dominique,
therein be shown to have been made and correspond to the facts culled from the
handwritten by the acknowledging parent as it testimonial evidence Jenie proffered.
is merely corroborative of such other evidence. 3. Jenie’s testimony is corroborated by the
Affidavit of Acknowledgment of Dominique’s
August 10, 2018 father and testimony of his brother whose
hereditary rights could be affected by the
DELA CRUZ vs. GRACIA registration of the questioned recognition of
RA 648 (July 31, 2009) the child.

FACTS: These circumstances indicating Dominique’s paternity of


Jenie and Dominique lived together as husband and wife the child give life to his statements that “JENIE DELA
without the benefit of marriage and stayed in CRUZ is “MY WIFE” as “WE FELL IN LOVE WITH EACH
Dominique’s parents’ house. During his lifetime, OTHER” and “NOW SHE IS PREGNANT AND FOR THAT
Dominique wrote his autobiography that reads in part: WE LIVE TOGETHER.”

“As of now I have my wife named Jenie dela Cruz x x x. In the case at bar, the SC adopts the following rules
Then we fell in love with each other. x x x x. And as of respecting the requirement of affixing the signature of
now she is pregnant and for that we live together. X x the acknowledging parent in any private handwritten
x.”. instrument wherein an admission of filiation of a
legitimate or illegitimate child is made:
After Jenie gave birth, she applied for registration using  Where the private handwritten instrument is
the deceased’s surname Aquino in support of which she the lone evidence submitted to prove filiation,
attached the Certificate of Live Birth, Affidavit to Use there should be strict compliance with the
Surname of the Father (AUSF) signed by Jenie and requirement that the same must be signed by
Affidavit of Acknowledgment executed by Dominique’s the acknowledging parent; and
father. Attached to the AUSF is the autobiography.  Where the private handwritten instrument is
accompanied by other relevant and competent
evidence, it suffices that the claim of filiation

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therein be shown to have been made and The above-quoted note does not contain any statement
handwritten by the acknowledging parent as it whatsoever about Arhbencel’s filiation to Nepomuceno. It
is merely corroborative of such other evidence. is, therefore, not within the ambit of Article 172 (2) vis-à-
vis Article 175 of the FC, which admits as competent
NEPOMUCENO VS LOPEZ is different, there was a document evidence of illegitimate filiation an admission of filiation
whereby Nepomuceno promised to provide support to the in a private handwritten instrument signed by the parent
child in the amount of 1, 500 pesos every 15th and 30th, but concerned.
there was no compliance on the part of Nepomuceno. He did
not provide the amount as promised in the document. When The note cannot also be accorded the same weight as
sued for recognition of the child, this was the very same the notarial agreement to support the child. For it is
document that was introduced by the alleged mother. not even notarized. And the notarial agreement must be
According to the court, there must be an admission of the accompanied by the putative father’s admission of
filiation by the father. Here, there is merely this promise to filiation to be an acceptable evidence of filiation. Here,
provide support, but never was there any mention of the fact however, not only has petitioner not admitted filiation
that he recognized the child as his illegitimate child. through contemporaneous actions. He has consistently
denied it.
NEPOMUCENO vs. LOPEZ
G.R. No. 181258 March 18, 2010 The only other documentary evidence submitted by
Arhbencel, a copy of her Certificate of Live Birth, has no
FACTS: probative value to establish filiation to petitioner, the
Araceli, for and in behalf of minor Arhbencel filed a latter not having signed the same.
complaint for recognition and support against
Nepomuceno. She alleged that Arhbencel is the product of In GOTARDO VS BULING, if a woman claims that she had
her extramarital affair with Nepomuceno but that the sexual intercourse with a man and corroborated by other
latter refused to affix his signature on the child’s birth evidence, then there is a prima facie evidence that the man is
certificate. But as proof of his acknowledgment that the the father of the child and the burden of proof is now shifted
child is his child, Araceli presented as proof a handwritten to the person who is now denying paternity. In this case, in as
note where he obligated himself to give financial support much as it is corroborated by the owner of the boarding
in the amount of P1,500.00 on the 15th and 30th of each house where the woman was staying who was also her Uncle
month. She claimed that the child’s filiation was that the woman had sexual intercourse with the man, then
established by the said note. the presumption is that the child is the child of the man.
Although the allegation of the man is that it could not be his
HELD: because the dates differ. But for as long as it can be proven
Arhbencel’s demand for support, being based on her claim that she had only sexual intercourse with one particular man,
of filiation to Nepomuceno as his illegitimate daughter then the presumption arises that he is already the father of
falls under Article 195 (4). As such, her entitlement to the child.
support from petitioner is dependent on the
determination of her filiation. CHARLES GOTARDO v. DIVINA BULING
678 S 436
To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the FACTS: Gotardo denied fathering the child of Buling
writing of the putative father. claiming that he first had sexual intercourse with
 A notarial agreement to support a child respondent on the 1st week of August 1994 and she could
whose filiation is admitted by the putative not have been pregnant for 12 weeks or 3 months when
father was considered acceptable evidence. he was informed of the pregnancy on September 15, 1994.
 Letters to the mother vowing to be a good father
to the child and pictures of the putative father HELD: A prima facie case exists if a woman declares –
cuddling the child on various occasions, supported by corroborative proof – that she had sexual
together with the certificate of live birth, proved relations with the putative father; at this point, the burden
filiation. of evidence shifts to the putative father. The defenses
 However, a student permanent record, available to the putative father are:
 a written consent to father’s operation, or 1. inability of sexual relations with the mother due
 a marriage contract where the putative father to either physical absence or impotence, or
gave consent, cannot be taken as authentic 2. that the mother had sexual relations with other
writing. men at the time of conception.
 Standing alone, neither a certificate of baptism
or family pictures are sufficient to establish The respondent established a prima facie case that
filiation. petitioner is the putative father of Gliffze through
testimony that she had been sexually involved only with
In the present case, Arhbencel relies on the handwritten one man, the petitioner, at the time of her conception.
note executed by petitioner: Rodulfo, the owner of the boarding house where
“I, Ben Hur Nepomuceno, hereby undertake to give petitioner is staying, corroborated her testimony that the
and provide financial support in the amount of x x x x parties had intimate relationship.
x , to Arhbencel Ann Lopez, presently in the custody
of her mother Araceli Lopez without the necessity of On the other hand, petitioner did not deny that he had
demand, subject to adjustment later depending on the sexual encounters with respondent, only that it occurred
needs of the child and my income.” in a much later date than the respondent asserted, such
that it was physically impossible for the respondent to

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have been 3 months pregnant already in September 1994 SSS FORM satisfies the requirement for proof of filiation
when he was informed of the pregnancy. However, and relationship to the spouses; by itself, it constitutes
petitioner failed to substantiate his allegations of infidelity ‘admission of legitimate filiation in a public document or a
and insinuations of promiscuity. His allegations, therefore, private handwritten instrument and signed by the parent
cannot be given credence for lack of evidentiary support. concerned.’
His denial cannot overcome the respondent's clear and
categorical assertions. CA erred when it treated document as mere proof of open
and continuous possession of the status of a legitimate
Since filiation is beyond question, support follows as a child; it is an express recognition.
matter of obligation; a parent is obliged to support his
child, whether legitimate or illegitimate. In ARADO HEIRS VS ALCORAN , the issue here is whether
the child had been recognized by the father who was born in
In the case of AGUILAR VS SIASAT, what was presented by 1951. And the father, predeceased the Grandmother
the petitioner as proof of his filiation is the SSS Form – 1 of (Joaquina). It was actually the latter who took care of
the father where his name appeared therein as one of the Anacleto, and when Joaquina died, the other heirs now claim
beneficiaries. The SC said it is already considered as sufficient the properties because according to them, Anacleto was
proof of filiation because it was a public document subscribed never recognized by the father. The mere presentation of
by the father and in the entries thereof, he acknowledged that birth certificate is not sufficient. SC here, it was true that
the petitioner is his legitimate child born sometime in 1950s. Anacleto was born 1951, the court in deciding the issue
applied 175 of the Family Code because the petition was filed
Aguilar vs Siasat when the Family Code is already in effect. SC also affirmed
G.R. No. 200169, January 28, 2015 that it was proper for the lower court to apply the provisions
of the Family Code considering that it was filed during the
Alfredo Aguilar & Candelaria Siasat-Aguilar died, effectivity of the Family Code. And according to the court,
intestate without debts. Anacleto was able to prove that he is the illegitimate child of
Nicolas. It is shown by the fact that it was Nicolas who himself
Rodolfo Aguilar filed a case for mandatory injunction reported the birth of the child. And it appears in the books of
against Edna Siasat alleging that he is the sole heir; the the Civil Registry particularly on that portion of the book
titles were missing but found in Siasat’s possession; thus where there is that remarks where he signed after reporting
he asked that it be surrendered to him. the birth of the child. So, it was sufficient proof that Nicolas
 School records that shows Aguilar are his had acknowledged the child Anacleto as his illegitimate child.
parents However, the recognition made by Joaquina, because it was
 ITR which stated that Candelaria is his mother she who took care of the child, as well as the one who gave
 SSS of Alfredo, as public instrument subscribed consent to the marriage of Anacleto cannot be given weight,
and made under oath during his employment because according to the Court, recognition is personal to
which bears his signature and thumbmarks and the parent. It cannot be made by a sibling, or in this case, the
indicates that Rodolfo was his son and Grandmother.
dependent
 Employment Sheet where it was indicated that ARADO HEIRS v. ALCORAN
he is his son G.R.#163362 07/08/15
 Certificate of his Marriage where it is declared
that the spouses are his parents FACTS: Nicolas, son of the spouses Raymundo and
 Employment Recommendation Letter Joaquina, is married to Florencia but the union produced
 Certification issued by LCR Bacolod of no offspring. During their marriage, however, Nicolas had
destruction of records an extramarital affair with Francisca who gave birth to
 Testimonies respondent Anacleto on July 13, 1951.

Edna claimed that he is not the son of the spouses but a Raymundo died in 1939, while Nicolas died in 1954.
mere stranger who was raised; not a natural nor adopted Likewise, Florencia died in 1960 and Joaquina died
child; that since Alfredo predeceased his wife, Candelaria in1981.
inherited the conjugal share of Alfredo; that upon death of
Canderlaria, her brother and sister inherited her estate After Joaquina’s death, her heirs questioned Anacleto’s
and the subject tiles were not stolen but entrusted to her possession of the properties left behind by Joaquina and
for safekeeping by Candelaria, who is her Aunt. filed a complaint for recovery of property with damages
 Testimony of Aureas who stated that she does against Anacleto. It was alleged that Anacleto not having
not know petitioner, that he knows of Rodolfo, been recognized by his father Nicolas as the latter’s
but denies petitioner as son of spouses spurious child during his lifetime is not entitled to inherit
 Affidavit that Candelaria is the sole heir of her from Nicolas. That there was no law for the
husband acknowledgment of a spurious child and even if Anacleto
would be given the benefit of the doubt and be considered
W/N SSS E-1 acknowledged and notarized before a a natural child, Article 278 of the Civil Code states that
notary public, executed by Alfredo Aguilar, “recognition shall be made in the record of birth, a will, a
recognizing the petitioner as his son is public statement before a court of record, or in any authentic
document that satisfies the requirement of Art. writing;” but the appearance of the father’s name in the
172(2) to establish petitioner as son of spouses birth certificate alone, without his actual intervention,
was insufficient to prove paternity. That the mere
SC: YES certificate by the civil registrar that the father himself
registered the child, without the father’s signature, was

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not proof of the father’s acknowledgment. The baptismal judicial authority, to establish the paternity or maternity
certificate was insufficient proof of paternity. If there was of children born outside wedlock.”
a ground for Anacleto’s recognition, the period to claim
recognition had already prescribed.
In GERONIMO VS SANTOS, Karen Santos here claimed that
Respondents countered that Nicolas recognized Anacleto she was the legitimate child of Sps Rufino and Caridad and
as his illegitimate child because Nicolas had himself presented the birth certificate likewise the ruling of the court
caused the registration of Anacleto’s birth and the appointing Caridad as guardian of her person and property of
petitioner’s allegation of prescription lacked basis Karen because according to Karen, Rufino died when she was
inasmuch as Anacleto was not seeking compulsory only 8 years old. When the settled the estate of Rufino,
recognition; he had already voluntarily recognized by Caridad waived his share in the estate of Rufino in her favor.
Nicolas as his illegitimate son. Likewise, she is also the beneficiary of the GSIS Funeral
benefit of Caridad and was using the surname Geronimo. But
Both the trial and appellate courts applied Articles 172, the SC said that Karen cannot be the child of the Sps Geronimo
173 and 175 of the Family Code, the law applicable at the because there were alterations in her birth certificate. The
time of the filing of the case. Both courts decided that Uncle claimed that Karen came to the Geronimo spouses
Anacleto’s filiation was established by the record of his when she was only 13 years old and was actually a daughter
birth appearing in the civil register; and that Anacleto of Caridad’s sibling. And indeed, the birth certificate showed
possessed rights in the subject properties. that there were alterations as to the entry of her birthdate as
well as the informant. So all these alterations were not
HELD: The Court affirms the holding by the RTC and the properly explained by Karen. So the SC said that she could not
CA that the provisions of the Family Code should apply have been the child of the spouses.
because the complaint was filed, litigated and decided by
the RTC during the effectivity of the Family Code. Under Moreover, the use of a surname does not by itself establish
the Code, the classification of children is limited to either pedigree, hat was the ruling of the court in LAGABALA VS
legitimate or illegitimate. Illegitimate filiation is proved in SANTIAGO.
accordance with Article 175 of the Family Code in relation
to Article 172 of the same Code. GERONIMO v. SANTOS
GR#197099 09/28/2015
Rightly enough, the RTC and the CA unanimously
concluded that Nicolas had duly acknowledged Anacleto FACTS: This involved a document titled “Pagmamana sa
as his illegitimate son. Anacleto’s birth certificate Labas ng Hukuman” where the RTC and the CA declared
appearing in the Register of Births of the Municipality of the same as void and directed Geronimo to surrender the
Bacong, Negros Oriental showed that Nicolas himself ½ portion of the property, subject matter of the document,
caused the registration of the birth of Anacleto. The to Karen Santos. Santos alleged that she is the legitimate
showing was by means of the name of Nicolas appearing child of the spouses Rufino and Caridad Geronimo and
in the column “Remarks” in the book of the Register of that petitioners Eugenio and Emiliano are the half-
Births which, based on the certification issued by the local brothers of his late father. That Rufino died in 1980 when
civil registrar of Bacong, the column entitled “Remarks” she was only 8 years old, and 18 years later, she and
was the space provided for the name of the informant of Caridad executed an extrajudicial settlement of Rufino’s
the live birth to be registered. Nicolas had a direct hand in estate whereby Caridad waived all her rights ot Rufino’s
the preparation of the birth certificate and reliance on the share in her favor. In fact before the settlement, Caridad
birth certificate of Anacleto as evidence of his paternity had filed before the court and was appointed guardian
was fully warranted. over her person and property. Further, she was in open,
continuous possession of the status of a legitimate child as
Anacleto’s baptismal certificate was of no consequence in established and evidenced by her certificate of live birth.
determining his filiation. As held in Cabania v. CA, that
“while baptismal certificate may be considered a public Eugenio, on the other hand, claimed that Karen has never
document, it can only serve as evidence of the been the child of the spouses Rufino and Caridad but
administration of the sacrament on the date specified but rather she is the child of Caridad’s sister. She joined the
not the veracity of the entries with respect to the child’s the Geronimo household 13 years after the marriage of the
paternity;” and thus, “cannot be admitted indirectly as spouses. Karen’s birth certificate shows irregularities in 2
circumstantial evidence to prove filiation.” entries: 1.) the date of birth was erased and the word and
figure April 6, 1972 was written; and 2.) the name Emma
The picture depicting the young Anacleto in the arms of Dano was superimposed on the entry in the box intended
Joaquina as she stood beside the coffin of Nicolas merely for the informant’s signature. He also presented DEC’s
manifested that it was Joaquina who acknowledged her legal consultant in Bulacan who presented Caridad’s
filiation with Anacleto. His school records which evinced service record as an elementary teacher in Paombong,
that Joaquina was the guardian of Anacleto in his grade Bulacan to show that she did not have any maternity leave
school years and the marriage contract between Anacleto during the period of her service from March 11, 1963 to
and Elenette which indicated that she had given consent October 24, 1984, and a certification from the Schools
to Anacleto’s marriage, did not have evidentiary value and Division Superintendent that Caridad did not file any
mattered little, for, as stressed in Cenido v. Apacionado, the maternity leave during her service.
recognition must be made personally by the parent
himself or herself, not by any brother, sister or relative; Both the trial court and the CA, however, held that Karen
after all, the concept of recognition speaks of a voluntary is the legitimate child of the spouses and thus, has right
declaration by the parent, or if the parent refuses, by over Rufino’s share in the property. The RTC shifted the
burden on proving that the alterations in the birth

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certificate were due to the fault of Santos. While the CA evidence of the truthfulness of the statements made there
resolved that the birth certificate does not qualify as the by the interested parties.
valid registration of birth in the civil register as envisioned
by law; otherwise, with an informant as shadowy as Emma In CALIMAG VS MACAPAZ, the children were claiming to be
Dano who was not identified as Karen’s parent or the the legitimate children of Macapaz, the owner of the property
physician or midwife who attended her birth, the allegedly sold to Calimag. This was sold 3 years after the
floodgates to filiation will be opened but both courts death of Macapaz. So, the children are claiming that the sale
declared that Karen was able to prove her filiation via was void, but that issue on whether the sale or void or not
open and continuous of the status of a legitimate child. was not put in issue. Rather, what was put in issue where the
Karen was 1.) allowed to bear their family name legal standing of the children whether they can really file this
GERONIMO; 2.) they supported her and sent her to school petition for annulment of sale because according to Calimag,
paying for her tuition fees and other expenses; 3.) she was they are not the children of Macapaz. As proof, the children
the beneficiary of the burial benefits of Caridad before the presented only their birth certificates where it appeared
GSIS; 4.) after Rufino’s death, caridad, applied for and was therein the date of the marriage and the age of the parents.
appointed guardian of the person and property of According to the court, it is sufficient because while Calimag
respondent; and 5.) Karen and Caridad executed an stated that it was only the mother who signed the birth
extrajudicial settlement of Rufino’s estate on the basis that certificate because according to the petitioner, it should be
they are Rufino’s heirs. signed by both parents, but the SC said that it is only true
when filiation is illegitimate and the father recognizes the
Before the SC, petitioner argues that secondary evidence child and thus, the father should the birth certificate. But, if
may be admitted only in a direct action under Article 172 the child is claiming that he is the legitimate child of both
(Family Code) because the said provision of law is meant parents, then it is sufficient that only one of the parents would
to be instituted as a separate action, and proof of filiation sign the birth certificate, as in the case at bar.
cannot be raised as a collateral issue as in the instant case
which is an action for annulment of document and Calimag vs. Heirs of Silvestra N. Macapaz,
recovery of possession. 791 SCRA 620, G.R. No. 191936 June 1, 2016

HELD: Petitioner is correct that proof of legitimacy under Civil Law; Filiation; While it is true that a person’s
Article 172, FC or illegitimacy under Article 175, FC, legitimacy can only be questioned in a direct action
should only be raised in a direct and separate action seasonably filed by the proper party, as held in Spouses
instituted to prove the filiation of a child. Fidel v. Hon. CA, et al., 559 SCRA 186 (2008), the
Supreme Court (SC) deems it necessary to pass upon the
What petitioner failed to recognize, however, is that the respondents’ relationship to Silvestra so as to
procedural rule is applicable only to actions where the determine their legal rights to the subject property.—
legitimacy – or illegitimacy – of a child is at issue. This While it is true that a person’s legitimacy can only be
situation does not obtain in the case at bar. questioned in a direct action seasonably filed by the
proper party, as held in Spouses Fidel v. Hon. CA, et al., 559
In the instant case, the filiation of a child –herein SCRA 186 (2008), this Court however deems it necessary
respondent- is not at issue. Petitioner does not claim that to pass upon the respondents’ relationship to Silvestra so
respondent is not the legitimate child of his deceased as to determine their legal rights to the subject property.
brother Rufino and his wife Caridad. What he alleges is Besides, the question of whether the respondents have the
that Karen is not the child of the deceased spouses at all. legal capacity to sue as alleged heirs of Silvestra was
among the issues agreed upon by the parties in the
Based on the evidence on record, all proof points to the pretrial.
conclusion that Karen is not the child of the deceased
spouses. A mere cursory reading of the birth certificate Canonical Certificate of Marriage; A canonical
would show that it was tampered specifically on the certificate of marriage is not a public document.—A
entries pertaining to the date of birth of Karen and the canonical certificate of marriage is not a public document.
informant. Reyes, a representative of the NSO, confirmed As early as in the case of United States v. Evangelista, 29
that the entries on the date of birth and the signature of Phil. 215 (1915), it has been settled that church registries
the informant are alterations of the birth certificate which of births, marriages, and deaths made subsequent to the
rendered the document questionable. Even the promulgation of General Orders No. 68 and the passage of
respondent herself did not offer any evidence to explain Act No. 190 are no longer public writings, nor are they
such irregularities on her birth certificate. kept by duly authorized public officials. They are private
writings and their authenticity must therefore be proved
The concurrence of the secondary evidence relied upon by as are all other private writings in accordance with the
both courts a quo does not sufficiently establish the crucial rules of evidence. Accordingly, since there is no showing
fact that respondent is indeed a child of the deceased that the authenticity and due execution of the canonical
spouses. The mere registration of the child in his/her certificate of marriage of Anastacio, Sr. and Fidela was
birth certificate as the child of the supposed parents is duly proven, it cannot be admitted in evidence.
not a valid adoption, does not confer upon the child
the status of an adopted child and the legal rights of Same; Same; Same; Jurisprudence teaches that the fact
such child, and even amounts to simulation of the child’s of marriage may be proven by relevant evidence other
birth or falsification of his/her birth certificate, which is a than the marriage certificate.—It is well-settled that
public document (Benitez-Badua v. CA, 229 S 468). It is other proofs can be offered to establish the fact of a
well-settled that a record of birth is merely prima facie solemnized marriage. Jurisprudence teaches that the fact
evidence of the facts contained therein. It is not conclusive of marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person’s birth

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certificate may be recognized as competent evidence of


the marriage between his parents. Thus, in order to prove Opposition alleged that the documents presented by the
their legitimate filiation, the respondents presented their plaintiffs to sustain the complaint were spurious
respective Certificates of Live Birth issued by the National
Statistics Office where Fidela signed as the Informant in
item no. 17 of both documents. At the center of the present controversy are the
documents executed by Louis evidencing his voluntary
Same; Same; Same; Certificate of Live Birth; A recognition of Teodoro and Ernesto as his illegitimate
certificate of live birth is a public document that children. The petitioner, in an effort to oppose the judicial
consists of entries (regarding the facts of birth) in approval of Teodoro and Ernesto's status as illegitimate
public records (Civil Registry) made in the performance children, mainly argued that the subject documents are
of a duty by a public officer (Civil Registrar).—“A spurious.
certificate of live birth is a public document that consists
of entries (regarding the facts of birth) in public records HELD:
(Civil Registry) made in the performance of a duty by a The legitimate filiation of a child may be established by
public officer (Civil Registrar).” Thus, being public any of the following:
documents, the respondents’ certificates of live birth are (1) The record of birth appearing in the civil
presumed valid, and are prima facie evidence of the truth register or a final judgment; or
of the facts stated in them. “Prima facie evidence is defined (2) An admission of legitimate filiation in a public
as evidence good and sufficient on its face. Such evidence document or a private handwritten instrument
as, in the judgment of the law, is sufficient to establish a and signed by the parent concerned.
given fact, or the group or chain of facts constituting the
party’s claim or defense and which if not rebutted or In the absence of the foregoing evidence, the legitimate
contradicted, will remain sufficient. filiation shall be proved by:
(1) The open and continuous possession of the
Civil Law; Filiation; Under Section 5 of Act No. 3753, the status of a legitimate child; or
declaration of either parent of the new-born legitimate (2) Any other means allowed by the Rules of Court
child shall be sufficient for the registration of his birth and special laws.[25]
in the civil register, and only in the registration of birth
of an illegitimate child does the law require that the These requirements likewise apply to establish the
birth certificate be signed and sworn to jointly by the filiation of illegitimate children.[26] In order to cast doubt
parents of the infant, or only by the mother if the father as to the authenticity of the documentary evidence
refuses to acknowledge the child.—Verily, under Section presented by Ernesto, the petitioner purported that the
5 of Act No. 3753, the declaration of either parent of the circumstances surrounding the execution and
new-born legitimate child shall be sufficient for the notarization of the said documents are highly suspicious
registration of his birth in the civil register, and only in the thereby warranting the overturn of the presumption of
registration of birth of an illegitimate child does the law regularity in favor of these documents. The petitioner
require that the birth certificate be signed and sworn to claimed that during the execution and notarization of the
jointly by the parents of the infant, or only by the mother documents, Louis could still write, rendering incredible
if the father refuses to acknowledge the child the mere affixing of his thumbprints to the contested
documents.[27] However, Ernesto testified before the RTC
SAN AGUSTIN VS SALES is more on Succession. Is that Louis was no longer capable of writing his name as he
thumbmark sufficient as signature? was already blind and bedridden at the time he affixed his
thumb mark to the document dated November 11, 1980.
Zoleta-San Agustin vs. Sales, The witnesses to the document were Margarita Almeda,
801 SCRA 683, G.R. No. 189289 August 31, 2016 the hairdresser of Louis' sister, and Romeo Gadones,
Teodoro's acquaintance.[28]A thumb mark has been
FACTS: On March 14, 1994, brothers Teodoro Sales repeatedly considered as a valid mode of signature. The
(Teodoro) (now deceased) and Ernesto Sales (Ernesto) Court, in the case of Dr. Yason v. Arciaga,[29] held that a
filed an action for the judicial approval of their recognition signature may be made by a person's cross or mark. [30]
as the illegitimate children of the late Louis C. Fernandez
(Louis) and his common-law wife named Epitacia Sales The other inconsistencies cited by the petitioner are of no
(Epitacia) who was a house helper in the Fernandez importance and insufficient to overcome the presumption
household. of regularity in favor of the notarized documents. A
notarized document is a public document and as such it
Louis[5] and his legal wife, Marie Louise Fernandez (Marie enjoys the presumption of regularity which can only be
Louise)[6] (Spouses Fernandez), a French national, did not overthrown by clear and convincing evidence.[32] It serves
have any child. According to the plaintiffs, Louis formally as a prima facie evidence of the truth of the facts stated
recognized them as his children by Epitacia in two public therein and a conclusive presumption of its existence and
documents bearing his thumb marks, viz: due execution.[33] The bare allegations of the petitioner
(1) a notarized document dated November 11, cannot qualify as clear and convincing evidence to
1980 jointly executed by Louis and Epitacia overturn such presumption.
formally recognizing the plaintiffs as their
children; and The petitioner maintained that the real father of Teodoro
(2) a document solely executed by Louis on and Ernesto is Corpus. She presented various evidence
December 2, 1980, dominated as like school report card and death certificate wherein
Acknowledgement of Children.[7] Teodoro's surname followed that of Corpus. The use of
Corpus' surname by Teodoro does not in itself negate the

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illegitimate filiation of Teodoro and Ernesto. As correctly 3. the child was not sired by the father, but by
observed by the CA, Louis' existing marriage to Marie another man
Louise must have prevented him from making any
declaration that would have exposed his relationship with
Epitacia. The use of Louis' surname by his children during TITLE VII. - ADOPTION
the lifetime of Marie Louise would run counter to his
intention to cover such relationship. It is no less than the We already have three Laws on Adoption.
putative father who voluntary recognized that Teodoro 1. Family Code – which all provisions thereof are
and Ernesto are his illegitimate children. It is emphatically repealed by RA 8552 except Articles 190.
underscored that it is the law and only the law that 2. RA 8043 Inter-Country Adoption Act of 1995
determines who are the legitimate or illegitimate children 3. RA 8552 Domestic Adoption Act of 1998
for one's legitimacy or illegitimacy cannot ever be 4. RA 9523 An Act requiring Certification of the
compromised.[34] DSWD to declare the child legally available for
adoption
The petitioner sought the conduct of DNA Testing to
resolve the issue of paternity. However, the RTC already Art. 190 of the Family Code refers to the distribution of the
arrived at a definitive conclusion that Teodoro and estate of the adopted child who dies intestate.
Ernesto are the illegitimate children of the deceased Louis
rendering the petitioner's request for DNA Testing Domestic Adoption Act of 1998 or RA 8552
immaterial.  Under the Family Code, aliens are not allowed to
adopt.
 The relative by affinity are not included in the
Chapter 4. - Legitimated Children family code.
 There is that requirement that if one is married and
What used to be required at the time of the conception, there desires to adopt, it must be a joint adoption. The
must be no impediment of the parents of the child. And the exception now under RA 8552 included that even if
disqualification respecting the age of the parties had already the adopting spouse is still married, but legally
been removed by virtue of RA 9858 because prior to the separated, so there is no more need for a joint
enactment of this law, non-age of the parents at the time of adoption.
the conception of the child prevents the child from being  RA 8552, minor children will be adopted subject to
legitimized by the parent’s subsequent marriage. But RA the exceptions provided for by law.
9858 had amended Art. 177.  While aliens could adopt under RA 8552, it requires
that he or she must be continuously residing in the
RA 9858 – AN ACT PROVIDING FOR THE LEGITIMATION Philippines prior to and immediately after the
OF CHILDREN BORN TO PARENTS BELOW MARRYING grant of the petition for at least 3 continuous years,
AGE but such period may be shortened, if the adoptive
Amended Article 177 of the Family Code that now reads parent is a former Filipino citizen
 only the child may rescind the adoption, the
Art. 177. Children conceived and born outside of wedlock remedy of the adopting parent is merely to
of parents, who at the time of the conception of the disinherit the child for causes mentioned under the
former, were not disqualified by any impediment to law on succession
marry each other, or were so disqualified only because  requires the written consent of the adoptive
either or both of them were below eighteen (18) years parent’s children over 10 years of age
of age, may be legitimated.  if the child to be adopted is already married, then
the spouse of such child must give consent
 the age difference between the adopted child and
Art. 178 Legitimation shall take place by a subsequent
the adopting parent must be 16 years
valid marriage between parents. The annulment of a
 file petition in a Family Court
voidable marriage shall not affect the legitimation.
Inter-Country Adoption Act of 1995 or RA 8043
Art. 179. legitimated children shall enjoy the same  this only applies to Filipinos permanently residing
rights as legitimate children. abroad or aliens who cannot qualify under RA 8552
 this is the last resort. It must be shown that the
Art. 180. The effects of legitimation shall retroact to the child cannot be adopted locally.
time of the child’s birth.  Aside from the 16 years difference provided in
8552, RA 8043 further requires that the adopting
parent must be atleast 27 years of age
Art. 181. The legitimation of children who died before the
 it is not sufficient that the child to be adopted is a
celebration of the marriage shall benefit their
minor, the child must be below 15 years old
descendants.
 the consent of the adopting parent’s children over
10 years of age must not only be in writing, but it
Art. 182. Legitimation may be impugned only by those must be in a form of a sworn statement
who are prejudiced in their rights, within five years from  the adopting parent may choose to file not only
the time their cause of action accrues. before the Family Court of the Philippines, but also
in the Inter-Country Adoption Board where the
Grounds: adopting parent is residing.
1. subsequent marriage is void or
2. that the parents were disqualified to marry

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DOMESTIC INTER-COUNTRY his/her national


ADOPTION ADOPTION law;
(R.A. 8552) (R.A. 8043)
6. Is in a position to
provide the proper
An alien or a
care and support
Filipino citizen
and to give the
permanently
necessary moral
residing abroad
values and example
may file an
to all his children,
application for
including the child
inter-country
(a) Any Filipino to be adopted;
adoption of a
citizen of legal age,
Filipino child if
in possession of full 7. Agrees to uphold
he/she:
civil capacity and the basic rights of
legal rights, of good the child as
moral character, 1. Is at least twenty-
embodied under
has not been seven (27) years of
Philippine laws, the
convicted of any age and at least
U.N. Convention on
crime involving sixteen (16) years
the Rights of the
moral turpitude, older than the child
Child, and to abide
emotionally and to be adopted, at
by the rules and
psychologically the time of
regulations issued
capable of caring application unless
to implement the
for children, at the adopter is the
provisions of this
least sixteen (16) parent by nature of
Act;
years older than the child to be
the adoptee, and adopted or the
spouse of such 8. Comes from a
who is in a position
parent; country with whom
to support and care
the Philippines has
Who may for his/her
diplomatic
adopt children in keeping 2. If married,
relations and
with the means of his/her spouse
whose government
the family. must jointly file for
maintains a
the adoption;
similarly
The requirement of
authorized and
sixteen (16) year 3. Has the capacity accredited agency
difference between to act and assume and that adoption is
the age of the all rights and allowed under
adopter and responsibilities of his/her national
adoptee may be parental authority laws; and
waived when the under his national
adopter is the laws, and has
biological parent of 9. Possesses all the
undergone the
the adoptee, or is qualifications and
appropriate
the spouse of the none of the
counseling from an
adoptee's parent; disqualifications
accredited
provided herein
counselor in
and in other
his/her country;
applicable
Philippine laws.
4. Has not been
convicted of a
crime involving QUALIFIED. Any
moral turpitude; alien possessing
Are aliens
the same
qualified QUALIFIED
5. Is eligible to qualifications as
to adopt?
adopt under above stated for
Filipino nationals

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may adopt, (ii) one who seeks


provided: to adopt the
legitimate
That his/her son/daughter of
country has his/her Filipino
diplomatic spouse; or
relations with the
Republic of the (iii) one who is
Philippines, that married to a
he/she has been Filipino citizen and
living in the seeks to adopt
Philippines for at jointly with his/her
least three (3) spouse a relative
continuous years within the fourth
prior to the filing of (4th) degree of
the application for consanguinity or
adoption and affinity of the
maintains such Filipino spouse; or
residence until the .
adoption decree is (c) The guardian
entered, that with respect to the
he/she has been ward after the
certified by his/her termination of the
diplomatic or guardianship and
consular office or clearance of
any appropriate his/her financial
government accountabilities.
agency that he/she
has the legal Husband and wife
capacity to adopt in shall jointly adopt,
his/her country, except in the
and that his/her following cases:
government allows
the adoptee to (i) if one spouse
enter his/her seeks to adopt the
country as his/her legitimate
adopted son/daughter of
son/daughter: the other; or

Provided, Further, (ii) if one spouse


That the seeks to adopt
requirements on his/her own
residency and illegitimate
certification of the son/daughter:
alien's qualification Provided,
to adopt in his/her However, that the
country may be other spouse has
waived for the signified his/her
following: consent thereto; or

(i) a former (iii) if the spouses


Filipino citizen are legally
who seeks to adopt separated from
a relative within each other.
the fourth (4th) In case husband
degree of and wife jointly
consanguinity or adopt, or one
affinity; or spouse adopts the
illegitimate

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son/daughter of death of said


the other, joint parent(s).
parental authority
shall be exercised Husband and wife
by the spouses. shall jointly adopt,
except in the
following cases:
Are Only after the
guardians termination of the (i) if one spouse
allowed to guardianship and Silent seeks to adopt the
adopt their clearance of his legitimate
wards? accountabilities son/daughter of
the other; or
(a) Any person
below eighteen (ii) if one spouse
(18) years of age seeks to adopt
who has been his/her own
administratively or illegitimate
judicially declared son/daughter:
available for
adoption; Rules with Provided,
respect to However, that the
(b) The legitimate adoption other spouse has Must jointly file for
son/daughter of by signified his/her adoption
one spouse by the husband consent thereto; or
other spouse; and wife
(iii) if the spouses
(c) An illegitimate are legally
son/daughter by a Only a legally free
separated from
qualified adopter child.
each other.
to improve his/her
status to that of A legally free child In case husband
legitimacy; is one below 15 and wife jointly
years old unless adopt, or one
(d) A person of sooner spouse adopts the
Who may
legal age if, prior to emancipated by illegitimate
be
the adoption, said law and who has son/daughter of
adopted?
person has been been voluntarily or the other, joint
consistently involuntarily parental authority
considered and committed to the shall be exercised
treated by the Department, in by the spouses.
adopter(s) as accordance with
his/her own child the Child and Youth
since minority; Welfare Code.
(a) The adoptee, if
(e) A child whose ten (10) years of
adoption has been age or over;
previously
For the biological
rescinded; or (b) The biological
or adopted
parent(s) of the
Who shall children above 10
(f) A child whose child, if known, or
give years of age, the
biological or the legal guardian,
consent in written consent
adoptive parent(s) or the proper
writing must be in the form
has died: Provided, government
of a sworn
That no instrumentality
statement.
proceedings shall which has legal
be initiated within custody of the
six (6) months child;
from the time of

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(c) The legitimate severed and the


and adopted same shall then be
sons/daughters, vested on the
ten (10) years of adopter(s).
age or over, of the
adopter(s) and 2. The adoptee
adoptee, if any; shall be considered
the legitimate
(d) The illegitimate son/daughter of
sons/daughters, the adopter(s) for
ten (10) years of all intents and
age or over, of the purposes and as
adopter if living such is entitled to
with said adopter all the rights and
and the latter's obligations
spouse, if any; and provided by law to
(e) The spouse, if legitimate
any, of the person sons/daughters
adopting or to be born to them
adopted. without
discrimination of
any kind. To this
end, the adoptee is
Either with the
entitled to love,
Philippine
guidance, and
Regional Trial
support in keeping
Court (Family
with the means of
Court) having
the family.
jurisdiction over
the child, or with
the Board, through 3. In legal and
an intermediate intestate
agency, whether succession, the
governmental or adopter(s) and the
an authorized and adoptee shall have
Where to reciprocal rights of
accredited agency,
file Family Courts succession without
in the country of
application distinction from
the prospective
adoptive parents, legitimate filiation.
which application However, if the
shall be in adoptee and
accordance with his/her biological
the requirements parent(s) had left a
as set forth in the will, the law on
implementing testamentary
rules and succession shall
regulations to be govern.
promulgated by
the Board 4. If the adopter
dies prior to the
1. Except in cases decision of the
where the adoption, the
biological parent is adoption shall be
the spouse of the issued.
Effects of
adopter, all legal Silent
adoption
ties between the
biological
parent(s) and the
adoptee shall be

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Only the adoptee incapacitated. The


may ask for reciprocal rights
rescission. and obligations of
Adoption, being in the adopter(s) and
the best interest of the adoptee to each
the child, shall not other shall be
Rescission
be subject to extinguished.
of the
rescission by the Silent
decree of
adopter. However, The court shall
adoption
the adopter may order the Civil
disinherit the Registrar to cancel
adoptee for causes the amended
provided in Article certificate of birth
919 of the New of the adoptee and
Civil Code. restore his/her
original birth
Upon petition of
certificate.
the adoptee, with
the assistance of
the Department if a Succession rights
minor or if over shall revert to its
eighteen (18) years status prior to
of age but is adoption, but only
incapacitated, as as of the date of
guardian/counsel, judgment of
the adoption may judicial rescission.
be rescinded on Vested rights
any of the following acquired prior to
grounds judicial rescission
Grounds committed by the shall be respected.
for adopter(s): (a)
Silent
Rescission repeated physical All the foregoing
and verbal effects of rescission
maltreatment by of adoption shall be
the adopter(s) without prejudice
despite having to the penalties
undergone imposable under
counseling; (b) the Penal Code if
attempt on the life the criminal acts
of the adoptee; (c) are properly
sexual assault or proven.
violence; or (d)
abandonment and Supervised trial No child shall be
failure to comply custody for at least matched to a
with parental 6 months. The foreign adoptive
obligations. court may motu family unless it is
proprio or upon satisfactorily
If the petition is motion of any shown that the
granted, the party, reduce the child cannot be
parental authority trial period if it adopted locally.
of the adoptee's Others finds the same to
biological be in the best
The adoptive
Effects of parent(s), if interest of the
Silent parents, or any of
Rescission known, or the legal adoptee. For alien
them, shall
custody of the adopters, he must
personally fetch
Department shall complete the 6-
the child in the
be restored if the month trial
Philippines.
adoptee is still a custody except
minor or those exempted

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from presenting The governmental parents were not in the country. So, the child stayed with
the biological parent and committed act or omission that
residency agency or the
gave rise to the payment of damages. So the biological
requirement as authorized and parents now claimed that they cannot be made liable for
well as certification accredited agency the child ceases to be their child having been legally
of alien’s in the country of adopted.
qualification. the adoptive
parents which filed HELD: SC said that“we do not consider that retroactive
the application for effect may be given to the decree of adoption so as to
Decree of adoption impose liability upon the adopting parents accruing at a
shall be effective as inter-country
time when the adopting parents had no actual or physical
of the date of the adoption shall be custody over the adopted child. Retroactive effect may
original petition responsible for the perhaps be given to the granting of the petition for
was filed. This shall trial custody and adoption where such is essential to permit the accrual of
also apply in case care of the child. some benefit or advantage in favor of the adopted child.
The trial custody Put a little differently, no presumption of parental
the petitioner dies
dereliction on the part of the adopting parents could have
before the issuance shall be for a
arisen since the adopted child was not in fact subject to
of the decree of period of 6 months their control at the time the tort was committed.”
adoption to protect from the time of
the interest of the the placement. Lahom vs. Sibulo
adoptee. Only after the lapse (July 14, 2003)
of the period of the
trial custody shall FACTS: The parent wishes to rescind the decree of
No binding adoption because according to her, the child did not use
decree of adoption
commitment to an the surname and unfortunately however, she filed the
be issued in the
adoption plan shall petition when RA 8552 had already taken effect,
said country prohibiting adoptive parents from rescinding the
be permitted
before the birth of decree of adoption since now, it is solely the prerogative
of the adoptive child.
the child.
HELD: the SC held that RA 8552 had abrogated and
An amended repealed the right of the adopter under the Civil Code
certificate of birth and the Family Code to rescind a decree of adoption.
shall be iisued by The adopter while barred from severing the legal ties of
adoption, can always for valid reasons caused the
the civil registry.
forfeiture of certain benefits. For instance, upon the
The original grounds recognized by law, an adopter may deny to
certificate of birth an adopted child his legitime and, by a will and
shall be stamped testament, may freely exclude him from having a
“cancelled”. The share in the disposable portion of his estate.
new birth
certificate shall not
LANDINGIN vs. REPUBLIC
bear any notation
June 27, 2006
that it is an
amended issue. FACTS: Minors Elaine, Elma, and Eugene were the
children of Amelia and the late Manuel Ramos. After
CASES: Manuel’s death, the children were left under the custody
Tamargo vs CA of their paternal grandmother because Amelia left for
209 SCRA 518 Italy. When the paternal grandmother died, the children
were taken cared of by a paternal uncle. Landingin, the
FACTS: This case speaks of the liability of the adopting 57-year old aunt and sister of the late Manuel and an
parent. Because take note that under sec. 13 of RA 8552 American citizen residing in Guam, now desires to adopt
the 3 children. In her petition, she alleged that the mother
Section 13-“x x x x, and that the adoption would of the children had abandoned them and had not
redound to the best interest of the adoptee, a decree communicated with her children neither with her in-
of adoption shall be entered which shall be laws. In fact Amelia has already remarried and has 2
effective as of the date the original petition was children with her 2nd husband. That petitioner and her
filed. This provision shall also apply in case the other siblings were the ones financially supporting the
petitioner dies before the issuance of the decree of children. That she is already a widow and living alone
adoption to protect the interest of the adoptee because all her children are already married and are
gainfully employed. They have given their consent in
And even if, the adopting parent dies before the issuance writing to the adoption, and also promised to help her in
of the decree, the child is already deemed to be the supporting the children financially. Likewise, the
adopted child of the adopting parent who died. In this paternal uncle where the children are currently staying
case, the court already issued a decree of adoption. also signified his willingness and commitment to support
Unfortunately, at the time of the issuance, the adopting the minors while in petitioner’s custody.

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Thus, Amelia left for Italy without intention of


The Child Study Report submitted by Social Welfare abandoning her children, or to permanently sever their
Officer Pagbilao stated that the surviving parent mother-child relationship. She was merely impelled to
consented to the adoption as evidenced by the Affidavit leave the country by financial constraints. Yet, even while
of Consent executed by the children’s mother Amelia as abroad, she did not surrender or relinquish entirely her
the mother came home on May 2, 2002 and stayed for 3 motherly obligations of rearing her children to her now
weeks. The minors likewise, consented to the proposed deceased mother-in-law.
adoption. Pagbilao then recommended that the children
be adopted by petitioner. During the trial however, Petitioner failed to offer in evidence Pagbilao’s report
Landingin failed to present Pagbilao as witness and also and the joint affidavit of consent purportedly executed by
failed to adduce documentary evidence that, indeed, her children; the authenticity of which she, likewise,
Amelia assented to the adoption. failed to prove. As to her financial capacity, the Report
stated that petitioner is 57 years old, employed on a part-
ISSUES: time basis as a waitress, earning $5.15 an hour and tips
1. Whether petitioner is entitled to adopt the of around $1,000.00 per month. That she owns her house
minors without the written consent of the at Quitugua Subd., Yigo, Guam but the same is still being
biological mother? amortized. Given these limited facts, it is doubtful
2. Whether or not the affidavit of consent whether petitioner will be able to sufficiently handle the
purportedly executed by petitioner’s children financial aspect of rearing the 3 children in the US. While
sufficiently complies with the law? and she claims that she has the financial support and backing
3. Whether or not petitioner is financially capable of her children, the OSG is correct in stating that the
of supporting the adoptees? ability to support the adoptees is personal to the adopter,
as adoption only creates a legal relation between the
HELD: former and the latter. Moreover, no proof was adduced
Section 9 of RA 8552 (Domestic Adoption Act of 1998) to prove her allegation that her children and siblings are
provides: Whose consent is necessary to the adoption: willing to support the minors herein.
x x x.
(b) The biological parents of the child, if known Reasons for the Denial discussed by Ma’am G:
xxx. Petitioner failed to present the DSWD officer Pagdilao who
conducted the interview of the children’s mother. Moreover,
The general requirement of consent and notice to the the petitioner cannot be said to be financially capable of
natural parents is intended to protect the natural supporting the children who are minors as she was only
parental relationship from unwarranted interference by earning about 5 dollars and 15 cents per hour. Her house is
interlopers, and to insure the opportunity to safeguard also being amortized. Also, support is personal to the person
the best interest of the child. obliged to give support. Therefore, the promise of the
petitioner’s children to provide support for the children to be
Clearly, the written consent of the natural parents is adopted cannot be considered by the court. Likewise, the
indispensable for the validity of a decree of adoption. In consent of the children were not in the proper form because
this case, petitioner failed to submit the written consent under RA 8043, it must be in the form of a sworn statement.
of Amelia to the adoption. Contention as to abandonment of the biological mother must
also fail because the eldest told the DSWD Officer during the
Petitioner’s argument that her consent is no longer interview that they maintained communication with the
necessary because she left for Italy and never came back, mother and support was also continued
hence, Amelia had abandoned the children and it was just
by twist of fate that after 12 years Amelia was on vacation IN RE: PETITION FOR ADOPTION OF
and was able to meet Pagbilao, must be rejected. If, as MICHELE P. LIM and MICHAEL JUDE LIM
claimed, that the biological mother had abandoned them, 588 SCRA 98 (May 21, 2009) 2012 Bar
she should have adduced the written consent of the
children’s legal guardian. Merely permitting the child to FACTS: Michelle was given to the spouses Lim in 1977
remain for a time undisturbed in the care of others does while Michael was delivered in 1983. They were only
not constitute abandonment. To dispense with the about 11 days old when they were given to the spouses
requirement of consent, the abandonment must be Lim who had them registered as if they were their own
shown to have existed at the time of adoption. children. They were reared and cared for and were sent
to exclusive schools and used the surname “Lim” in all
Here, petitioner relied solely on her testimony and that their school records and documents. In 1988, the
of Elaine, the eldest of the 3, to prove that Amelia husband died and the surviving spouse entered into
abandoned them. another marriage with an American citizen, Olario.
Monina (the surviving spouse) then filed two separate
The Home Study Report tends to show otherwise. Elaine petitions to adopt the children by availing of the
during the interview said that “in serious problems she amnesty given under RA 8552 or the Domestic
already consult her mother and petitioner-aunt.” And Adoption Act of 1998 to those individuals who
while petitioner and other paternal relatives are simulated the birth of the child. Both children, who are
continuously providing for most of their needs and already of legal age, gave their consent including
education, Amelia would also send financial support Michelle’s husband to the adoption. Olario likewise
ranging from P10,000.00 to P15,000.00 a month through executed an affidavit of consent for the adoption of
her parents and share P3,000.00 to P5,000.00 thereof Michelle and Michael. The lower court denied the
with the children. petition because inasmuch as Monina has remarried,

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her petition should have been jointly filed with her new by Atty. Jose Castro. It was alleged that they were Castro’s
husband. illegitimate children with Lilibeth Gregorio, Jose’s alleged
lover. Jose was, at the time of the adoption, separated in
ISSUE: Whether Monina, who has remarried, can singly fact from his spouse Rosario who was living in Manila
adopt? together with their child Joaane.

HELD: It is undisputed that at the time the petitions for Rosario learned of the adoption in 2006 or 6 years later.
adoption were filed, petitioner had already remarried. On October 18, 2007 Rosario and Joanne filed a petition
She filed the petition by herself, without being joined by for annulment of judgment seeking to annul the October
her husband Olario. The law is explicit. Section 7, Article 16, 2000 decision approving Jed and Regine’s adoption
III of RA 8552 reads “Husband and wife shall jointly on the following grounds: 1.) Rosario’s affidavit of
adopt subject to the exceptions. The word “shall” means consent was fraudulent as she never gave her consent to
that joint adoption by the husband and the wife is the adoption; 2.) Jed and Regina’s birth certificates
mandatory. This in consonance with the concept of joint showed sets of information. In one set it showed Jose as
parental authority over the child which is the ideal father. In another, it indicated Larry Rentegrado (Jose’s
situation. As the child to be adopted is elevated to the alleged lover as Jose is said to be a homosexual) as father
level of a legitimate child, it is but natural to require the and Jed and Regina are Larry and Lilibeth’s legitimate
spouses to adopt jointly. The rule is to insure harmony children; 3.) no notice was given to Rosario; and 4.)
between the spouses. Joanne’s consent was not obtained/secured as she was
more than 10 years old at the time of the adoption. The
Neither would the exceptions apply. 1st the children are petition for annulment was filed a year after Jose’s death.
not the legitimate children of the petitioner or of her
husband; 2nd the children are not the illegitimate Jed and Regina argued that petitioners were not deprived
children of the pettioner ; and 3rd, petitioner and Olario of their day in court because 1.) their interest was amply
are not legally separated from each other. protected by the appearance of the Solicitor General thru
its deputized prosecutor; 2.) there was constructive
There are also certain requirements that Olario must notice thru publication once a week for 3 consecutive
comply being an American citizen. None of the weeks in a newspaper of general circulation which serves
qualifications were shown and proved during the trial. as notice not only to them but to the whole world; and 3.)
Neither are the requirements on residency and they are not indispensable parties.
certification waivable as the children are not relatives
within the 4th degree of consanguinity or affinity of SC: RA 8552 applies to the proceedings. It requires that
petitioner or Olario. the adoption by the father of a child born out of wedlock
obtain not only the consent of his wife but also the
It is true that when the child reaches the age of consent of his legitimate children. As a general rule,
emancipation- that is, when he attains the age of husband and wife must jointly file a petition for adoption.
majority or 18 years of age-emancipation terminates The law provides several exceptions to the general rule,
parental authority over the person and property of the as in a situation where a spouse seeks to adopt his/her
child, who shall then be qualified and responsible for all own children born out of wedlock. In this instance, joint
acts of civil life. However, parental authority is merely adoption is not necessary. However, the spouse seeking
just one of the effects of legal adoption. to adopt must first obtain the consent of his/her spouse.

Even if emancipation terminates parental authority, the In the absence of any decree of legal separation or
adoptee is still considered the legitimate child of the annulment, Jose and Rosario remained legally married
adopter with all the rights of a legitimate child as despite their de facto separation. His submission of a
provided for under Article 174 of the Family Code. fraudulent affidavit of consent in Rosario’s name cannot
Conversely, the adoptive parents shall, with respect to be considered compliance of the requisites of the law.
the adopted child, enjoy all the benefits to which
biological parents are entitled such as support and Likewise, Joanne’s written consent who was over 10
successional rights. years old at the time of the adoption proceedings, was
necessary for the adoption to be valid. it ensures
While petitioner insists that joint adoption is no longer harmony among the prospective siblings.
possible because Olario has filed a case for dissolution
of his marriage to petitioner before the Los Angeles The badges of extrinsic fraud are present in this case 1.)
Superior Court, the filing of said case is of no moment. It the place where the petition for adoption was filed has no
is not equivalent to a decree of dissolution of marriage. relation to the parties. Jose is from Laoag, Lilibeth and
until and unless there is a judicial decree for the Larry are from Brgy. 6, Laoag, Jed and Regina were born
dissolution of the marriage between Monina and Olario, in San Nicolas, Ilocos Norte while Rosario and Joanne are
the marriage still subsists residents of Paranaque, Metro Manila; 2.) using the
process of delayed registration, Jose was able to secure
There must be joint adoption as the marriage is not yet birth certificates of Jed and Regine showing him as father
severed. and Larry as the informant. Worse is that 2 different sets
of fraudulent certificates were procured: a.) one showing
CASTRO v. GREGORIO Jose and Lilibeth were married on December 4, 1986 in
738 S 415 Manila, and b.) another wherein the portion for the
mother’s name was not filled in at all. The birth
FACTS: Siblings Jose Maria Jed and Ana Maria Regina certificates of Jed and Regina from the NSO, however,
both surnamed Gregorio were adopted in October 2000 show that their father is Larry Rentegrado. These

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certificates are clear contradiction to the birth ISSUES:


certificates submitted by Jose to the adoption court; and 1. 1, If the adoptive parent dies during the
3.) Jose blatantly lied to the court when he declared that minority of the adopted child, is parental
he and his wife Rosario were childless, to the prejudice of authority automatically reverted back to the
their child Joanne. biological parent or parent by nature?
2. May the biological parent still inherit from the
All these were made not only to induce the court in adopted child?
approving his petition, but also to prevent Rosario and
Joanne from participating in the proceedings or opposing HELD:
the petition. 1. Yes, under such circumstances, parental
authority should be deemed reverted back in
It was said there that the adopted children were the favor of the biological parents. To be sure
illegitimate children of the adopter with Lilibeth Gregorio. It reversion of parental authority in favor of the
turned out however, that they were children of Lilibeth from biological parents is not a novel concept.
Gregorio’s driver (who also happens to be his driver). So, Section 20 of RA 8552 on effects of rescission of
Castro (adopter) was a homosexual. The legal (estranged) adoption is applicable by analogy insofar as the
wife claimed that her affidavit of consent was fraudulently restoration of custody is concerned. While
obtained by Jose. Likewise, Joanne (adopted child) was there is a lacuna in the law as to which
already over 10 years of age at the time of the filing of the provision shall govern contingencies in all fours
petition for adoption. Thus, her consent in writing must also with the factual milieu of the instant petition;
be obtained which is a mandatory requirement. Likewise, nevertheless, WE are guided by the state
they were not furnished copies of the petition. policies behind RA 8552 wherein the
paramount consideration is the best interest of
Jet and Regina contends that their rights were protected by the child, which WE invoke to justify this
the appearance of the solicitor general. Likewise, there’s this disposition. It is after all, for the best interest of
publication of the petition for adoption which according to the child that someone will remain charged for
them is much better than personal service because it is notice his welfare and upbringing should his/her
to the whole world. However, according to the court, service adopter fail or is rendered incapacitated to
must be personal because it will give them the reasonable perform his duties as a parent at a time the
time within which whether to oppose the petition, present adoptee is still in his formative years, and, in the
their side whether they would appeal to the petition or not. absence, or in this case, death of the adopter, no
one else could reasonably be expected to
The proper remedy here is not rescission for adoption which perform the role of parent other than the
is only available to the adopted child, but it should be adoptee’s biological one. Thus, Cornelio’s death
annulment of judgment based on extrinsic fraud as they were at the time of John’s minority resulted in the
deprived of their day in court. restoration of petitioner’s parental authority
over the adopted child.
In BARTOLOME VS SSS, John and his sister were adopted by
their great grandfather. Less than 3 years after the decree of 2. Even though parental authority is severed by
adoption was granted, the adopter died. When John Colcol virtue of adoption, the ties between the adoptee
died, the biological mother wants to claim death benefits and the biological parents are not entirely
from the SSS. Here, the SC took note of the fact that at the eliminated. The biological parents, in some
time of the petition of the adopting parent, John Colcol was instances, are able to inherit from the adopted,
still a minor. So, by analogy, it applied sec. 20 (sic) of the as can be gleaned form Article 190 (2), Family
Family Code wherein there is now reversion of parental Code: “when the parents, legitimate or
authority from the adopting parent to the parent by nature. illegitimate, or legitimate ascendants of the
There’s also this argument raised by the SSS that the mother adopted concur with the adopter, they shall
ceases to be the heir of the child because of the adoption. But divide the entire estate xx.”
the SC cited Art. 190 (par. 2 and 6) of the Family Code.
While SSS benefits arising from the death of an SSS
BARTOLOME v. SSS covered employee do not form part of the estate of the
740 S 78 adopted child, the pertinent provision on legal or intestate
FACTS: John, then about 2 years old, and his sister were succession at least reveals the policy on the rights of the
adopted by their great grandfather Cornelio Colcol, biological parents and those by adoption vis-à-vis the
Bernardina Bartolome’s grandfather. While under the right to receive benefits from the adopted
employ of Scanmar Maritime on board the vessel Maersk The ruling of the Court in the case of REPUBLIC VS MILLER
Dansville, John met an accident that led to his untimely respecting adoption involves the question of what law will be
death. Childless and unmarried, Bernardina, John’s applied if a new law is passed respecting adoption.
biological mother and, allegedly, sole remaining
beneficiary filed a claim for death benefits under PD 626 REPUBLIC OF THE PHILIPPINES vs. CLAUDE A.
with the SSS but was denied by the latter stating that “x x MILLER and JUMRUS S. MILLER
x you are no longer considered as the parent of John Colcol G.R. No. 125932. April 21, 1999
as he was allegedly adopted by Cornelio Colcol x x x.”
The petitioners in this case were Americans. At that time
Cornelio Colcol died on October 26, 1987, or less than 3 they filed a petition for adoption, the law in effect was not
years since the decree of adoption on February 4, 1985 yet the Family Code. It was the Child and Youth Welfare
attained finality. Code which allows adoption by foreigners. While their
petition was pending before the court, the provisions of

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the Family Code had taken effect. According to the Under the laws on adoption, there is no such thing as right of
Solicitor General, the petition should be dismissed representation. While it may be true that the effect of
because foreigners are already disqualified to adopt under adoption says that “in legal and intestate succession, the
the Family Code. adopter and the adopted shall reciprocal rights in succession
without distinction from legitimate filiation”, the benefit of
The SC ruled that the law to be applied should be the law adoption does not extend to the relatives of the adopting
at the time that the petition for adoption was filed parent. Vice versa, it does not also extend to the relatives of
because it is a substantive right. A substantive right the adopted child.
cannot be taken away by the passage of a new law.
The benefit of adoption, because it is a legal fiction created by
From the FT: law, only extends to the adopting parent and the adopted
An alien qualified to adopt under the Child and Youth child. It cannot extend to their relatives, whether collateral or
Welfare Code, which was in force at the time of the filing of otherwise.
the petition, acquired a vested right which could not be
affected by the subsequent enactment of a new law
disqualifying him. TITLE VIII. - SUPPORT

Consequently, the enactment of the Family Code will not What does it comprise?
impair the right of respondents who are aliens to adopt a
Filipino child because the right has become vested at the Art. 194. Support compromises everything indispensable
time of filing of the petition for adoption and shall be for sustenance, dwelling, clothing, medical attendance,
governed by the law then in force. education and transportation, in keeping with the
financial capacity of the family.
As long as the petition for adoption was sufficient in form
and substance in accordance with the law in governance at The education of the person entitled to be supported
the time it was filed, the court acquires jurisdiction and referred to in the preceding paragraph shall include his
retains it until it fully disposes of the case. To repeat, the schooling or training for some profession, trade or
jurisdiction of the court is determined by the statute in force vocation, even beyond the age of majority. Transportation
at the time of the commencement of the action. Such shall include expenses in going to and from school, or to
jurisdiction of a court, whether in criminal or civil cases, and from place of work. (290a)
once it attaches cannot be ousted by a subsequent
happenings or events, although of a character which would Characteristics of Support (this was asked in the 2004 Bar
have prevented jurisdiction from attaching in the first Exam):
instance. 1. Purely personal;
2. Intransmissible;
Article 190 refers to the distribution of the estate of the 3. Not subject to execution or attachments;
adopted child when the adopted child dies intestate. 4. Never fixed because it is always subject to the
needs of the recipient, as well as to the financial
Art. 190. Legal or intestate succession to the estate of the capacity of the person obliged to give support;
adopted shall be governed by the following rules: 5. Reciprocal on those bound to support each other
1) Legitimate and illegitimate children and 6. Demandable by the time that it is needed;
descendants and the surviving spouse of the 7. Demandable even if the recipient is beyond the age
adopted shall inherit from the adopted, in of majority;
accordance with the ordinary rules of legal or 8. Demandable even if the recipient is already
intestate succession; married.
2) When the parents, legitimate or illegitimate, or
the legitimate ascendants of the adopted concur The Support mentioned in the Family Code refers to the
with the adopter, they shall divide the entire Legal Support. There is also what you call as Contractual
estate, one-half to be inherited by the parents or Support, where the excess thereof may be the subject of
ascendants and the other half, by the adopters; execution or attachment. Legal support is exempt from
3) When the surviving spouse or the illegitimate execution or attachment.
children of the adopted concur with the
adopters, they shall divide the entire estate in Who are those obliged to support each other?
equal shares, one-half to be inherited by the
spouse or the illegitimate children of the Art. 195. Subject to the provisions of the succeeding
adopted and the other half, by the adopters. articles, the following are obliged to support each other to
4) When the adopters concur with the illegitimate the whole extent set forth in the preceding article:
children and the surviving spouse of the 1) The spouses;
adopted, they shall divide the entire estate in 2) Legitimate ascendants and descendants;
equal shares, one-third to be inherited by the 3) Parents and their legitimate children and the
illegitimate children, one-third by the surviving legitimate and illegitimate children of the latter;
spouse, and one-third by the adopters; 4) Parents and their illegitimate children and the
5) When only the adopters survive, they shall legitimate and illegitimate children of the latter;
inherit the entire estate; and and
6) When only collateral blood relatives of the 5) Legitimate brothers and sisters, whether of full
adopted survive, then the ordinary rules of legal or half-blood (291a)
or intestate succession shall apply.

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As to #1 - The obligation to give support to the spouse is right to claim from the other obligors the share due from
based on marriage. It springs from the fact of marriage. them.

As to #3 – But remember that the support for the illegitimate When two or more recipients at the same time claim
children shall not be taken from the absolute community or support from one and the same person legally obliged to
the conjugal partnership. It can only be charged against the give it, should the latter not have sufficient means to
exclusive property of the parent obliged to provide support. satisfy all claims, the order established in the preceding
And even under the provisions of the conjugal partnership, article shall be followed, unless the concurrent obligees
support cannot be taken as advances because there must be should be the spouse and a child subject to parental
first a showing that all the responsibilities in Article 121 had authority, in which case the child shall be preferred.
been fully satisfied before it can be held liable for those (295a)
obligations not falling under Article 121. This is pursuant to The 2nd paragraph of Article 200 refers to 2 or more
Article 122 which provides for the charges against the recipients and generally, it is the spouse who should be given
conjugal partnership. preference. However, if the other who is entitled to receive
support is a child still unemancipated or a minor child, then
Art. 196. Brothers and sisters not legitimately related, the latter shall be preferred.
whether of the full or half-blood, are likewise bound to
support each other to the full extent set forth in Article Art. 201. The amount of support, in the cases referred to
194, except only when the need for support of the brother in Articles 195 and 196, shall be in proportion to the
or sister, being of age, is due to a cause imputable to the resources or means of the giver and to the necessities of
claimant's fault or negligence. (291a) the recipient. (296a)

Art. 197. In case of legitimate ascendants; descendants, That is why support is never fixed because it is always subject
whether legitimate or illegitimate; and brothers and to adjustments.
sisters, whether legitimately or illegitimately related, only
the separate property of the person obliged to give Art. 202. Support in the cases referred to in the preceding
support shall be answerable provided that in case the article shall be reduced or increased proportionately,
obligor has no separate property, the absolute community according to the reduction or increase of the necessities
or the conjugal partnership, if financially capable, shall of the recipient and the resources or means of the person
advance the support, which shall be deducted from the obliged to furnish the same. (297a)
share of the spouse obliged upon the liquidation of the
absolute community or of the conjugal partnership. (n)
When is support demandable?

Art. 198. During the proceedings for legal separation or Art. 203. The obligation to give support shall be
for annulment of marriage, and for declaration of nullity demandable from the time the person who has a right to
of marriage, the spouses and their children shall be receive the same needs it for maintenance, but it shall not
supported from the properties of the absolute community be paid except from the date of judicial or extrajudicial
or the conjugal partnership. After the final judgment demand.
granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal Support pendente lite may be claimed in accordance with
separation, the court may order that the guilty spouse the Rules of Court.
shall give support to the innocent one, specifying the
terms of such order. (292a) Payment shall be made within the first five days of each
corresponding month or when the recipient dies, his heirs
Article 198 is relevant to support pending litigation. shall not be obliged to return what he has received in
advance. (298a)
Art. 199. Whenever two or more persons are obliged to
give support, the liability shall devolve upon the following Neither can support be the subject of compensation. When it
persons in the order herein provided: is received in advance, then the heirs are not obliged to
1) The spouse; return.
2) The descendants in the nearest degree;
3) The ascendants in the nearest degree; and Art. 204. The person obliged to give support shall have
4) The brothers and sisters. (294a) the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the
Article 199 refers to a situation when there are 2 or more family dwelling the person who has a right to receive
persons who are obliged to give support. support. The latter alternative cannot be availed of in case
there is a moral or legal obstacle thereto. (299a)
Under the Family Code, there is no more distinction whether
the descendant obliged to give support is legitimate or
Art. 205. The right to receive support under this Title as
illegitimate. They are both required to provide support.
well as any money or property obtained as such support
shall not be levied upon on attachment or execution.
Art. 200. When the obligation to give support falls upon (302a)
two or more persons, the payment of the same shall be
divided between them in proportion to the resources of
each. However, in case of urgent need and by special Art. 206. When, without the knowledge of the person
circumstances, the judge may order only one of them to obliged to give support, it is given by a stranger, the latter
furnish the support provisionally, without prejudice to his shall have a right to claim the same from the former,

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unless it appears that he gave it without intention of being The raison d etre behind the proscription against
reimbursed. (2164a) renunciation, transmission and/or compromise of the right
to support is stated, thus:
Art. 207. When the person obliged to support another “The right to support being founded upon the need of the
unjustly refuses or fails to give support when urgently recipient to maintain his existence, he is not entitled to
needed by the latter, any third person may furnish renounce or transfer the right for this would mean
support to the needy individual, with right of sanctioning the voluntary giving up of life itself. The right to
reimbursement from the person obliged to give support. life cannot be renounced; hence, support, which is the means
This Article shall particularly apply when the father or to attain the former, cannot be renounced.”
mother of a child under the age of majority unjustly
refuses to support or fails to give support to the child To allow renunciation or transmission or compensation of
when urgently needed. (2166a) the family right of a person to support is virtually to allow
either suicide or the conversion of the recipient to a public
burden. This is contrary to public policy
Art. 208. In case of contractual support or that given by
will, the excess in amount beyond that required for legal AUGUSTUS CAEZAR R. GAN vs. HON. ANTONIO C.
support shall be subject to levy on attachment or REYES
execution. G.R. No. 145527. May 28, 2002
Furthermore, contractual support shall be subject to Apprehensive that she would be unable to send her 3-year
adjustment whenever modification is necessary due to old daughter to school, she wrote Gan demanding support
changes of circumstances manifestly beyond the for their “love child”. Gan denied paternity of the child. He
contemplation of the parties. (n) argued that since the child’s birth certificate indicated her
father as “UNKNOWN”, then there is no legal basis for the
CASES claim for support. Gan was declared in default and was
*some of the case digests were taken from Atty. G’s Pre-Bar ordered to recognize the child Francheska Joy as his
notes* illegitimate child and to support her. A writ of execution
was issued citing as reason the child’s immediate need for
MANUEL DE ASIS vs. COURT OF APPEALS, HON. JAIME schooling. Meanwhile, Gan appealed the judgment of the
T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CA. He then filed a petition for certiorari insisting that the
CAMIL ANDRES DE ASIS represented by her judgment sought to be enforced did not yet attain finality.
mother/guardian VIRCEL D. ANDRES He also seeks the setting aside of the default order and the
G.R. No. 127578. February 15, 1999 judgment rendered thereafter for the reason that he
should be allowed to prove his defense of adultery.
The mother filed an action for recognition and support.
The alleged father denied paternity and instead filed a The SC ruled that support, as soon as it is issued by the
counterclaim. They entered into an agreement where the Court, becomes immediately executor. It cannot be
mother would dismiss the petition for support provided the stayed by an appeal.
the alleged father would also dismiss the counterclaim.
But subsequently, the mother in behalf of the minor child From the FT:
filed a case again for support. The alleged father claimed The money and property adjudged for support and
re judicata. education should and must be given presently and without
delay because if it had to wait the final judgment, the
The SC ruled that the agreement on the dismissal of both children may in the meantime have suffered because of lack
the petition and the counterclaim constitutes waiver of of food or have missed and lost years in school because of
the right to receive support, which is not allowed by law. lack of funds. One cannot delay the payment of such funds
It is not one of those rights allowed to be the subject of a for support and education for the reason that if paid long
waiver. Future support cannot be the subject of a afterwards, however much the accumulated amount, its
compromise. Likewise, that agreement is also payment cannot cure the evil and repair the damage
violative of the law. caused. The children with such belated payment for support
and education cannot act as gluttons and eat voraciously
From the FT: and unwisely, afterwards, to make up for the years of
The new Civil Code provides that the allowance for support hunger and starvation. Neither may they enrol in several
is provisional because the amount may be increased or classes and schools and take up numerous subjects all at
decreased depending upon the means of the giver and the once to make up for the years they missed in school, due to
needs of the recipient (Art. 297); and that the right to non-payment of the funds when needed.
receive support cannot be renounced nor can it be
transmitted to a third person; neither can it be MANGONON vs. CA 494 S 1
compensated with what the recipient owes the obligator
(Art. 301). Furthermore, the right to support cannot be Ma. Belen Mangonon and Federico Delgado were civilly
waived or transferred to third parties and future support married. The marriage however, was subsequently
cannot be the subject of compromise (Art. 2035; Coral v. annulled and 7 months after the annulment, Mangonon
Gallego, 38 O.G. 3135, cited in IV Civil Code by Padilla, p. 648, gave birth to twins Rica and Rina. Federico totally
1956 Ed.). This being true, it is indisputable that the present abandoned them and Mangonon had to rely upon her 2nd
action for support can be brought, notwithstanding the fact husband for assistance. Demands made upon Federico
the previous case filed against the same defendant was and the latter’s father, Francisco, the latter being generally
dismissed. well known to be financially well-off, were unheeded.
Petitioner then filed, for and in behalf of the twins a

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petition for declaration of legitimacy and support with support the twins’ education, he, in lieu of Federico should
application for support pendente lite before the RTC of be liable for support pendente lite.
Makati. As legitimate children and grandchildren, the
twins are entitled to general and educational support While respondents have the option under Article 204 “to
under Articles 174 and 195 (b) in relation to Articles 194 fulfill the obligation either by paying the allowance fixed,
(1) and (2) and 199 (c) of the Family Code. or by receiving and maintaining in the family dwelling the
person who has the right to receive support. The latter
Mangonon argued that in case of default on the parents’ alternative cannot be availed of in case there is a moral or
part, the obligation to provide support falls upon the legal obstacle thereto.” In this case, Francisco cannot avail
grandparents of the children; thus, Federico, or in his himself of the 2nd option. Prior to the commencement of
default, Francisco should be ordered to provide general this action, the relationship between Francisco and the
and educational support in the amount of US$50,000.00, petitioner and daughters was quite pleasant. The
more or less, per year. Francisco stated in his answer that correspondences exchanged among them expressed
as the birth certificates of Rica and Rina do not bear the profound feelings of thoughtfulness and concern for
signature of Federico, it is essential to 1st establish their another’s well-being. The photographs presented a
legitimacy as “there is no basis to claim support until a seemingly typical family celebrating kinship. All these,
final and executory judicial declaration has been made as however, are things of the past. With the filing of this case,
to the civil status of the children.” Whatever good deeds and the allegations hurled at one another, the
he may have done to the twins were founded on pure acts relationships had been affected. Particularly difficult for
of Christian charity. And assuming that he could be held Rica and Rina must be the fact that those who they
liable for support, he has the option to fulfill the obligation considered and claimed as family denied having any
either by paying the support or receiving and maintaining familial relationship with them. Given all these, we could
in the dwelling here in the Philippines the person claiming not see the twins moving back here in the Philippines in
support. He further posits that because petitioner and the the company of those who disowned them.
twins are now US citizens, they cannot invoke the Family
Code provisions on support because “laws relating to LIM vs. LIM 604 SCRA 691
family rights and duties, or to the status, condition and (October 30, 2009)
legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad. (Article 15, NCC).” Spouses Cheryl and Edward and their 3 children live with
Federico, on the other hand, alleged that he left for abroad Edward’s parents, and his grandmother. Edward is
and stayed there for a long time “within the 1st 120 days receiving P6,000.00 from their family business. Cheryl, on
of the 300 days immediately preceding March 25, 1976 the other hand, had no steady source of income.
(birth of the twins)” and that he only came to know about
the birth of the twins when the latter introduced In 1990, Cheryl together with her 3 children left her in-
themselves to him 17 years later. He did not tell them that laws house after a violent confrontation with Edward
he could not be their father in order not to antagonize whom she caught with in-house midwife of his
them. grandmother in what the court described as “a very
compromising” situation. She then sued Edward together
The trial court said that, “the status of the twins as with his parents and grandparents for support.
children of Federico cannot be denied. They had
maintained constant communication with their The court ordered Edward, his parents and grandparents
grandfather Francisco. Francisco admitted having written to provide support in the amount of P40,000.00.
several letters to Rica and Rina. In said letters, particularly P6,000.00 from Edward while the balance of P34,000.00
at the bottom thereof, Francisco wrote the names of Rica shall be borne by his parents subject to the subsidiary
and Rina Delgado. He therefore was very well aware that liability of the grandparent. The court held that Edward’s
the twins bear the surname Delgado. Likewise, he referred parents (petitioners in this case) and his grandmother
to himself in his letters as “Lolo Paco” or “Daddy Paco”. In Chua Giak were jointly liable with Edward because of the
his October 13, 1989 letter he said, “as the grandfather, am latter’s “inability to x x x to give sufficient support x x x.”
extending a financial help of US$1,000.00.”
The petitioners further argued before the CA that while
Ruling: The pertinent provision is Article 199 of the FC. Edward’s income is insufficient, the law itself sanctions its
sisters. effects by providing that that legal support should be “in
Tolentino explains that the obligation to give support keeping with the financial capacity of the family” under
rests principally on those more closely related to the Article 194 of the Civil Code as amended by the FC.
recipient. However, the more remote relatives may be Further, their liability is activated only upon default of
held to shoulder the responsibility should the claimant parental authority, conceivably either by its termination
prove that those who are called upon to provide support or suspension during the children’s minority. At the time
do not have the means to do so. Cheryl sued for support, Cheryl and Edward exercised
parental authority over their children hence, the
There being prima facie showing that Mangonon and obligation to support ends with them.
Federico are the parents of Rica and Rina, they are
primarily charged to support their children’s college Ruling: While parental authority under Title IX pertains
education. In view however of their incapacities, the to parents, passing to ascendants only upon its
obligation to furnish said support shall be borne by termination or suspension, the obligation to provide legal
Francisco. Under Article 199 of the FC, as the next support passes on to ascendants not only upon default of
immediate relative of the twins, is tasked to give support the parents but also for the latter’s inability to provide
to his granddaughters in default of their parents. It having sufficient support.
been established that he has the financial means to

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There is no question that Cheryl is unable to discharge her During the pendency of the complaint for declaration of
obligation to provide sufficient legal support to her nullity of her marriage with Danilo, Susan prays that she
children, then all school-bound. It is also undisputed that and her children be given support pendente lite. The trial
the amount of support Edward is able to give is court granted the prayer and ordered Danilo to pay Susan
insufficient to meet respondents’ basic needs. This P1.750 million including support in arrears and
inability of Edward and Cheryl to sufficiently provide for thereafter, P250,000.00 as monthly support effective
their children shifts a portion of their obligation to the April 2004. On appeal and as prayed for by Danilo, the CA
ascendants in the nearest degree, both in the paternal and reduced the P250k monthly support to P115k and to
maternal line (Cheryl’s family had already been giving deduct the advances given by him to his children and
support to respondents) following the order established petitioner. The advances include groceries and dry goods,
in Article 199 of the FC. To hold otherwise, and thus vehicles consisting of Volkswagen Beetle and BMW 316i
subscribe to petitioners’ theory, is to sanction the and its maintenance, among others.
anomalous scenario of tolerating extreme material
deprivation of children because of paternal inability to Ruling: As a matter of law, the amount of support which
give adequate support even if the ascendants one degree those related by marriage and family relationship is
removed are more than able to fill the void. generally obliged to give each other shall be in proportion
to the resources or means of the giver and to the needs of
However, petitioners’ partial concurrent obligation the recipient (Article 201, FC). Such support comprises
extends only to their descendants as this word is everything indispensable for sustenance, dwelling,
commonly understood to refer to relatives by blood of clothing, medical attendance, education and
lower degree. Hence, only the children of Cheryl and transportation, in keeping with the financial capacity of
Edward are entitled to receive support from their the family.
grandparents. Cheryl’s right to receive support from the
Lim family extends only to her husband Edward, arising The CA should not have allowed all the expenses incurred
from their marital bond. by respondent to be credited against the accrued support
pendente lite. The deductions should be limited to those
Petitioners’ wish to exercise the option under Article 204 basic needs and expenses like medical expenses for Susan
is unavailable. It will force Cheryl to return to the house Lim-Lua, dental expenses for Daniel Ryan, credit card
which, for her, is the scene of her husband’s infidelity. purchases (dry goods and groceries) of Angelli and credit
While not rising to the level of a legal obstacle, as indeed, card purchases by Daniel Ryan.
Cheryl’s charge against Edward for concubinage did not
prosper for insufficient evidence, her steadfast insistence BBB v. AAA
on its occurrence amounts to a moral impediment 750 S 188
bringing the case within the ambit of the exception clause FACTS: Before AAA’s cohabitation with BBB, she already
of Article 204. had an illegitimate child CCC fathered by another man.
AAA and BBB decided to get married when DDD and EEE
CHERRYL DOLINA v. GLENN VALLECERA G.R. No. were born. Thereafter, the birth certificates of the children
182367 December 15, 2010 including CCC’s were amended to change their civil status
to legitimated by virtue of the said marriage.
What was initially filed was a violation of RA 9262 but
actually it was more of recognition of the illegitimate child. The marriage, however, did not last long when AAA
According to the SC, there should be first a petition for the alleges that BBB is having an extramarital affair with FFF
recognition of the child. If recognition is given or paternity which caused the parties’ separation in fact. When
is established, support as a matter of right follows. directed to give support to the children, BBB claimed that
CCC is not his biological son and thus, not entitled to
From the FT: receive support from him.
To be entitled to legal support, petitioner must, in proper
action, first establish the filiation of the child, if the same is ISSUE: May a husband exempt himself from giving
not admitted or acknowledged. Since Dolina’s demand for support to a child who actually was not his child with the
support for her son is based on her claim that he is mother of the child but was included in the legitimation
Vallecera’s illegitimate child, the latter is not entitled to upon their subsequent valid marriage?
such support if he had not acknowledged him, until Dolina
shall have proved his relation to him. The child’s remedy is Ruling: In the case at bar, the parties do not dispute the
to file through her mother a judicial action against fact that BBB is not CCC’s biological father. Such being the
Vallecera for compulsory recognition. If filiation is beyond case, it was improper to have CCC legitimated after the
question, support follows as matter of obligation. In short, celebration of BBB and AAA’s marriage. Clearly then, the
illegitimate children are entitled to support and legal process of legitimation was trifled with. BBB
successional rights but their filiation must be duly proved. voluntarily but falsely acknowledged CCC as his son.
Article 1431 of the Civil Code provides; “Through estoppel
SUSAN LIM-LUA v. DANILO LUA am admission or representation is rendered conclusive
GR# 175279-80 June 5, 2013 upon the person making it, and cannot be denied or
disproved against the person relying thereon.
This case refers to support in arrears. What may be
deducted for the support in arrears that are already due? At least, for the purpose of resolving the instant petition,
Can it include the maintenance of a car? Because here, the the principle of estoppel finds application and it now bars
children were given cars. BBB from making an assertion contrary to his previous
representations. He should not be allowed to evade a
responsibility arising from his own misrepresentations.

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He is bound by the effects of the legitimation process. CCC JOYCELYN GUALBERTO vs. CRISANTO RAFAELITO
remains to be BBB’s son, and pursuant to Article 179 of GUALBERTO V
the Family Code, the former is entitled to the same rights 461 SCRA 451 (June 28, 2005) [2006 Bar]
as those of a legitimate child, including the receipt of his
father’s support. Issue: Is a mother allegedly a lesbian unfit to have custody
over a child below seven years of age?

TITLE IX.-PARENTAL AUTHORITY Ruling: The convention on the Rights of the Child
Chapter 1. General Provisions provides that “in all actions concerning children, whether
undertaken by public or private social welfare
Art. 209. Pursuant to the natural right and duty of parents institutions, courts of law, administrative authorities or
over the person and property of their unemancipated legislative bodies, the best interest of the child shall be a
children, parental authority and responsibility shall primary consideration. The principle of “best interest of
include the caring for and rearing them for civic the child” pervades Philippine cases involving adoption,
consciousness and efficiency and the development of guardianship, support, personal status, minors in conflict
their moral, mental and physical character and well- with the law, and child custody. In these cases, it has long
being. (n) been recognized that in choosing the parent to whom
custody is given, the welfare of the minors should always
Art. 210. Parental authority and responsibility may not be the paramount consideration. Courts are mandated to
be renounced or transferred except in the cases take into account all relevant circumstances that would
authorized by law. (313a) have a bearing on the children’s well-being and
development. Aside from the material resources and the
So it cannot be renounced nor transferred subject to cases moral and social situations of each parent, other factors
authorized by law like adoption or that the parent is deprived may be considered to ascertain which one has the
of parental authority or it is suspended (there is a guardian) capability to attend to the physical, educational, social and
and when the child is already emancipated. moral welfare of the children.

As a general rule, a mother is to be preferred in awarding


Art. 211. The father and the mother shall jointly exercise
custody of children under the age of 7. The caveat in
parental authority over the persons of their common
Article 213 of the Family Code cannot be ignored, except
children. In case of disagreement, the father's decision
when the court finds cause to order otherwise. The so-
shall prevail, unless there is a judicial order to the
called “tender-age presumption” under Article 213 may
contrary.
be overcome only by compelling evidence of the mother’s
unfitness. The mother has been declared unsuitable to
Children shall always observe respect and reverence
have custody of her children in one or more of the
towards their parents and are obliged to obey them as
following instances: neglect, abandonment,
long as the children are under parental authority. (311a)
unemployment, immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or affliction
But what actually works in the family is that it is the mother’s with a communicable disease.
decision which shall prevail (LOL).
Here, Crisanto cites immorality due to alleged lesbian
Art. 212. In case of absence or death of either parent, the relationship as the compelling reason to deprive Joycelyn
parent present shall continue exercising parental of custody. It has indeed been held that under certain
authority. The remarriage of the surviving parent shall circumstances, the mother’s immoral conduct may
not affect the parental authority over the children, unless constitute a compelling reason to deprive her of custody.
the court appoints another person to be the guardian of
the person or property of the children. (n) But sexual preference or moral laxity alone does not prove
parental neglect or incompetence. Not even the fact that a
Take note that there might be a different guardian over the mother is a prostitute or has been unfaithful to her
person and a different guardian over the property of the husband would render her unfit to have custody of her
child. And if the parent remarries, the step-parent does not minor child. To deprive the wife of custody, the husband
exercise parental authority. must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have
Art. 213. In case of separation of the parents, parental distracted the offending spouse from exercising parental
authority shall be exercised by the parent designated by care.
the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over IN THE MATTER OF THE PETITION FOR A WRIT OF
seven years of age, unless the parent chosen is unfit. (n) HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES, NELSON L. CERVANTES and ZENAIDA
No child under 7 years of age shall be separated from the CARREON CERVANTES vs.
mother unless the court finds compelling reasons to order GINA CARREON FAJARDO and CONRADO FAJARDO
otherwise. The “compelling reasons” were mentioned by the G.R. No. 79955 January 27, 1989
Supreme Court in the case of Gualberto vs Gualberto. The
mother may be deprived of custody over the child even if the It appears that the child was born to respondents Conrado
child is below 7 years of age. Take note of the opinion of Fajardo and Gina Carreon, who are common-law husband
Justice Sempio-Diy, the fact that the mother is a prostitute or and wife. Respondents offered the child for adoption to
has been unfaithful to the husband does not render her unfit Gina Carreon's sister and brother-in-law, the herein
as a mother. petitioners Zenaida Carreon-Cervantes and Nelson

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Cervantes, spouses, who took care and custody of the child THE FILIAL PRIVILEGE RULE
when she was barely two (2) weeks old. An Affidavit of
Consent to the adoption of the child by herein petitioners, Art. 215. No descendant shall be compelled, in a criminal
was also executed by respondent Gina Carreon. case, to testify against his parents and grandparents,
except when such testimony is indispensable in a crime
The appropriate petition for adoption was filed by herein against the descendant or by one parent against the other.
petitioners over the child before the Regional Trial Court (315a)
of Rizal which rendered a decision granting the petition.
The child was then known as Angelie Anne Fajardo. The It is for the protection of the most sacred sentiments between
court ordered that the child be "freed from parental members of the same family.
authority of her natural parents as well as from legal
obligation and maintenance to them and that from now on Exceptions:
shall be, for all legal intents and purposes, known as 1. The testimony is indispensable in a crime against
Angelie Anne Cervantes, a child of herein petitioners and the descendant or by one parent against the other;
capable of inheriting their estate ." 2. If the testimony is voluntary, even if it is a criminal
case.
The adoptive parents (petitioners) later received a letter 3. Even if it is compelled, if it is a civil case.
from the respondents demanding to be paid the amount of
P150,000.00, otherwise, they would get back their child. Who shall exercise substitute parental authority?
Petitioners refused to accede to the demand. While
petitioners were out at work, the respondent Gina Art. 216. In default of parents or a judicially appointed
Carreon took the child from her "yaya" at the petitioners' guardian, the following person shall exercise substitute
residence in Angono, Rizal, on the pretext that she was parental authority over the child in the order indicated:
instructed to do so by her mother. Respondent brought
the child to her house in Parañaque. (1) The surviving grandparent, as provided in Art. 214;
Petitioners thereupon demanded the return of the child, (2) The oldest brother or sister, over twenty-one years of
but Gina Carreon refused, saying that she had no desire to age, unless unfit or disqualified; and
give up her child for adoption and that the affidavit of
consent to the adoption she had executed was not fully (3) The child's actual custodian, over twenty-one years of
explained to her. She sent word to the petitioners that she age, unless unfit or disqualified.
will, however, return the child to the petitioners if she
were paid the amount of P150,000.00. Whenever the appointment or a judicial guardian over the
property of the child becomes necessary, the same order
The SC said that it would be better for the child to be of preference shall be observed. (349a, 351a, 354a)
returned to the adoptive parent even if, assuming that
indeed her consent to the adoption was vitiated.
Take note that there is no need for a judicial appointment but
you cannot argue that with the Judge. The same holds true
It is undisputed that respondent Conrado Fajardo is
under Article 225 of the administration over the property.
legally married to a woman other than respondent Gina
There’s no requirement for the parent to be appointed as
Carreon, and his relationship with the latter is a common-
guardian. The law itself establishes the fact that the
law husband and wife relationship. His open cohabitation
presumption is that the father and the mother shall be the
with co-respondent Gina Carreon will not accord the
administrator over the property of the unemancipated child.
minor that desirable atmosphere where she can grow and
The law does not require any appointment rather what is
develop into an upright and moral-minded person.
only required under Article 225 is to furnish a bond in such
Besides, respondent Gina Carreon had previously given
amount as the court may determine, but not less than ten per
birth to another child by another married man with whom
centum (10%) of the value of the property or annual income.
she lived for almost three (3) years but who eventually left
her and vanished. For a minor (like Angelie Anne C.
Cervantes) to grow up with a sister whose "father" is not CARAVAN TRAVEL AND TOURS INTERNATIONAL vs.
her true father, could also affect the moral outlook and ERMILINDA ABEJAR
values of said minor. Upon the other hand, petitioners who G.R. No. 170631, February 10, 2016
are legally married appear to be morally, physically,
financially, and socially capable of supporting the minor Jesmariane Reyes was raised by her paternal aunt,
and giving her a future better than what the natural Ermilinda Abejar. She got involved in an accident whereby
mother (herein respondent Gina Carreon), who is not only she was hit by a van driven by Bautista and owned by
jobless but also maintains an illicit relation with a married caravan while walking along the street. The accident
man, can most likely give her. caused her death. She was 18 years old at the time of her
death. Abejar later filed a claim for damages from Caravan
due to the death of Reyes. According to Caravan, Abejar
Art. 214. In case of death, absence or unsuitability of the does not have a legal standing because there was no
parents, substitute parental authority shall be exercised judicial appointment.
by the surviving grandparent. In case several survive, the The SC said that Article 216 does not require judicial
one designated by the court, taking into account the same appointment in order for the actual custodian to be
consideration mentioned in the preceding article, shall considered as one exercising substitute parental
exercise the authority. (355a) authority. It was established that as early as 9 years old,
Reyes was already under the custody and care of Abejar
Here comes the most common question: “What if there are 2 and was treated like her own daughter.
sets of grandparents?” It is the court that will decide.

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It was also further established that Reyes had no more The legitimate father is still preferred over the
relatives from the mother side. The only surviving relative grandparents despite the latter’s demonstrated love and
is Abejar and so, she has the legal standing to pursue the affection. Wealth, too, is not a deciding factor.
claim for damages by reason of the death of Reyes.
The father’s previous inattention is inexcusable and
Espiritu vs. CA merits only the severest criticism. It cannot, however, be
242 S 362 construed as abandonment.

This case refers to the choice of the children where the LAXAMANA vs. LAXAMANA
eldest preferred the father over that of the mother. September 3, 2002
Because according to her, the mother is kissing a “bad”
man. They were brought back by their father in the The results of the psychiatric evaluation submitted to the
Philippines but the mother followed soon and filed a trial court states that “ Reymond Laxamana is not yet
petition for custody over the children. At that time, the considered completely cured (of his drug dependency)
children were already over 7 years of age. even though his drug urine test for “shabu” was negative.”
Likewise the children aged 14 and 15 when asked whether
When the children testified in the court, the eldest made they like to be with their father but they said that they
known her choice to be with her father. The mother entertain fears in their hearts and want to be sure that
alleged that there was abandonment on the part of the their father is no longer a drug dependent. The trial court
father because he entrusted the actual and physical then awarded custody of the children to their mother. Is
custody of the children to the paternal aunt. the court correct?

According to the SC, it is merely temporary custody. It is While petitioner may have a history of drug dependence,
not abandonment. the records are inadequate as to his moral, financial and
social well-being. The psychiatric evaluation that he is not
- The task of choosing the parent to whom custody shall yet “completely cured” may render him unfit to take
be awarded is not a ministerial function to be determined custody of the children but there is no evidence to show
by a simple determination of the age of a minor child. that he is unfit to provide the children with adequate
Whether a child is under or over seven years of age, the support, education, as well as moral and intellectual
paramount criterion must always be the child’s interests. training and development. While the children were asked
as to whether they like to be with their father but there
- In ascertaining the welfare and best interests of the child, was no showing that the court ascertained the categorical
courts are mandated by the Family Code to take into choice of the children.
account all relevant considerations. If a child is under 7
years of age, the law presumes that the mother is the best In controversies involving the care, custody, and control
custodian. The presumption is strong but it is not of their minor children, the contending parties stand on
conclusive. It can be overcome by “compelling reasons.” equal footing before the court who shall make a selection
according to the best interest of the child. The child if over
- Either parent, whether father or mother, is bound to 7 years of age may be permitted to choose which parent
suffer agony and pain if deprived of custody but it is not so he/she prefers to live with, but the court is not bound by
much the suffering, pride, and other feelings of either such choice if the parent chosen is unfit. In all cases, the
parent but the welfare of the child which is the paramount sole and foremost consideration is the physical,
consideration. educational, social and moral welfare of the child
concerned taking into account the respective resources as
Eslao vs. CA well as the social and moral situations of the opposing
266 S 317 parents.

When a parent entrusts the custody of a minor to another, SALIENTES vs. ABANILLA
such as a friend or godfather, even in a document, what is August 29, 2006
given is merely temporary custody and it does not
constitute a renunciation of parental authority. Even if a Loran and Marie Antonette are the parents of Lorenzo
definite renunciation is manifest, the law still disallows Emmanuel. They lived with Marie’s parents. Due to in-law
the same. problems, Loran suggested that they transfer to their own
house but Marie refused so he, alone, left the house and
Santos, Sr. vs. CA was, later on, prevented from seeing his son.
242 S 407
*same Santos case under Article 36 on psychological He then instituted a petition for habeas corpus and
incapacity* custody. Ordered to show cause why Lorenzo Emmanuel
should not be discharged from restraint Marie moved for
The law vests on the father and mother joint parental the reconsideration of the order which the court denied.
authority over the persons of their common children. In She went to the CA which the affirmed the denial of the
case of absence or death of either parent, the parent lower court. On certiorari, she contended that there was
present shall continue exercising parental authority. Only no evidence at all that the 3-year Lorenzo was under
in case of parents’ death, absence, or unsuitability may restraint and no evidence of maternal unfitness to deprive
substitute parental authority be exercised by the the mother Marie of her son of tender years. That the writ
surviving grandparent. is unwarranted considering that there is no unlawful
restraint by the mother and considering further that the
law presumes the fitness of the mother, thereby negating

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any notion of such mother illegally restraining her own Verily, under Section 5 of Act No. 3753, the declaration
son. She maintains that Loran had the burden of showing of either parent of the new-born legitimate child shall be
a compelling reason but failed to present even a prima sufficient for the registration of his birth in the civil
facie proof thereof. register, and only in the registration of birth of an
illegitimate child does the law require that the birth
Accordingly, the proper remedy is an action for custody certificate be signed and sworn to jointly by the parents of
and not habeas corpus as the latter is unavailable against the infant, or only by the mother if the father refuses to
the mother who, under the law, has the right of custody of acknowledge the child.
the minor. Loran, on the other hand, argued that under the
law, he and Marie have shared custody and parental To prove that they are the legitimate children of Macapaz,
authority over their son. That at times that Marie is out of brother of the owner of the property who died without an
the country as required of her job as an international flight heir. So, the children of the brother are now claiming that
stewardess, he, the father, should have custody of their they are the heirs of Macapaz. There was absence, however,
son and not the maternal grandparents. of the marriage contract. Calimag instead said that they are
not the legitimate children because they could not present
Ruling: Habeas corpus may be resorted to in cases where the marriage contract of their parents. Thus, pursuant to the
rightful custody is withheld from a person entitled iron bar rule, they have no right to question the sale.
thereto. Under Article 211 of the FC, Loran and Marie
Antonette have joint parental authority over their minor But they were able to prove their filiation by presenting their
son and consequently, joint custody. Further, although the birth certificate which contained therein the date and place
couple is separated de facto, the issue of custody has yet of marriage of their parents. According to the SC, there is
to be adjudicated by the court. In the absence of a judicial sufficient proof that they are indeed the legitimate children.
grant of custody to one parent, both parents are entitled
to the custody of their child. In this case, Loran’s cause of SAN AGUSTIN vs. SALES
action is the deprivation of his right to see his son, hence, (GR # 189289, 08/31/2016)
the remedy of habeas corpus is available to him.
Facts: Louis formally recognized plaintiffs as his children
In a petition for habeas corpus, the child’s welfare is the by Epitacia in two public documents bearing his thumb
supreme consideration. The Child and Youth Welfare Code marks, viz:
unequivocally provides that in all questions regarding the 1. a notarized document dated November 11,
care and custody of the child, his welfare shall be the 1980 jointly executed by Louis and Epitacia
paramount consideration. fonnally recognizing the plaintiffs as their
children; and
Article 213 of the FC deals with the judicial adjudication of 2. a document solely executed by Louis on
custody and serves as a guideline for the proper award of December 2, 1980, dominated as
custody by the court. Petitioners can raise it as a Acknowledgement of Children.
counterargument for Loran’s petition for custody. But it is
not a basis for preventing the father to see his own child. Ernesto (one of the illegitimate children) testified before
Nothing in the said provision disallows a father from the RTC that Louis (the alleged putative father) was no
seeing or visiting his child under 7 years of age. longer capable of writing his name as he was already blind
and bedridden at the time he affixed his thumb mark to
This ruling has been reiterated by the SC in the case of the document dated November 11, 1980.
Madrian vs Madrian (G.R. No. 159374, July 12, 2007), that
if one parent has been deprived of custody over the child, Ruling: A thumb mark has been repeatedly considered as
then the proper remedy is the issuance of a writ of habeas a valid mode of signature. The Court, in the case of Dr.
corpus. Yason v. Arciaga, held that a signature may be made by a
person's cross or mark.

September 7, 2018 There being no cogent reason to deviate from the


conclusion of the RTC finding the testimony of Ernesto
CALIMAG vs. MACAPAZ worthy of belief, the Court adopts such testimony.
(GR # 191936, 06/01/2016)
The issue here is the thumb mark. Would that be sufficient
Ruling: A perusal of said documents shows that the signature where in his deathbed, the father recognized the
respondents were apparently born to the same parents — child as his illegitimate child?
their father's name is Anastacio Nator Macapaz, while
their mother's maiden name is Fidela Overa Poblete. In SC said yes. It is a valid form of signature. The same holds true
item no. 24 thereof where it asks: "24. DATE AND PLACE in Succession; even if it is just a cross sign, if it is considered
OF MARRIAGE OF PARENTS (For legitimate birth)" it was as the usual signature of the person, it is valid. In this case, it
stated therein that respondents' parents were married on is the thumb mark.
"May 25, 1955 in Alang-alang, Leyte."
AGUILAR vs. SIASAT
The petitioner's assertion that the birth certificate must (GR # 200169, 01/28/2015)
be signed by the father in order to be a competent
evidence of legitimate filiation does not find support in Facts: During trial, Rodolfo testified and affirmed his
law and jurisprudence. relationship to the Aguilar spouses as their son. To prove
filiation, he presented the following documents, among
others Alfredo Aguilar’s Social Security System (SSS)

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Form E-1 dated October 10, 1957. Alfredo’s Form E-1 was did not have the evidentiary value accorded by the RTC
a public instrument subscribed and made under oath by and the CA. Joaquina's apparent recognition of Anacleto
him during his employment with BMMC, which bears his mattered little, for, as we stressed in Cenido v.
signature and thumb marks and indicates that petitioner, Apacionado, the recognition "must be made personally
who was born on March 5, 1945, is his son and dependent. by the parent himself or herself, not by any brother,
sister or relative; after all, the concept of recognition
Ruling: This Court, speaking in De Jesus v. Estate of Dizon, speaks of a voluntary declaration by the parent, of if the
has held that – parent refuses, by judicial authority, to establish the
paternity or maternity of children born outside wedlock."
The filiation of illegitimate children, like legitimate
children, is established by The lack of probative value of the respondents' aforecited
1. the record of birth appearing in the civil register corroborative evidence notwithstanding, Anacleto 's
or a final judgment; or recognition as Nicolas' illegitimate child remained beyond
2. an admission of legitimate filiation in a public question in view of the showing that Nicolas had
document or a private handwritten instrument personally and directly acknowledged Anacleto as his
and signed by the parent concerned. illegitimate son.

In the absence thereof, filiation shall be proved by Rightly enough, the RTC and the CA unanimously
1. the open and continuous possession of the concluded that Nicolas had duly acknowledged Anacleto
status of a legitimate child; or as his illegitimate son. The birth certificate of Anacleto
2. any other means allowed by the Rules of Court appearing in the Register of Births of the Municipality of
and special laws. Bacong, Negros Oriental showed that Nicolas had himself
caused the registration of the birth of Anacleto.
The due recognition of an illegitimate child in a record of
birth, a will, a statement before a court of record, or in any The showing was by means of the name of Nicolas
authentic writing is, in itself, a consummated act of appearing in the column "Remarks" in Page 53, Book 4,
acknowledgment of the child, and no further court action Register No. 214 of the Register of Births. Based on the
is required. In fact, any authentic writing is treated not just certification issued by the Local Civil Registrar of the
a ground for compulsory recognition; it is in itself a Municipality of Bacong, Negros Oriental, the column in the
voluntary recognition that does not require a separate Register of Births entitled "Remarks" was the space
action for judicial approval. Where, instead, a claim for provided for the name of the informant of the live birth to
recognition is predicated on other evidence merely be registered. Considering that Nicolas, the putative
tending to prove paternity, i.e., outside of a record of birth, father, had a direct hand in the preparation of the birth
a will, a statement before a court of record or an authentic certificate, reliance on the birth certificate of Anacleto as
writing, judicial action within the applicable statute of evidence of his paternity was fully warranted.
limitations is essential in order to establish the child’s
acknowledgment. Anacleto was recognized by Nicolas as his illegitimate child.
Because it was Nicolas himself who [processed] the [birth
Thus, applying the foregoing pronouncement to the certificate] of the child. He signed in the registry book.
instant case, it must be concluded that petitioner – who However, recognition is a personal right. Father of Anacleto
was born on March 5, 1945, or during the marriage of [who was Nicolas] predeceased his mother Joaquina. While
Alfredo Aguilar and Candelaria Siasat-Aguilar and before there was recognition made by the grandmother Joaquina,
their respective deaths – has sufficiently proved that he is recognition was personal to the parent.
the legitimate issue of the Aguilar spouses. As petitioner
correctly argues, Alfredo Aguilar’s SSS Form E-1 (Exhibit DE LA CRUZ vs. GRACIA
"G") satisfies the requirement for proof of filiation and (594 S 648)
relationship to the Aguilar spouses under Article 172 of
the Family Code; by itself, said document constitutes an Ruling: In the case at bar, there is no dispute that the
"admission of legitimate filiation in a public document or earlier quoted statements in Dominique’s Autobiography
a private handwritten instrument and signed by the have been made and written by him. Taken together with
parent concerned." the other relevant facts extant herein that Dominique,
during his lifetime, and Jenie were living together as
ARADO vs. ALCORAN common-law spouses for several months in 2005 at his
(762 S 37) parent's house in Pulang-lupa, Dulumbayan, Teresa, Rizal;
she was pregnant when Dominique died on September 4,
Facts: Raymundo Alcoran was married to Joaquina Arado 2005; and about two months after his death, Jenie gave
and their marriage produced a son named Nicolas birth to the child they sufficiently establish that the child
Alcoran. In turn, Nicolas married Florencia Limpahan, but of Jenie is Dominique’s.
their union had no offspring. During their marriage,
however, Nicolas had an extramarital affair with Francisca In view of the pronouncements herein made, the Court
Sarita who gave birth to respondent Anacleto Alcoran. sees it fit to adopt the following rules respecting the
Nicolas died in 1954 and Joaquina in 1981. requirement of affixing the signature of the
acknowledging parent in any private handwritten
Ruling: The school records of Anacleto, which evinced instrument wherein an admission of filiation of a
that Joaquina (the grandmother) was the guardian of legitimate or illegitimate child is made:
Anacleto in his grade school years, and the marriage 1. Where the private handwritten instrument is
contract between Anacleto and Elenette which indicated the lone piece of evidence submitted to prove
that Joaquina had given consent to Anacleto's marriage, filiation, there should be strict compliance with

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the requirement that the same must be signed


by the acknowledging parent; and Ruling: The letters of petitioner marked as Exhibits "A" to
2. Where the private handwritten instrument "D" are declarations that lead nowhere but to the
is accompanied by other relevant and conclusion that he sired Verna Aiza. Although petitioner
competent evidence, it suffices that the claim of used an alias in these letters, the similarity of the
filiation therein be shown to have been made penmanship in these letters vis the annotation at the back
and handwritten by the acknowledging parent of petitioner’s fading photograph as a youth is
as it is merely corroborative of such other unmistakable. Even an inexperienced eye will come to the
evidence. conclusion that they were all written by one and the same
person, petitioner, as found by the courts a quo.
In the eyes of society, a child with an unknown father
bears the stigma of dishonor. It is to petitioner minor We also note that in his Memorandum, petitioner
child’s best interests to allow him to bear the surname of admitted his affair with Clarissa, the exchange of love
the now deceased Dominique and enter it in his birth letters between them, and his giving her money during her
certificate. pregnancy.

This is the case of autobiography. According to the court, if it The letters, one of which is quoted above, are private
is a lone evidence, then it would be insufficient. But if it is handwritten instruments of petitioner which establish
corroborated by other evidence, then it is not required that Verna Aiza’s filiation under Article 172 (2) of the Family
the autobiography [will be signed?] by the parent concerned. Code. In addition, the array of evidence presented by
Because there are other proofs to support or to corroborate respondents, the dates, letters, pictures and testimonies,
[the fact of filiation]. to us, are convincing, and irrefutable evidence that Verna
Aiza is, indeed, petitioner’s illegitimate child.
NEPOMUCENO vs. LOPEZ
(03/18/2010) The letters were not considered as sufficient to prove that the
child born by Clarissa is the illegitimate child of Mr. Verceles.
In the present case, Arhbencel relies, in the main, on the While he signed it in his name, he merely signed it by using
handwritten note executed by petitioner which reads: his nickaname. But the handwriting is a giveaway. Moreover,
two of the letters were written using the stationery of
Manila, Aug. 7, 1999 Municipality of Pandan [two of the alleged father’s letters
were in his letterhead as mayor of Pandan].
I, Ben-Hur C. Nepomuceno, hereby undertake to give
and provide financial support in the amount of DE LA ROSA vs. VDA. DE DAMIAN
₱1,500.00 every fifteen and thirtieth day of each month (01/27/2006)
for a total of ₱3,000.00 a month starting Aug. 15, 1999,
to Ahrbencel Ann Lopez, presently in the custody of her Facts: Josefa Delgado and Guillermo lived together as
mother Araceli Lopez without the necessity of demand, husband and wife without legitimate children. However,
subject to adjustment later depending on the needs of Guillermo Rustia managed to father an illegitimate
the child and my income. child, the intervenor-respondent Guillerma Rustia, with
one Amparo Sagarbarria. According to Guillerma,
The abovequoted note does not contain any statement Guillermo Rustia treated her as his daughter, his own flesh
whatsoever about Arhbencel’s filiation to petitioner. It is, and blood, and she enjoyed open and continuous
therefore, not within the ambit of Article 172(2) vis-à-vis possession of that status from her birth in 1920 until her
Article 175 of the Family Code which admits as competent father’s demise. In fact, Josefa Delgado’s obituary which
evidence of illegitimate filiation an admission of filiation was prepared by Guillermo Rustia, named the intervenor-
in a private handwritten instrument signed by the parent respondent as one of their children. Also, her report card
concerned. from the University of Santo Tomas identified Guillermo
Rustia as her parent/guardian.
The note cannot also be accorded the same weight as the
notarial agreement to support the child for it is not even Ruling: There was apparently no doubt that she
notarized. The notarial agreement must be accompanied possessed the status of an illegitimate child from her birth
by the putative father’s admission of filiation to be an until the death of her putative father Guillermo Rustia.
acceptable evidence of filiation. Here, however, not only However, this did not constitute acknowledgment but
has petitioner not admitted filiation through a mere ground by which she could have compelled
contemporaneous actions. He has consistently denied it. acknowledgment through the courts.

At bottom, all that Arhbencel really has is petitioner’s Furthermore, any (judicial) action for compulsory
handwritten undertaking to provide financial support to acknowledgment has a dual limitation: the lifetime of the
her which, without more, fails to establish her claim of child and the lifetime of the putative parent. On the death
filiation. of either, the action for compulsory recognition can no
longer be filed. In this case, intervenor Guillerma’s right to
This refers to the promise which provides for support. But claim compulsory acknowledgment prescribed upon the
this is not the recognition that is recognized by law. It is death of Guillermo Rustia on February 28, 1974.
merely a promise to provide support but not recognizing the
child as his illegitimate child. The claim of voluntary recognition (Guillerma’s second
ground) must likewise fail. An authentic writing, for
VERCELES vs. POSADA purposes of voluntary recognition, is understood as a
(522 S 518) genuine or indubitable writing of the parent (in this case,

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Guillermo Rustia). This includes a public instrument or a the latter died. Thus, the putative parent is given by the
private writing admitted by the father to be his. new Code a chance to dispute the claim, considering that
illegitimate children are usually begotten and raised in
Did intervenor’s report card from the University of Santo secrecy and without the legitimate family being aware of
Tomas and Josefa Delgado’s obituary prepared by their existence. x x x The putative parent should thus be
Guillermo Rustia qualify as authentic writings under the given the opportunity to affirm or deny the
new Civil Code? Unfortunately not. The report card of child’s filiation, and this, he or she cannot do if he or she is
intervenor Guillerma did not bear the signature of already dead.
Guillermo Rustia. The fact that his name appears there as
intervenor’s parent/guardian holds no weight since he Nonetheless, the Family Code provides the caveat that
had no participation in its preparation. rights that have already vested prior to its enactment
should not be prejudiced or impaired as follows:
Similarly, while witnesses testified that it was Guillermo ART. 255. This Code shall have retroactive effect insofar as
Rustia himself who drafted the notice of death of Josefa it does not prejudice or impair vested or acquired rights
Delgado which was published in the Sunday Times on in accordance with the Civil Code or other laws.
September 10, 1972, that published obituary was not the
authentic writing contemplated by the law. What could We hold that Article 285 of the Civil Code is a substantive
have been admitted as an authentic writing was the law, as it gives Adrian the right to file his petition for
original manuscript of the notice, in the handwriting of recognition within four years from attaining majority age.
Guillermo Rustia himself and signed by him, not the Therefore, the Family Code cannot impair or take Adrian’s
newspaper clipping of the obituary. The failure to present right to file an action for recognition, because that right
the original signed manuscript was fatal to intervenor’s had already vested prior to its enactment.
claim.
This refers to the birth of the child prior to the effectivity
There were two modes that was alleged by Guillerma. First of the Family Code. According to SC, the father died when
was the open and continuous possession of the status of an the Family Code had taken effect. But the child Adrian filed
illegitimate child having stayed with the spouses while this petition for recognition based on Art. 285 of the Civil
growing up. In fact, according to her, she was also ___ Code, which gives him 4 years after attaining the age of
recognized by presenting her report card from the school. majority to file the petition for recognition. And being a
And the other is the obituary. substantive law, this cannot be taken away with the
passage of the Family Code in relation to Art. 175 and Art.
With respect to the first (the open and continuous 172. Art. 172 provides for modes of proving filiation
possession), it is merely a mode to compel and thus it has a (legitimate). On illegitimate children, it is Art. 175 because
dual limitation. So in this case, the death of father. Because at this article [provides that when] a secondary proof [is
the time this was filed, the father was already dead. And to used] to file a petition for recognition, [it must be filed] at
the voluntary recognition alleged, respecting the report card, any time before the death of the father. Otherwise, that
it was not signed by the father. The obituary, what should would have been barred by the death of the father.
have been presented is the original manuscript.
This was true in the case of Bernabe. But the SC said that
BERNABE vs. ALEJO Adrian was born under the Civil Code. Thus, even the right
(01/21/2002) to institute the petition for recognition (4 years after
attaining the age of majority).
Facts: The late Fiscal Ernesto A. Bernabe allegedly
fathered a son with his secretary of twenty-three (23) LOCSIN vs. LOCSIN, JR.
years, herein plaintiff-appellant Carolina Alejo. The son (12/10/2001)
was born on September 18, 1981 and was named
Adrian Bernabe. Fiscal Bernabe died on August 13, 1993, Facts: The respondent illegitimate child submitted a
while his wife Rosalina died on December 3 of the same machine copy (marked as Exhibit "D") of his Certificate of
year, leaving Ernestina as the sole surviving heir. Live Birth No. 477 found in the bound volume of birth
records in the Office of the Local Civil Registrar of Iloilo
On May 16, 1994, Carolina, in behalf of Adrian, filed the City. Exhibit "D" contains the information that
aforesaid complaint praying that Adrian be declared an respondent's father is Juan C. Locsin, Sr. and that he was
acknowledged illegitimate son of Fiscal Bernabe and as the informant of the facts stated therein.
such he (Adrian) be given his share in
Fiscal Bernabes estate, which is now being held by However, a certified true copy of Certificate of Live Birth
Ernestina as the sole surviving heir. No. 477 found in the Civil Registrar General, Metro Manila,
marked as Exhibit "8", indicates that the birth of
Petitioner contends that respondent is barred from filing respondent was reported by his mother, Amparo
an action for recognition, because Article 285 of the Civil Escamilla, and that the same does not contain the
Code has been supplanted by the provisions of the Family signature of the late Juan C. Locsin (the alleged father).
Code. She argues that the latter Code should be given
retroactive effect, since no vested right would be
impaired. Ruling: A copy of the document sent by the Local Civil
Registrar to the Civil Registrar General should be identical
Ruling: Under the new law, an action for the recognition in form and in substance with the copy being kept by the
of an illegitimate child must be brought within the lifetime latter. In the instant case, Exhibit "8", as transmitted to the
of the alleged parent. The Family Code makes no Civil Registrar General is not identical with Exhibit "D" as
distinction on whether the former was still a minor when

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appearing in the records of the Local Civil Registrar of photographs are far from proofs that private respondent
Iloilo City. Carlito Fernandez is the father of petitioner Claro.

A birth certificate is a formidable piece of evidence The pictures taken in the house of the mother of the
prescribed by both the Civil Code and Article 172 of the illegitimate children showing Carlito showering affection
Family Code for purposes of recognition and to Claro fall short of the evidence required to prove
filiation. However, birth certificate offers only prima paternity.
facie evidence of filiation and may be refuted by contrary
evidence. Its evidentiary worth cannot be sustained Moreover, the baptismal certificate of petitioner Claro
where there exists strong, complete and conclusive proof naming private respondent as his father has scant
of its falsity or nullity. evidentiary value. There is no showing that private
respondent participated in its preparation.
In this case, respondent's Certificate of Live Birth No. 477
entered in the records of the Local Civil Registry (from While baptismal certificates may be considered public
which Exhibit "D" was machine copied) has all the badges documents, they can only serve as evidence of the
of nullity. Without doubt, the authentic copy on file in that administration of the sacraments on the dates so
office was removed and substituted with a falsified specified. They are not necessarily competent evidence of
Certificate of Live Birth. the veracity of entries therein with respect to the child's
paternity.
At this point, it bears stressing the provision of Section 23,
Rule 132 of the Revised Rules of Court that "(d)ocuments This refers to the allegation that he is the illegitimate child
consisting of entries in public records made in the because of the recognition application for the petition ___.
performance of a duty by a public officer are prima According to SC, while it may be a public document, this is not
facie evidence of the facts therein stated." In this case, the recognition of filiation of the child. So, it cannot be given due
glaring discrepancies between the two Certificates of Live effect by the court. The mere fact that the alleged father
Birth (Exhibits "D" and "8") have overturned the allowed the child to call him ‘papa’ and allowed him to stay in
genuineness of Exhibit "D" entered in the Local Civil his sister’s house for one week and treated him like he was
Registry. What is authentic is Exhibit "8" recorded in the his son, is not sufficient proof of filiation.
Civil Registry General.
Incidentally, respondent's photograph with his mother GOTARDO vs. BULING
near the coffin of the late Juan C. Locsin cannot and will (678 S 436)
not constitute proof of filiation, lest we recklessly set a
very dangerous precedent that would encourage and In Herrera v. Alba, we stressed that there are four
sanction fraudulent claims. Anybody can have a picture significant procedural aspects of a traditional paternity
taken while standing before a coffin with others and action that parties have to face: a prima facie case,
thereafter utilize it in claiming the estate of the deceased. affirmative defenses, presumption of legitimacy, and
physical resemblance between the putative father and the
This refers to the birth certificate. The original that was child.
issued by the local civil registrar. However, there were
discrepancies on the entries because the informant of the We explained that a prima facie case exists if a woman
birth certificate… the birth of the child in the entry of the birth declares — supported by corroborative proof — that she
certificate coming from the local civil registrar, the informant had sexual relations with the putative father; at this point,
was the alleged father. But the certified copy thereof, as the burden of evidence shifts to the putative father. We
claimed by the oppositors, the informant was actually the explained further that the two affirmative defenses
mother. Locsin here was praying for the issuance of the available to the putative father are: (1) incapability of
letters of administration. sexual relations with the mother due to either physical
absence or impotency, or (2) that the mother had sexual
According to the SC, the one that should prevail should be the relations with other men at the time of conception.
one coming from the Civil Registrar General. In this case, the respondent Divina Buling established
a prima facie case that the petitioner Charles Gotardo is
LABAGALA vs. SANTIAGO (12/04/2001): The Income Tax the putative father of Gliffze through testimony that she
Return is not proof of filiation. It is merely proof of payment had been sexually involved only with one man, the
of taxes. petitioner, at the time of her conception.

FERNANDEZ vs. FERNANDEZ (363 S 811): There is no The allegation that a woman had sexual intercourse with a
participation on the part of the alleged father in the man, the burden of proof is on the man to prove that there
preparation of the baptismal certificate and the birth was no sexual intercourse. [Note: Vague ang thought sa
certificate. The testimony of the priest cannot also be statement ni Ma’am. Pero according sa case: “a prima
appreciated because he was coached by the mother before facie case exists if a woman declares — supported by
the start of the trial. corroborative proof — that she had sexual relations with the
putative father; at this point, the burden of evidence shifts to
FERNANDEZ vs. CA the putative father.”] Otherwise, the presumption is that the
(230 S 130) child is his child.

Petitioners, the alleged illegitimate children cannot rely DE LA CRUZ vs. GRACIA
on the photographs showing the presence of the private (594 S 648)
respondent in the baptism of petitioner Claro. These

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Petitioners contend that Article 176 of the Family Code, as Legitimated Children
amended, does not expressly require that the private BBB vs. AAA
handwritten instrument containing the putative father’s (750 S 188)
admission of paternity must be signed by him. They add
that the deceased’s handwritten Autobiography, though In the case at bar, the parties do not dispute the fact that
unsigned by him, is sufficient, for the requirement in the BBB is not CCC’s biological father. Such being the case, it
above-quoted paragraph 2.2 of the Administrative was improper to have CCC legitimated after the
Order that the admission/recognition must be duly signed celebration of BBB and AAA’s marriage. Clearly then, the
by the father is void as it unduly expanded the earlier- legal process of legitimation was trifled with. BBB
quoted provision of Article 176 of the Family Code. voluntarily but falsely acknowledged CCC as his son.
Article 1431 of the New Civil Code pertinently provides:
Ruling: Article 176 of the Family Code, as amended, does
not, indeed, explicitly state that the private handwritten Art. 1431. Through estoppel an admission or representation
instrument acknowledging the childs paternity must be is rendered conclusive upon the person making it, and
signed by the putative father. This provision must, cannot be denied or disproved as against the person relying
however, be read in conjunction with related provisions of thereon.
the Family Code which require that recognition by the
father must bear his signature, thus: At least for the purpose of resolving the instant petition,
the principle of estoppel finds application and it now bars
Art. 175. Illegitimate children may establish BBB from making an assertion contrary to his previous
their illegitimate filiation in the same way and representations. He should not be allowed to evade a
on the same evidence as legitimate children. responsibility arising from his own misrepresentations.
He is bound by the effects of the legitimation process. CCC
xxxx remains to be BBB’s son, and pursuant to Article 179 of
the Family Code, the former is entitled to the same rights
Art. 172. The filiation of legitimate children is as those of a legitimate child, including the receipt of his
established by any of the following: father’s support.
1) The record of birth appearing in the
civil register or a final judgment; or According to the Court, BBB should [fold?] with the provision
2) An admission of legitimate filiation in of Art. 177 on effects of legitimation. So, he is bound to
a public document or a private provide support even if CCC is not his biological child. But
handwritten when he got married with AAA (wife), he included in the
instrument and signed by the parent legitimation process this CCC (the child of AAA with another
concerned. man) and not only their two children DDD and EEE.
xxxx
SALIENTES vs. ABANILLA
That a father who acknowledges paternity of a child (08/29/2006)
through a written instrument must affix his signature
thereon is clearly implied in Article 176 of the Family Habeas corpus may be resorted to in cases where rightful
Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of custody is withheld from a person entitled thereto. Under
2004, merely articulated such requirement; it did not Article 211 of the Family Code, respondent Loran and
unduly expand the import of Article 176 as claimed by petitioner Marie Antonette have joint parental authority
petitioners. over their son and consequently joint custody. Further,
although the couple is separated de facto, the issue of
In relation in the case of DELA CRUZ VS. GRACIA is RA 9255 custody has yet to be adjudicated by the court. In the
– the law allowing the child to use the surname of the father. absence of a judicial grant of custody to one parent, both
This was the center of the issue in that case because the parents are still entitled to the custody of their child. In the
contention of the mother was that there is no more need for present case, private respondent’s cause of action is the
the father to sign the document. There is nothing in the law deprivation of his right to see his child as alleged in his
that requires Art. 176 have been amended by RA 9255 petition. Hence, the remedy of habeas corpus is available
whereby it no longer requires [signing]. But according to the to him.
Court, RA 9255 should be read in relation to Article 172 in
relation to Art. 175. The second paragraph on the primary In a petition for habeas corpus, the child’s welfare is the
proof, we talk about a private handwritten instrument, it supreme consideration. The Child and Youth Welfare
must be signed by the parent concerned. That is the reading Code unequivocally provides that in all questions
of the law. regarding the care and custody, among others, of the child,
his welfare shall be the paramount consideration.
While it may be true that it is silent, however, it must be read
in relation to those two provisions. Unless, the rules This refers to the propriety of the petition that was filed the
established in the case of Dela Cruz have been met, that is, husband on habeas corpus. Because the contention of the
there is corroborative evidence aside from the document that wife was that what should have been filed was a prayer for
was NOT signed by the alleged father. That would be custody over the child instead of petition for writ of habeas
sufficient. In that case, aside from the acknowledgement corpus as there was no showing that the child was under
made by the paternal grandfather, there was also the restraint. But SC ruled otherwise.
testimony of the father of Dominique. According to Court, the
legitimes as heirs of Dominique would effected by their GUALBERTO VS. GUALBERTO (461 S 451): What should be
recognition of the child. remembered here is the tender age presumption. That is
Art. 213 (2) of the Family Code. Another is the best interest of

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the child. In all cases involving adoption, custody, From FT: The separated parents cannot contract away the
guardianship as well as children in conflict with the law, it provision in the Family Code on the maternal custody of
should always be based on the principle of the best interest children below seven years anymore than they can privately
of the child. agree that a mother who is unemployed, immoral, habitually
drunk, drug addict, insane or afflicted with a communicable
Grounds where the mother can be deprived of the custody of disease will have sole custody of a child under seven as these
the child even if the child is below 7 years of age: are reasons deemed compelling to preclude the application
 neglect, abandonment, unemployment, immorality, of the exclusive maternal custody regime under the second
habitual drunkenness, drug addiction, paragraph of Article 213.
maltreatment of the child, insanity or affliction
with a communicable disease. Rights and Duties of Parents to their Unemancipated
Child
In the subsequent case of DACASIN VS. DACASIN, even if the
mother is found to be a prostitute that will not render her We go to the filial privilege rule. That is Art. 215.
unfit to have custody over the child. Unless, in the case of
CERVANTES VS. FAJARDO comes to play. The child there Art. 215. No descendant shall be compelled, in a criminal
was already aware. ‘Bakit iba ang tatay ko, iba naman yung case, to testify against his parents and grandparents,
tatay ng kapatid ko.’ So the Court said that the child is to except when such testimony is indispensable in a crime
remain to the adoptive parents. against the descendant or by one parent against the other.

But if the child is still of tender years, of course, the child GR: No descendant shall be compelled, in a criminal case, to
would not be able to know those. So, the child must still stay testify against his parents and grandparents.
with the mother.
Exceptions:
[MAGIMYAN VS. MAGIMYAN?]: This reiterated Salientes vs. 1. When the testimony is indispensable in a crime
Abanilla. This case was merely procedural that is why I have against the descendant or by one parent against the
not included it in the case list. This merely reiterated other
Salientes case on the remedy of the parent where the parent 2. Even if there is compulsion, if it is a civil case
is deprived of custody over the child. Resort to the filing of 3. Even if it is a criminal case, if the descendant
the petition of writ of habeas corpus instead of filing of voluntarily testifies
custody. Because the contention here of the mother was that
there was no way that the child was restrained. So, it should Art. 214. In case of death, absence or unsuitability of the
not be habeas corpus; instead, it should only be for custody. parents, substitute parental authority shall be exercised
by the surviving grandparent. In case several survive, the
Furthermore, as reiteration in the case of SANTOS, that when one designated by the court, taking into account the same
the other parent is absent, it should be the parent present consideration mentioned in the preceding article, shall
who should exercise parental authority and not the paternal exercise the authority.
or maternal grandparents. Because in the case of Salientes, it
was the maternal grandparents who had custody over the
On substitute parental authority, take note that the law does
child whenever the mother is out of the country.
not require any judicial appointment. They will only exercise
substitute parental authority in case of absence or
GAMBOA-HIRSCH VS. CA (527 S 380): According to SC, it
unsuitability of the parents.
was erroneous of the CA to grant joint custody over the child
who was 4 years old. When the mother was residing in
Makati, the father was in Boracay. The SC said that it should Art. 216. In default of parents or a judicially appointed
be the mother who should have custody over the child who guardian, the following person shall exercise substitute
was only 4 years old. parental authority over the child in the order indicated:
1) The surviving grandparent, as provided in Art.
DACASIN vs. DACASIN: 214;
Principles established here: 2) The oldest brother or sister, over twenty-one
1. ‘Sole maternal custody’. According to SC, we should years of age, unless unfit or disqualified; and
refer to the second paragraph of Art. 213 of the 3) The child's actual custodian, over twenty-one
Family Code. years of age, unless unfit or disqualified.
2. default custodian regime or mandatory maternal
custody regime. Again, second paragraph of Art. Whenever the appointment or a judicial guardian over the
213. property of the child becomes necessary, the same order
3. Default standard in child custody proceedings. This of preference shall be observed.
is the best interest of the child.
If there are many surviving grandparents, the court will
In this case of Dacasin, the marriage was terminated by virtue decide.
of a divorce decree and spouses entered into an agreement
on joint custody of the child or the post-divorce custody. SC
said that the agreement was void because it runs counter the CARAVAN TRAVEL AND TOURS vs. ABEJAR
provision of Family Code on Art. 213 which says that no child (783 S 368)
under seven years of age shall be separated from the mother.
Of course, the father may be granted the right to visit the child Facts: Here, Jesmariane Reyes was hit by a van owned by
but not to agree on joint custody. Caravan Travel and Tours and who days later died. Abejar
filed a complaint for damages against Caravan. The latter

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said that Abejar does not have the legal standing to sue for All other cases not covered by this and the preceding
damages because while she is said to be exercising articles shall be governed by the provisions of the Civil
substitute parental authority over Jesmariane, who at the Code on quasi-delicts.
time of her death was already 18 years old. There was also
no court appointment. Q: What is the defense?
A: Exercise of proper diligence required under the
Ruling: There was no need of court appointment because particular circumstances. As a general rule, it is the
there is nothing in Art. 216 that requires such. Moreover, diligence of a good father of the family.
it was really proven that it was Abjar who have taken care
of Jesmariane as early as 9 years of age. Being shown that In relation to this is the case of:
her maternal grandparents were already dead, she does SCHOOL OF HOLY SPIRIT OF QC vs. TAGUIAM (558 S 223):
not have siblings, her grandparents were unknown. So, In this case, the child drowned in the swimming pool of the
during her lifetime, it was Abejar who supported her and School of the Holy Spirit. But Taguiam (the teacher/class
provided her love and affection as well as the maternal adviser), at the time of the event, was alone [unsupervised].
needs of Jesmariane. Hence, it was proper for Abejar to file There was no one there to attend to the children. They were
the complaint for damages. grade five students. There was this report that two of the
students went out of the school. Taguiam followed the
From FT: Respondent's capacity to file a complaint against students and left the other children at the swimming pool and
petitioner stems from her having exercised substitute told them to not go to the deeper portion of the pool.
parental authority over Reyes.
Hence, one child drowned. As a teacher who stands in
Both of Reyes' parents are already deceased. Reyes' loco parentis to her pupils, Taguiam should have made sure
paternal grandparents are also both deceased. The that the children were protected from all harm while in her
whereabouts of Reyes' maternal grandparents are company. There was clearly negligence on her part and so she
unknown. was made to pay 7 million pesos.

There is also no record that Reyes has brothers or sisters. Another argument by the Court here was that the teacher did
It was under these circumstances that respondent took not secure the consent of the parents. According to Taguiam,
custody of Reyes when she was a child, assumed the role it is presumed that the parents consented to activity
of Reyes' parents, and thus, exercised substitute parental participated by the child because the mother herself brought
authority over her.60 As Reyes' custodian, respondent the child to the school.
exercised the full extent of the statutorily recognized
rights and duties of a parent. Consistent with Article From FT:
220 of the Family Code, respondent supported Reyes'
education and provided for her personal needs. To echo It is undisputed that Chiara Mae’s permit form was
respondent's words in her Complaint, she treated Reyes unsigned. Yet, respondent allowed her to join the activity
as if she were her own daughter. because she assumed that Chiara Mae’s mother has
allowed her to join it by personally bringing her to the
Q: Who exercises special parental authority? school with her packed lunch and swimsuit.
A: Art. 218
The purpose of a permit form is precisely to ensure that
Art. 218. The school, its administrators and teachers, or the parents have allowed their child to join the school
the individual, entity or institution engaged in child are activity involved. Respondent cannot simply ignore this
shall have special parental authority and responsibility by resorting to assumptions. Respondent admitted that
over the minor child while under their supervision, she was around when Chiara Mae and her mother
instruction or custody. arrived. She could have requested the mother to sign the
permit form before she left the school or at least called her
Authority and responsibility shall apply to all authorized up to obtain her conformity.
activities whether inside or outside the premises of the
school, entity or institution. So the question is, what if there was really an [intent to give]
authority? Can that absolve Taguiam? Di ba hindi naman?
Q: What would be their liability?
A: Principal and solidary. The parents shall be subsidiarily Art. 220. The parents and those exercising parental
liable. That is Art. 219. authority shall have with the respect to their
unemancipated children on wards the following rights
Art. 219. Those given the authority and responsibility and duties:
under the preceding Article shall be principally and 1) To keep them in their company, to support,
solidarily liable for damages caused by the acts or educate and instruct them by right precept and
omissions of the unemancipated minor. The parents, good example, and to provide for their
judicial guardians or the persons exercising substitute upbringing in keeping with their means;
parental authority over said minor shall be subsidiarily 2) To give them love and affection, advice and
liable. counsel, companionship and understanding;
3) To provide them with moral and spiritual
The respective liabilities of those referred to in the guidance, inculcate in them honesty, integrity,
preceding paragraph shall not apply if it is proved that self-discipline, self-reliance, industry and thrift,
they exercised the proper diligence required under the stimulate their interest in civic affairs, and
particular circumstances. inspire in them compliance with the duties of
citizenship;

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4) To furnish them with good and wholesome court of the place where the property or any part thereof
educational materials, supervise their activities, is situated.
recreation and association with others, protect
them from bad company, and prevent them The petition shall be docketed as a summary special
from acquiring habits detrimental to their proceeding in which all incidents and issues regarding the
health, studies and morals; performance of the obligations referred to in the second
5) To represent them in all matters affecting their paragraph of this Article shall be heard and resolved.
interests;
6) To demand from them respect and obedience; The ordinary rules on guardianship shall be merely
7) To impose discipline on them as may be suppletory except when the child is under substitute
required under the circumstances; and parental authority, or the guardian is a stranger, or a
8) To perform such other duties as are imposed by parent has remarried, in which case the ordinary rules on
law upon parents and guardians. guardianship shall apply.

Art. 220 refers now to the duty of the parents toward their Art. 225 refers to the right of the parents to be the
children. administrator over the property of their unemancipated
children without need of a court appointment. Only that it is
Art. 221. Parents and other persons exercising parental the father’s decision that would prevail subject to the right of
authority shall be civilly liable for the injuries and the mother to question the decision.
damages caused by the acts or omissions of their
unemancipated children living in their company and The only requirement here is if the value of the income or the
under their parental authority subject to the appropriate property of the child exceeds 50, 000 pesos, then, they must
defenses provided by law. post a bond in an amount not less than 10% of the value or
the income. The purpose of which is to guarantee
Art. 221 is in relation to Art. 236: performance of the obligations prescribed for general
guardians.
Art. 236. Emancipation shall terminate parental authority
over the person and property of the child who shall then The petition must also be verified for purposes of legal forms.
be qualified and responsible for all acts of civil life, save Again, the petition to furnish a bond must be verified. It is also
the exceptions established by existing laws in special summary in nature. So, the summary proceedings here is
cases. based on the summary proceedings under the Family Code
Contracting marriage shall require parental consent until and not that of the Rules of Court.
the age of twenty-one.
GR: Ordinary rules on guardianship shall be merely
Nothing in this Code shall be construed to derogate from suppletory
the duty or responsibility of parents and guardians for Exceptions: [where the ordinary rules of guardianship
children and wards below twenty-one years of age prevail over Art. 225]
mentioned in the second and third paragraphs of Article 1. When the child is under substitute parental
2180 of the Civil Code. authority
2. The guardian is a stranger
By virtue of RA 6809 which amended Art. 236, it lowered the 3. The parent has remarried
age of majority from 21 to 18. But even if the children are
already emancipated but for as long as between the ages of We go to Suspension or Termination of Parental Authority
18-21 and living in the parents’ company and under their
parental authority, the parents are still civilly liable for the Art. 228. Parental authority terminates permanently:
act or omission committed by the said children because of the 1) Upon the death of the parents;
amendment of Art. 236 in relation to Art. 221. 2) Upon the death of the child; or
3) Upon emancipation of the child.
Art. 225. The father and the mother shall jointly exercise
legal guardianship over the property of the Art. 229. Unless subsequently revived by a final
unemancipated common child without the necessity of a judgment, parental authority also terminates:
court appointment. In case of disagreement, the father's 1) Upon adoption of the child;
decision shall prevail, unless there is a judicial order to the 2) Upon appointment of a general guardian;
contrary. 3) Upon judicial declaration of abandonment of
the child in a case filed for the purpose;
Where the market value of the property or the annual 4) Upon final judgment of a competent court
income of the child exceeds P50,000, the parent divesting the party concerned of parental
concerned shall be required to furnish a bond in such authority; or
amount as the court may determine, but not less than ten 5) Upon judicial declaration of absence or
per centum (10%) of the value of the property or annual incapacity of the person exercising parental
income, to guarantee the performance of the obligations authority.
prescribed for general guardians.
Q: What may be revived by final judgment if there is
A verified petition for approval of the bond shall be filed suspension or termination of parental authority?
in the proper court of the place where the child resides, A: Those enumerated in Art. 229
or, if the child resides in a foreign country, in the proper
On adoption of a child: BARTOLOME vs. SSS (740 S 78)
where there was no final judgment reviving the parental

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authority of the mother over the minor child who was only 5 exercising parental auhtority subjected the child to sexual
years old at the time of the death of the adopting parent. SC abuse, then there is permanent deprivation of parental
said there is no need. Apply the revival by analogy. authority by the court. Example of this is one where the mother
herself binugaw ang kanyang anak.
Art. 230. Parental authority is suspended upon
conviction of the parent or the person exercising the same Art. 233. The person exercising substitute parental
of a crime which carries with it the penalty of civil authority shall have the same authority over the person
interdiction. The authority is automatically reinstated of the child as the parents.
upon service of the penalty or upon pardon or amnesty of
the offender. In no case shall the school administrator, teacher of
individual engaged in child care exercising special
Art. 230 is one exception where there is no need for revival parental authority inflict corporal punishment upon the
of a final judgment. It is automatically reinstated to the parent child. (n)
where the parent suffers the penalty that carries with it the
accessory penalty of civil interdiction. So, it is automatic The person exercising substitute parental authority shall
reinstatement. have the same authority as that exercised by the parents and
the second paragraph tells us that the school administrator or
Art. 230. Parental authority is suspended upon conviction teacher or those engaged in child care exercising special
of the parent or the person exercising the same of a crime parental authority should in no case inflict corporal
which carries with it the penalty of civil interdiction. The punishment upon the child. And in relation to this is RA 7610.
authority is automatically reinstated upon service of the
penalty or upon pardon or amnesty of the offender. (330a) Ma'am G: I cannot really understand why they would include
7610 in the Family Code when the sanctions thereof are penal
in nature. 7610 is a special law and penal in nature.
Article 230 is where the parent suffers a penalty which
carries with it the accessory penalty of civil interdiction. So it
RA 7610 – CHILD ABUSE, EXPLOITATION AND
is automatic reinstatement, upon service of the penalty or
DISCRIMINATION
upon pardon or amnesty of the offender.
CHILD ABUSE – refers to maltreatment of a person below
Art. 231. The court in an action filed for the purpose in a 18 years of age or over but are unable to fully take care of
related case may also suspend parental authority if the themselves or protect themselves from abuse, neglect,
parent or the person exercising the same: cruelty, exploitation or discrimination becauseof a physical
1) Treats the child with excessive harshness or or mental disability or condition. It includes:
cruelty; a. Psychological and physical abuse, neglect, cruelty
2) Gives the child corrupting orders, counsel or sexual abuse and emotional maltreatment;
example; b. Any act by deeds or words which debases,
3) Compels the child to beg; or degrades or demeans the intrinsic worth and
4) Subjects the child or allows him to be subjected dignity of a child as a human being;
to acts of lasciviousness. c. Unreasonable deprivation of his basic needs for
survival, such as food and shelter;
The grounds enumerated above are deemed to include d. Failure to immediately give medical treatment to
cases which have resulted from culpable negligence of the an injured child resulting in serious impairment
parent or the person exercising parental authority. ofhis growth and development or in his
permanent incapacity or death.
If the degree of seriousness so warrants, or the welfare of
the child so demands, the court shall deprive the guilty In the case of TORRES VS PEOPLE, hitting a 15 year old child
party of parental authority or adopt such other measures as by a wet t-shirt is already a violation of r RA7610, because
may be proper under the circumstances. according to J. Leonen, it debases and demeans the instrinsic
worth and dignity of the child. It's a form of cruelty daw.
The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or
in the same proceeding if the court finds that the cause Van Clifford Torres Salera vs. People of the Philippines
therefor has ceased and will not be repeated. (33a) G.R. No. 206627
January 18, 2017

Article 231 tells us the grounds for suspension of parental Ruling:


authority. In fact, the law recognizes that if the degree of
seriousness warrants, or when the welfare of the child The presence or absence of one person during the incident
demands, then the parent may be deprived of parental is not substantial enough to overturn the finding that
authority or such other measures as may be required under petitioner whipped AAA three (3) times with a wet t-shirt.
the circumstances. Assuming, without admitting, that petitioner did whip AAA,
petitioner argues that it should not be considered as child
Art. 232. If the person exercising parental authority has abuse because the law requires intent to abuse. Petitioner
subjected the child or allowed him to be subjected to sexual maintains that he whipped AAA merely to discipline and
abuse, such person shall be permanently deprived by the restrain the child "from further intensifying the situation."
court of such authority. (n) He also maintains that his act was justified because AAA
harassed and vexed him. Thus, petitioner claims that there
could not have been any intent to abuse on his part.
Articles 232 is an absolute rule. It says that if the parents

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Petitioner contends that the injuries sustained by AAA will Contracting marriage shall require parental consent until
not affect the latter's physical growth or development and the age of twenty-one.
mental capacity. He argues that he could not be convicted of
child abuse without proof that the victim's development Nothing in this Code shall be construed to derogate from
had been prejudiced. the duty or responsibility of parents and guardians for
children and wards below twenty-one years of age
We reject petitioner's contention that his act of whipping mentioned in the second and third paragraphs of Article
AAA is not child abuse but merely slight physical injuries 2180 of the Civil Code
under the Revised Penal Code. The victim, AAA, was a child
when the incident occurred. Therefore, AAA is entitled to
protection under Republic Act No. 7610, the primary
TITLE XI. - SUMMARY JUDICIAL PROCEEDINGS IN THE
purpose of which has been defined in Araneta v. People
FAMILY LAW
thus:
What are those that are covered by the summary judicial
Republic Act No. 7610 is a measure geared towards the
proceedings under the Family Code?
implementation of a national comprehensive program for
So until modified by the Supreme Court, the procedural rules
the survival of the most vulnerable members of the
of this title shall apply to all cases provided regarding
population, the Filipino children, in keeping with the
summary court proceedings and such cases shall be decided
Constitutional mandate under Article XV, Section 3,
in an expeditious manner without regard to technical rules.
paragraph 2, that "The State shall defend the right of the
children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, Article 253 of the FC specifies the cases covered by the rules
cruelty, exploitation, and other conditions prejudicial to in chapters two and three of the same title. It states: “The
their development." foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under:

A) Articles 41 (declaration of presumptive death),


TITLE X. - EMANCIPATION AND AGE OF MAJORITY
B) 51 (delivery of children’s presumptive legitimes
through issuance of writ of execution which
Articles 234 and 236 as amended by RA 6809 –
consists of money, properties, or sound
EMANCIPATION AND EFFECTS OF TERMINATION OF
securities),
PARENTAL AUTHORITY AND ITS EXCEPTION
C) 69 (fixing of family domicile, in case of
disagreement),
Section 2. Articles 235 and 237 of the same Code are
D) 73 (disagreement in the event one of the spouses
hereby repealed.
would exercise any legitimate profession,
business, or activity and the other one objects),
Section 4. Upon the effectivity of this Act, existing wills, E) 96 (administration and enjoyment of ACP, in case
bequests, donations, grants, insurance policies and of disagreement, wife is given 5 years in which to
similar instruments containing references and go to court xxx),
provisions favorable to minors will not retroact to their F) 124 (administration and enjoyment of CPG), and
prejudice. G) 217 (appointment of person who would exercise
parental authority upon foundlings, abandoned,
Most of the provisions on emancipation have already been neglected children), insofar as they are
repealed by RA 6809. What has been retained is Articles 234 applicable.
and 236. Emancipation takes place with the attainment of
majority and Article 236 provides that. Those are the only
provisions retained by the law because most have been
amended by the lowering of the age of majority. When the spouses are separated in fact and there is a need to
obtain his or her consent, judicial authorization shall be
Now, if there are rights already vested in the minor who by resorted to and it is a summary proceeding. That is 239.
virtue of RA 6809 have already bcome emancipated, those
rights/interests shall still be respected, so whatever has been Art. 239. When a husband and wife are separated in fact, or
given to the child by virtue of the provisions of the Family one has abandoned the other and one of them seeks judicial
Code where the age of majority is 21 but when the law took authorization for a transaction where the consent of the
effect the child already became emancipated, all those other spouse is required by law but such consent is
beneficial to the child shall be deemed valid and existing and withheld or cannot be obtained, a verified petition may be
it cannot be taken away by the passage of the new law. filed in court alleging the foregoing facts.

Art. 234. Emancipation takes place by the attainment of The petition shall attach the proposed deed, if any,
majority. Unless otherwise provided, majority commences embodying the transaction, and, if none, shall describe in
at the age of eighteen years. detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case, the
final deed duly executed by the parties shall be submitted
Art. 236. Emancipation shall terminate parental authority to and approved by the court. (n)
over the person and property of the child who shall then be
qualified and responsible for all acts of civil life, save the
exceptions established by existing laws in special cases. What are those that will still fall under the summary
judicial proceedings?
Note that in these cases, the judgment of the court becomes

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final and executory immediately. You cannot appeal. Your shall bear the surname of the mother.
remedy is Rule 65 original action on certiorari.
1. Article 41
 We have declaration of presumptive Republic Act No. 9255
death. February 24 2004
2. Article 51 AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE
 ‘Yung enforcement of delivery of the THE SURNAME OF THEIR FATHER, AMENDING FOR THE
children's presumptive legitime which PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO. 209,
may be made by the guardian or the OTHERWISE KNOWN AS THE "FAMILY CODE OF THE
children themselves. Said legitime may PHILIPPINES"
consist of money or property or security.
3. Article 69 SECTION 1. Article 176 of Executive Order No. 209,
 In case of disagreement in fixing of family otherwise known as the Family Code of the Philippines, is
domicile, the court decides. So summary hereby amended to read as follows:
din ‘yun.
4. Article 73 "Article 176. Illegitimate children shall use the surname
 disagreements of one spouse to the other and shall be under the parental authority of their mother,
spouse working or exercising a and shall be entitled to support in conformity with this
legitimate profession or industry or Code. However, illegitimate children may use the
business surname of their father if their filiation has been
5. Art. 96 expressly recognized by the father through the record of
 yung disagreement in administration of birth appearing in the civil register, or when an
the absolute community property, that in admission in a public document or private handwritten
case of disagreement, the husband's instrument is made by the father. Provided, the father
decision shall prevail, subject to the has the right to institute an action before the regular
recourse of the wife to the courts within courts to prove non-filiation during his lifetime. The
5 yrs. legitime of each illegitimate child shall consist of one-
6. Article 124 half of the legitime of a legitimate child."
 Conjugal partnership
7. Art. 217 SECTION 2. Repealing Clause. – All laws, presidential
 Parental authority on foundlings, decrees, executive orders, proclamations, rules and
neglected, abandoned. So who shall regulations, which are inconsistent with the provisions of
exercise parental authority? It’s the this Act are hereby repealed or modified accordingly.
DSWD or orphanages. That is covered by
the rules of the Family Code. SECTION 3. Effectivity Clause. – This Act shall take effect
fifteen (15) days from its publication in the Official Gazette
The provisions of the Family Code have retroactive effect or in two (2) newspapers of general circulation.
provided no vested rights will be affected.
Important points of RA 9255 – AN ACT ALLOWING
ILLEGITIMATE CHILDREN TO USE THE SURNAME OF
Title XIII. - USE OF SURNAMES
THEIR FATHER
 Approved on February 24, 2004.
Now we go to surnames. Legitimate and legitimated children
 There must be an express recognition by the father
shall principally use the surname of the father, and the
either:
adopted child shall use the adopter's surname. Because there
a. Record of birth appearing in the civil
can be a situation where the adopted child is adopted by the
register; or
mother only prior to the marriage. If the adopters were
b. Admission in a public or private
already married, the law requires that the adoption must be
handwritten instrument (Article 172 in
jointly made.
relation to Article 175 of the Family
Code.)
Art. 364. Legitimate and legitimated children shall  Applies to:
principally use the surname of the father. a. Unregistered births; or
b. Registered births where the illegitimate
children use the surname of the mother.
Art. 365. An adopted child shall bear the surname of the  Who may file:
adopter. a. Father;
b. Mother;
We now only have 2 types of children c. Child, if of age; or
1) legitimate and d. Guardian where an Affidavit to Use the
2) illegitimate Surname of the Father (AUSF) is
The illegitimate child shall use the surname of the mother and executed.
shall be under the parental authority of the mother. The  What to file:
exception to that is RA 9255 where the illegitimate child may a. Certificate of live birth with
use the surname of the father if the child is recognized by the accomplished Affidavit of
father as his. Acknowledgment/Admission of
Paternity at the back;
b. Public Document - affidavits of
Art. 368. Illegitimate children referred to in Article 287 Recognition executed by the father such

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as the Affidavit of Admission of Paternity surname or


or the Affidavit of Acknowledgment; and 3) Her husband's full name, but prefixing a word
c. AUSF including all supporting indicating that she is his wife, such as "Mrs."
documents.
 When to register – the public document not made
on the record of birth, or the AUSF shall be Upon the annullment of marriage, the wife can still continue
registered within 20 days from the date of the using the surname of the husband. Exceptions are: until the
execution at the place where the birth was court decrees or if they are already married to other persons
registered. and if she is the guilty party. In that case, she has to revert.
That is mandatory.
In the case of REPULIC VS CAPOTE, if the child is not
recognized, the child shall bear the surname of the mother Art. 371. In case of annulment of marriage, and the wife is
and would have no middle name. In relation to Article 176 the guilty party, she shall resume her maiden name and
and subject to the exception in RA 9255. Also, children surname. If she is the innocent spouse, she may resume her
conceived before the finality of the annulment shall maiden name and surname. However, she may choose to
principally use the surname of the father. continue employing her former husband's surname, unless:
1) The court decrees otherwise, or
Republic v Capote 2) She or the former husband is married again to
GR No. 157043 another person.
February 2, 2007
The widow may continue using the deceased husband's
ISSUE: Minor Giovanni Gallamaso is born on July 9, 1982 surname.
and is the illegitimate child of Corazon Nadores and
Diosdado Gallamaso. Can his name be changed to Giovanni
Gallamaso, taking to account that his father never Art. 373. A widow may use the deceased husband's
recognized him as his? surname as though he were still living, in accordance with
Article 370.
APPLICABLE LAW:

When Giovanni was born in 1982 (prior to the enactment Art. 374. In case of identity of names and surnames, the
and effectivity of the Family Code of the Philippines), the younger person shall be obliged to use such additional
pertinent provision of the Civil Code then as regards his use name or surname as will avoid confusion.
of a surname, read:
Art. 375. In case of identity of names and surnames
Art. 366. A natural child acknowledged by both parents
between ascendants and descendants, the word "Junior"
shall principally use the surname of the father. If
can be used only by a son. Grandsons and other direct male
recognized by only one of the parents, a natural child
descendants shall either:
shall employ the surname of the recognizing parent.
1) Add a middle name or the mother's surname, or
2) Add the Roman Numerals II, III, and so on.
Meanwhile, according to the Family Code which repealed,
among others, Article 366 of the Civil Code:
Art. 376. No person can change his name or surname
Art. 176. Illegitimate children shall use the surname and without judicial authority.
shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code.
Take note that “Junior” shall only be used by the son. So if you
RULING: are the grandson, use the roman numerals. Also, no person
can change his name or surname without judicial authority.
Based on this provision, Giovanni should have carried his
mother’s surname from birth. The records do not reveal any We have RA 9048 and further amended by RA 10172. RA
act or intention on the part of Giovanni’s putative father to 9048 refers only to change of name or nickname for grounds
actually recognize him. mentioned in the law but it excluded therein correction of
entry in one's gender as well as corrections in the date of
Applying these laws, an illegitimate child whose filiation is birth. The amendment, RA 10172, includes not only the
not recognized by the father bears only a given name and change in the name or nickname but also corrections in date
his mother’ surname, and does not have a middle name. The of birth and gender of person.
name of the unrecognized illegitimate child therefore
identifies him as such. RA 9048 – AN ACT AUTHORIZING THE CITY OR
MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
But what about the woman? What shall she use upon GENERAL TO CORRECT A CLERICAL OR
marriage? TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR
Art. 370 is the answer. CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL
REGISTER WITHOUT NEED OF A JUDICIAL ORDER
AMENDING FOR THIS PURPOSE ARTICLES 376 AND
Art. 370. A married woman may use: 412 OF THE CIVIL CODE OF THE PHILIPPINES
1) Her maiden first name and surname and add her Approved: March 22, 2001
husband's surname, or
2) Her maiden first name and her husband's Republic Act (RA) 9048 authorizes THE CITY OR

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MUNICIPAL CIVIL REGISTRAR or the CONSUL GENERAL to


correct a clerical or typographical error in an entry and/or 1. Section 1 of RA 9048 as amended by RA 10172 now
change the first name or nickname in the civil register includes correction of the date and month in the date of
without need of a judicial order. birth or sex of a person where it is patently clear that there
was a clerical or typographical error or mistake in the entry.
RA 9048 amends Articles 376 and 412 of the Civil Code of
the Philippines, which prohibit the change of name or 2. Clerical or typographical error refers to misspelled name
surname of a person, or any correction or change of entry in or misspelled place of birth, mistake in the entry of day and
a civil register without a judicial order. month in the date of birth or the sex of the person or the
like, which is visible to the eyes or obvious to the
No entry in a civil register shall be changed or corrected understanding, and can be corrected or changed only by
without a judicial order except: reference to other existing record or records.
1) Clerical or typographical errors and change of
first name or nickname which is defined as a 3. No correction must involve the change of nationality, age,
mistake committed in the performance of clerical or status of the petitioner.
work in writing, copying, transcribing or typing
an entry in the civil register that is harmless and 4. Section 5 of RA 9048 is amended: “The petition for
innocuous, such as misspelled place of birth or correction of a clerical or typographical error, or for change
the like, which is visible to the naked eye or of first name or nickname, as the case may be shall be in the
obvious to the understanding, and can be changed form of an affidavit subscribed and sworn to before any
only by reference to other existing record/s; and person authorized by law to administer oaths.”
in Section 4 thereof;
2) The first name or nickname is ridiculous, tainted 5. The petition shall be supported with the following
with dishonor or extremely difficult to write or documents:
pronounce;  A certified true machine copy of the certificate or
3) The new first name or nickname has been of the page of the registry book containing the
habitually and continuously use and he has been entry or entries sought to be corrected or
known by that first name or nickname in the changed;
community; or  At least two public documents or private
4) The change will avoid confusion instruments showing the correct entry or entries
upon which the correction or changed shall be
A petition under RA10172 for correction of date of birth based;
ceases to be adversarial in nature. It is now administrative in  Other documents which the petitioner or the city
nature, whereby it is the civil registrar general who has the or municipal registrar or the consul general may
ultimate decision. The petition for change of name or consider relevant and necessary for the approval
nickname can be filed in the place where the record is kept. of the petition.

There is a distinction ha, between change and correction. “To 6. No petition for the correction of erroneous entry
correct” is to set it right, and “to change” is to replace. concerning the date of birth or the sex of a person shall be
entertained except if the petition is accompanied by earliest
Anyway, under RA 9048, if you want to change your name or school record or earliest school document such as but not
nickname, file the petition with the local civil registrar where limited to, medical records, baptismal certificate and other
the document is kept. Otherwise, if the petitioner transferred documents issued by religious authorities.
residence, then in the nearest local civil registrar where he is
residing and if he is already residing abroad, then file that 7. No entry involving change of gender shall be allowed
with the nearest consular office of the Republic of the except if the petition is accompanied by a certification
Philippines. The civil registrar general has to decide whether issued by an accredited government physician attesting to
to affirm or deny the ruling of the local civil registrar or the the fact that the petitioner has not undergone sex change or
consul general within 10 days from receipt of the petition. You sex transplant.
can only avail of this once, this change of name/surname.
8. Publication of petition once a week for 2 consecutive
For changes in the date of birth, it is now required to submit weeks in a newspaper of general circulation.
the oldest record of your school records, medical records or
baptismal certificate. If the petition naman is for correction of 9. Submission of certification from appropriate law
sex in your birth certificate, then aside from the already enforcement agencies that he has no pending case or
mentioned documents, there should also be a certificate criminal record.
issued by an accredited government physician attesting to the
fact that the petitioner has not undergone a sex change or sex 10. Published August 24, 2012.
transplant.
Now we have case of Vicencio vs Republic, whereby she asked
RA 10172 – AN ACT AUTHORIZING THE CITY OR to change her surname to that of the second husband of her
MUNICIPAL CIVIL REGISTRAR OR THE CONSUL mother because she said it was the stepfather who provided
GENERAL TO CORRECT CLERICAL OR TYPOGRAPHICAL her support and acted as her real father while she was
ERRORS IN THE IN THE DAY AND MONTH IN THE DATE growing up. So she wanted to change her surname to that of
OF BIRTH OR SEX OF A PERSON APPEARING IN THE her stepfather's. The SC denied the petition because they
CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER said that the use of surname is a privilege and not a
AMENDING FOR THIS PURPOSE RA 9048 matter of right and so she could notchange her surname.

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Republic vs CA and Vincencio vs. Agrava, this Court allowed the concerned child to adopt
the surname of the step-father, but unlike the situation in
Facts: the present case where private respondent is a legitimate
Cynthia Vicencio filed a petition for change of surname, child, in those cases the children were not of legitimate
from “Vicencio” to “Yu”. She alleged that she was born to parentage.
Spouses Pablo Vicencio and Fe Leabres. After a marital spat,
Pablo left the conjugal abode and never returned. The In Padilla vs. Republic, the Court ruled that:
marriage of her parents was later dissolved and her mother
dropped the surname Vicencio. Fe thereafter married To allow said minors to adopt the surname of their mothers
Ernesto Yu. Since her childhood, she had not known much second husband, who is not their father, could result in
less remembered her real father Pablo, and her known confusion in their paternity. It could also create the
father had been and still is Ernesto Yu. Despite of which, she suspicion that said minors, who were born during the
had been using the family name “Vicencio” in her school and coverture of their mother with her first husband, were in
other activities. In view of such situation, confusion arose as fact sired by Edward Padilla, thus bringing their legitimate
to her parentage and she had been subjected to inquiries status into discredit.
why she is using Vicencio as her family name, both by her
classmates and their neighbors, causing her extreme Private respondent, might sincerely wish to be in a position
embarrassment. She consulted her step-father about the similar to that of her step-fathers legitimate children, a
petition, and the latter consented to it. plausible reason the petition for change of name was filed
in the first place. Moreover, it is laudable that Ernesto Yu has
The Solicitor General opposed but the trial court granted treated Cynthia as his very own daughter, providing for all
the petition. The decision was affirmed by the Court of her needs as a father would his own flesh and blood.
Appeals, which held that it is for the best interest of Cynthia However, legal constraints lead us to reject private
that her surname be changed. respondents desire to use her stepfathers surname. Further,
there is no assurance the end result would not be even more
The Solicitor General appealed, arguing that there is no detrimental to her person, for instead of bringing a stop to
proper and reasonable cause to warrant Cynthia’s change of questions, the very change of name, if granted, could trigger
surname. Such change might even cause confusion and give much deeper inquiries regarding her parentage.
rise to legal complications due to the fact that her step-
father has two (2) children with her mother. In the event of In the case of IN RE: PETITION OF JULIAN LIN CARULASAN
her step-father’s death, it is possible that Cynthia may even WANG, the mother filed the petition in behalf of Julian, that
claim inheritance rights as a “legitimate” daughter. The he be allowed to drop the middle name because according to
Solicitor General opines that Ernesto Yu has no intention of the mother, it would be easier for Julian to adapt to the
making Cynthia as an heir because the change of family Singaporean society if he would drop the middle name. The
name to Yu could very easily be achieved by adoption, but SC denied the petition because the middle name daw
Ernesto has not opted for such a remedy. identitifes maternal lineage to distinguish him from other
persons who may have the same first name and surname.
Issue: Moreover, the reasons cited by the mother were not among
May Cynthia be allowed to adopt the surname of his step- those mentioned in the law as would justify the dropping of
father? the middle name (like the name is ridiculous or difficult to
pronounce or write or dishonorable etc etc.)
Held:
The touchstone for the grant of a change of name is that
there be proper and reasonable cause for which the change In Re: Petition of Julian Lin Carulasan Wang
is sought. The assailed decision as affirmed by the appellate
court does not persuade us to depart from the applicability Issue: May Julian Lin Carulasan Wang drop his middle
of the general rule on the use of surnames, specifically the name?
law which requires that legitimate children shall principally
use the surname of their father. Held:
No. Middle names serve to identify the maternal lineage or
Cynthia is the legitimate offspring of Fe Leabres and Pablo filiation of a person as well as further distinguish him from
Vicencio. As previously stated, a legitimate child generally others who may have the same given name and surname as
bears the surname of his or her father. It must be stressed he has. When an illegitimate child is legitimated by
that a change of name is a privilege, not a matter of right, subsequent marriage of his parents or acknowledged by the
addressed to the sound discretion of the court, which has father in a public instrument or private handwritten
the duty to consider carefully the consequences of a change instrument, he then bears both his mother's surname as his
of name and to deny the same unless weighty reasons are middle name and his father's surname as his surname,
shown. reflecting his status as a legitimated child or an
acknowledged natural child. The registered name of a
Confusion indeed might arise with regard to private legitimate, legitimated and recognized illegitimate child
respondents parentage because of her surname. But even, thus contains a given name, a middle name and a surname.
more confusion with grave legal consequences could arise if
we allow private respondent to bear her step-fathers The State has an interest in the names borne by individuals
surname, even if she is not legally adopted by him. While and entities for purposes of identification, and that a change
previous decisions have allowed children to bear the of name is a privilege and not a right, so that before a person
surname of their respective step-fathers even without the can be authorized to change his name given him either in his
benefit of adoption, these instances should be distinguished certificate of birth or civil registry, he must show proper or
from the present case. In Calderon vs. Republic, and Llaneta reasonable cause, or any compelling reason which may

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justify such change. Otherwise, the request should be parent. Hence, Stephanie can assert her hereditary rights
denied. from her natural mother in the future.

To justify a request for change of name, petitioner must In GRANDE VS ANTONIO, this refers to the use of the word
show not only some proper or compelling reason therefore “shall” in the IRR of RA 9255, because in said law, it said
but also that he will be prejudiced by the use of his true and “shall” use the surname. So the parents decided to separate
official name. Among the grounds for change of name which and Grace wanted to bring the children with her to Canada. At
have been held valid are: (a) when the name is ridiculous, the time that they were living together, Antonio did not
dishonorable or extremely difficult to write or pronounce; recognize the children. The SC said that the right to choose
(b) when the change results as a legal consequence, as in the surname of the recognizing parent shall be on the child.
legitimation; (c) when the change will avoid confusion; (d) Art. 176 says the child shall use the surname of mother.
when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien
parentage; (e) a sincere desire to adopt a Filipino name to Grace Grande vs Patricio Antonio
erase signs of former alienage, all in good faith and without G.R. No. 206248
prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired Facts:
change of name was for a fraudulent purpose or that the Grande and Antonio had an illicit relationship. Out of it was
change of name would prejudice public interest. born two children. Antonio did not expressly recognize the
illegitimate children. He wanted to have the children use his
In the case at bar, the only reason advanced by petitioner for surname.
the dropping his middle name is convenience. However,
how such change of name would make his integration into Issue:
Singaporean society easier and convenient is not clearly Whether or not it is legal to let the illegitimate children use
established. That the continued use of his middle name Antonio surname even when they were not expressly
would cause confusion and difficulty does not constitute recognized by the father.
proper and reasonable cause to drop it from his registered
complete name. Held:
The case was reprimanded to the RTC.
In addition, petitioner is only a minor. Considering the
nebulous foundation on which his petition for change of However, according to Article 176 of the Family Code which
name is based, it is best that the matter of change of his was amended by RA 9255 Illegitimate children shall use the
name be left to his judgment and discretion when he surname and shall be under the parental authority of their
reaches the age of majority. As he is of tender age, he may mother, and shall be entitled to support in conformity with
not yet understand and appreciate the value of the change this Code. However, illegitimate children may use the
of his name and granting of the same at this point may just surname of their father if their filiation has been expressly
prejudice him in his rights under our laws. recognized by their father through the record of birth
appearing in the civil register, or when an admission in a
public document or private handwritten instrument is
In the case of ASTORGA, Stephanie was adopted by her father made by the father. Provided, the father has the right to
and the court granted the petition so she now uses the institute an action before the regular courts to prove non-
surname of the father, but in a partial motion for filiation during his lifetime. The legitime of each illegitimate
reconsideration, the father prays that she be allowed to retain child shall consist of one-half of the legitime of a legitimate
the surname Garcia as middle name. The court granted the child.
MFR, citing the vested interest of Stephanie. Further the court
said that allowing her to use the surname of the mother as her According to the rule on statutory construction, the use of
middle name will not only sustain her continued loving 'may' is permissive and operates to confer discretion. In
relationship with her mother but also eliminates the stigma applying the same to the case at bar, the use of the word
of her illegitimacy. 'may' in the provision readily shows that an acknowledged
illegitimate child is under no compulsion to use the
IN THE MATTER OF THE ADOPTION OF STEPHANIE surname of his illegitimate father.
NATHY ASTORGA GARCIA
MARCH 31, 2005 The difference between the SILVERIO and CAGANDAHAN
cases:
Issue: May an illegitimate child be allowed to use her
natural mother’s surname as his/her middle name when Silverio had a sex change or reassignment operation in
the child has been subsequently adopted by his/her natural Bangkok, Thailand. On the other hand, Cagandahan has
father? Congenital Adrenal Hyperplasia (CAH) which is a condition
where a person possesses both male and female
RULING: characteristics. As the Supreme Court stated:
YES. Being a legitimate child by virtue of her adoption, it
follows that Stephanie is entitled to all the rights provided Cagandahan simply let nature take its course and has not
by law to a legitimate child without discrimination of any taken unnatural steps to arrest or interfere with what he was
kind, including the right to bear surname of her father and born with. And accordingly, he has already ordered his life to
her mother. Stephanie’s continued use of her mother’s that of a male. Respondent could have undergone treatment
surname as her middle name will maintain her maternal and taken steps, like taking lifelong medication, to force his
lineage. The Adoption Act and the Family Code provide that body into the categorical mold of a female but he did not. He
the adoptee remains an intestate heir of his/her biological chose not to do so. Nature has instead taken its due course in

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respondent's development to reveal more fully his male This is also in consonance with Article 364.
characteristics. Art. 364. Legitimate and legitimated children shall
principally use the surname of the father.
Silverio deliberately took the sex reassignment operations to
change his body to that of a woman. Cagandahan, on the other In relation to that is Article 174 of the Family Code which says
hand, from birth had a female body, male hormones, two sex to bear the surname of the father and the mother, it did not
organs, and no monthly period. say shall. In the event that it will be asked in the bar, you can
cite the case of Alfon vs. Republic. Because Article 368
referring to illegitimate children, is also in consonance with
September 14, 2018 Article 176 of the Family Code, which says, shall use the
surname of the mother.
USE OF SURNAMES
So the other important provision on surname is Article 376.
Can the legitimate child use the surname of the mother
Art. 376. No person can change his name or surname
instead of the father? Walang problema sa illegitimate child
without judicial authority.
because Article 176 provides “shall bear the surname of the
mother.” But what about the legitimate child? The child does
not want to use the surname of the father, anong nakalagay But this has been amended by virtue or RA 9048, which
sa Article 174? “To bear the surname of the father or the allows now the change of name or nickname through
mother,” it didn’t say “shall,” different diba, because the law administrative proceeding, so it ceases to be judicial.
is very explicit.
This was further amended by RA 10172 which now includes
the correction on the gender or sex as well as the date of birth
Art. 174. Legitimate children shall have the right:
of an individual. Only that, in the correction of gender or sex,
you have to attach a certification coming from a government
(1) To bear the surnames of the father and the
physician that the petitioner had not undergone sex
mother, in conformity with the provisions of the
reassignment. On the change of date of birth, you have to
Civil Code on Surnames;
attach the oldest record, whether school, medical or even
(2) To receive support from their parents, their
religious records. So, those can be considered as proof for
ascendants, and in proper cases, their brothers
purposes of change of name, gender and date of birth.
and sisters, in conformity with the provisions of
this Code on Support; and Xxx
I will give you all the cases involving RA 10172 before your
exam.
Art. 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and
The other cases involving surnames, of course, we have the
shall be entitled to support in conformity with this Code.
case of Remo vs. Secretary which we have already
Xxx
discussed. Where she prayed that she be allowed to revert to
her former maiden name, it went up to the SC, it was denied.
There was this case, Alfon vs. Republic, where the SC said
that the word “principally” and not “exclusively” use the Then the case of Grande vs. Antonio (2014), as between the
surname of the father, so kung andun is “only or exclusively,” implementing rules and regulations (IRR) and the law, (RA
then it shall be the surname of the father. 9255), because the IRR uses the word “shall,” instead of
“may.” Under RA 9255 it is “may” bear the surname of the
Alfon vs. Republic(1980) father if recognized by the father.According to the court what
would prevail would be the law. So, it is solely at the option
From the FT: SC: But the word "principally" as used in the of the illegitimate child to use the surname of the father, even
codal provision is not equivalent to "exclusively" so that if the father recognizes the child. The mother in fact, does not
there is no legal obstacle if a legitimate or legitimated child have to consent to the use of the surname, but principally, the
should choose to use the surname of its mother to which illegitimate child, whether parental authority for use of
it is equally entitled. surname(?), shall use the surname of the mother. It will be
optional on the part of the child to use the surname of the
So if you are going to relate the provisions of the Civil Code father if recognized, but there is no obligation.
on surnames – Article 174 number 2 on the rights of the
legitimate children then there is no conflict, isn’t? Because
whether it is Article 174 or the provisions of the civil code on ABSENCE
surname, there is no mandatory requirement on the part of
the legitimate child to use the surname of the father. Sabi nga The absence here is different from the absence under Article
ng court in the case of Alfon, it does not say exclusively. And 41. Here, it is for the purpose of administering the exclusive
hence according to the court, there is no legal obstacle if a property of the absentee spouse. That is why, it is required
legitimate child should choose the mother’s surname to that before the spouse-present can administer the exclusive
which he or she is legally entitled. But just take note that the property of the missing spouse, there must first be a judicial
father might refuse to support you. In case that might be declaration of absence, which may be:
asked, at least you have this case of Alfon vs. Republic. Even a. 2 years if there was no administrator appointed
in the Civil code, the illegitimate children referred to shall prior to the absence, or
bear the surname of the mother. b. 5 years if prior to the absence he has appointed an
administrator over his property.
Art. 368. Illegitimate children referred to in Article 287
shall bear the surname of the mother. And of course, the spouse present is given the preference.

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Art. 383. In the appointment of a representative, the (3) A person who has been in danger of death under other
spouse present shall be preferred when there is no legal circumstances and his existence has not been known for
separation. four years.

If the absentee left no spouse, or if the spouse present is a


minor, any competent person may be appointed by the FUNERALS
court.
Article 305.
Art. 384. Two years having elapsed without any news Art. 305. The duty and the right to make arrangements
about the absentee or since the receipt of the last news, for the funeral of a relative shall be in accordance with the
and five years in case the absentee has left a person in order established for support, under Article 294 (Maam
charge of the administration of his property, his absence G: This now is Article 199 of the FC).
may be declared.
In case of descendants of the same degree, or of brothers
Art. 385. The following may ask for the declaration of and sisters, the oldest shall be preferred. In case of
absence: ascendants, the paternal shall have a better right.
(1) The spouse present;
(2) The heirs instituted in a will, who may present an In the case of Valino vs. Adriano (2014).
authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy; Valino vs. Adriano (2014)
(4) Those who may have over the property of the
absentee some right subordinated to the condition of his Facts: Adriano is a lawyer who is separated from the wife
death. Rosario. After 20 years, he courted Valino his client. They
lived together as husband and wife, but the relationship of
Then we have this presumption of death under Article 390 on the family is smooth, sometimes they would go on
ordinary absence. vacations together, there was no problem. Anyway, at the
time of the death of Adriano, Rosario was at the US visiting
Art. 390. After an absence of seven years, it being her children, so Valino called up Rosario and informed her
unknown whether or not the absentee still lives, he shall of the death. Rosario requested to delay the internment of
be presumed dead for all purposes, except for those of the husband. But when she returned to the Philippines, he
succession. was already buried in the memorial park owned by the
paramour. It was the wish of Adriano that he be buried in
The absentee shall not be presumed dead for the purpose his paramour’s memorial park, as alleged by Valino.
of opening his succession till after an absence of ten years.
If he disappeared after the age of seventy-five years, an Issue: Who has a better right over the funeral
absence of five years shall be sufficient in order that his arrangement.
succession may be opened.
Held: Rosario, the legal wife.
The latest case is Matias vs. Republic.
Matias vs. Republic Of course, we look into Article 305 of the CC in relation to
Article 199 of the FC:
Facts: The husband who disappeared in 1979 was a
member of the Philippine constabulary, and she wanted to Art. 199. Whenever two or more persons are obliged
avail of the benefits due her under PD 1638, she filed this to give support, the liability shall devolve upon the
petition for declaration of the presumptive death of the following persons in the order herein provided:
husband. (1) The spouse;
(2) The descendants in the nearest degree;
Held: According to the court, that is a wrong remedy, (3) The ascendants in the nearest degree; and
because it is the law itself that provides the presumption (4) The brothers and sisters
of death, and even if the court will so declare, it can never
attain finality because it is merely a presumption. Aside from the fact that there was no evidence on the said
wish, Tolentino said that while there might be an express
So the court said that there is no need to file before the wish, but this must not be contrary to law. So it cannot be
court to declare the missing spouse as presumptively dead granted even if it is the express wish of the husband. And
for purposes other than remarriage. Because article 41 is the rights and obligations under the law is very clear, it is
solely for the purpose of remarriage. It was error on the the spouse, if married.
part of the lower court to grant the petition.

Then Article 391. So we go to the CIVIL REGISTER.


Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the The important thing here would be – what are those that can
heirs: be found in the civil register and as to what value are the
books making up the civil register. Article 410.
(1) A person on board a vessel lost during a sea voyage, or
an aeroplane which is missing, who has not been heard of Art. 410. The books making up the civil register and all
for four years since the loss of the vessel or aeroplane; documents relating thereto shall be considered public
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;

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From the Lectures of Atty. Lydia Galas 54
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documents and shall be prima facie evidence of the facts sole purpose of declaring the marriage void. Because in the
case at bar, there really was no marriage that had occurred.
therein contained.
Art. 411. Every civil registrar shall be civilly responsible
for any unauthorized alteration made in any civil register,
to any person suffering damage thereby. However, the
civil registrar may exempt himself from such liability if he
proves that he has taken every reasonable precaution to
prevent the unlawful alteration.

Art. 412. No entry in a civil register shall be changed or


corrected, without a judicial order.

Going back to the case of Silverio vs. Republic, of course the


court disallowed the petition to change his name and gender.
Because, according to the court, aside from the fact that it was
wrongfully filed it was the wrong venue, it should have been
administrative and not judicial.

In Republic vs. Cagandahan it was allowed because it was


really proven that the disorder is one that is medically
explained. The petitioner was suffering from Congenital
Adrenal Hyperplasia.

In the case of Corpuz vs. Sto. Tomas, the court said that if the
court recognizes the decree of divorce, it does not necessarily
follow that it will immediately cause the correction; he has to
first file the proper petition pursuant to Rule 108 of the Rules
of Court to cancel the entries in his marriage contract that
was filed before the Civil Registrar.

In Iwasawa vs. Gangan, Iwasawa merely presented as proof


– certifications coming from the Civil Registrar, where he
filed this petition to declare his marriage with Gangan as void.
So he obtained certifications coming from the civil registrar
and presented it before the court. The first was his marriage
with Gangan, then his prior marriage with Arambulo, and of
course the death certificate of Arambulo that occurred after
the marriage of Gangan with Iwasawa. And this was not
considered by the court, because according to the court he
should have presented the employee of the office from where
he obtained the certifications. But the Supreme Court said
there is no need, because of Article 410. Ano ang value?

Art. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained.

So there is no need for the petitioner to present the employee


of the office from where the petitioner obtained the
certifications.

In the case of Republic vs. Olaybar, wherein she found out


that she was already married to a Korean national, when in
fact she was not. She tried to obtain a certificate of marriage,
but when issued, there was already a prior marriage with a
Korean. What she did, was to present the employee of the
court where the marriage was solemnized. And who in fact
testified that there really was one marriage solemnized with
the Korean national and one Merlinda Olaybar, but not the
same Merlinda Olaybar who was the petitioner in this case.
This was opposed by the Republic, because according to the
court, it was actually a petition to declare the marriage void.
But the Supreme Court said no, because there really was no
marriage that had occurred and thus, there is no violation of
that requirement that there must be a petition filed for the

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