C. RULE ON PROVISIONAL ORDERS The Rule on Provisional Orders is A.M. No.

02-11-12-SC, which took effect on March 15, 2003.

(#2 and #3)

2.) BEN-HUR NEPOMUCENO vs. ARHBENCEL ANN LOPEZ, represented by her

mother ARACELI LOPEZ.

G.R. No. 181258 March 18, 2010

Facts:

Respondent Arhbencel Ann Lopez represented by her mother Araceli Lopez, filed a
Complaint with RTC for recognition and support against petitioner Ben-Hur Nepomuceno.
Arhbencel claimed to have been begotten out of an extramarital affair of petitioner with Araceli,
respondent was Born on June 8, 1999. She also alleged that petitioner refused to affix his
signature on her Certificate of Birth; and that, by a handwritten note dated August 7, 1999,
petitioner nevertheless obligated himself to give her financial support in the amount of ₱1,500 on
the 15th and 30th days of each month beginning August 15, 1999.

She argued that her filiation to petitioner was established by the handwritten note, Arhbencel
prayed that petitioner be ordered to: (1) recognize her as his child, (2) give her support pendente
lite in the increased amount of ₱8,000 a month, and (3) give her adequate monthly financial
support until she reaches the age of majority.

Petitioner denied that he was the father of Arhbencel and alleged that he was only
forced to execute the handwritten note on account of threats coming from the National
People’s Army.
The trial court dismissed the complaint, ruling that, among other things, Arhbencel’s
Certificate of Birth was not prima facie evidence of her filiation to petitioner as it did not
bear petitioner’s signature; that petitioner’s handwritten undertaking to provide support
did not contain a categorical acknowledgment that Arhbencel is his child; and that there
was no showing that petitioner performed any overt act of acknowledgment of
Arhbencel as his illegitimate child after the execution of the note.

Issue:

WON the handwritten note is sufficient to establish Arhbencel’s filiation as an

illegitimate child

Ruling:
No. Arhbencel’s entitlement to support from petitioner is dependent on the
determination of her filiation. The handwritten note does not contain any statement
whatsoever about Arhbencel’s filiation to petitioner. It is, therefore, not within the ambit
of Article 172(2) vis-à-vis Article 175 of the Family Code which provides that the filiation
of illegitimate children may be established by a private handwritten instrument signed by
the parent concerned admitting such filiation. Here, petitioner has not only consistently
denied his filiation with Arhbencel, he has also not performed any contemporaneous
acts admitting such filiation.
The only other documentary evidence submitted by Arhbencel, a copy of her Certificate
of Birth, has no probative value to establish filiation to petitioner because the latter has
not signed the same.

3.) SPOUSES PRUDENCIO and FILOMENA LIM vs. MA. CHERYL S. LIM, for
herself and on behalf of her minor children LESTER EDWARD S. LIM, CANDICE
GRACE S. LIM, and MARIANO S. LIM, III

G.R. No. 163209 October 30, 2009

Facts:

In 1979, respondent Cheryl S. Lim married Edward Lim, son of petitioners. Cheryl bore
Edward three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl,
Edward and their children resided at the house of petitioners in Forbes Park, Makati City,
together with Edward’s ailing grandmother, Chua Giak and her husband Mariano Lim. Edward’s
family business, which provided him with a monthly salary of ₱6,000, shouldered the family
expenses. Cheryl had no steady source of income.

On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children
with her who were all minors, after a violent confrontation with Edward whom she caught with
the in-house midwife of Chua Giak in what the trial court described "a very compromising
situation."

Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano in
the Regional Trial Court of Makati City for support. The trial court ordered Edward to provide
monthly support of ₱6,000 pendente lite.

Issue:

WON petitioners are concurrently liable with Edward to provide support to respondents.

Ruling:

YES. CA contends that “while Edwards income is insufficient, the law itself sanctions its
effects by providing that legal support should be in keeping with the financial capacity of the
family under Article 194 of the Civil Code, as amended by Executive Order No. 209.”
Edwards parents’ partial concurrent obligation extends only to their descendants as this
word is commonly understood to refer to relatives, by blood of lower degree.
“The obligation to provide legal support passes on to ascendants not only upon default of the
parents but also for the latters inability to provide sufficient support. This inability of Edward
and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the
ascendants in the nearest degree, both in the paternal (petitioners) and maternal lines, following
the ordering in Article 199.”

D. PETITION FOR CUSTODY OF MINORS

(#1 and #2)

1.) AGNES GAMBOA-HIRSCH vs. HON. COURT OF APPEALS and FRANKLIN

HARVEY HIRSCH

G.R. No. 174485 July 11, 2007

Facts:

Franklin and Agnes were married and was blessed with a child named Simone. They
established their conjugal dwelling in Diniwid, Boracay Island, Malay, Aklan. The couple started
to have marital problems as Agnes wanted to stay in Makati City, while Franklin insisted that
they stay in Boracay Island. On March 23, 2006, Agnes came to their conjugal home in Boracay,
and asked for money and for Franklin’s permission for her to bring their daughter to Makati City
for a brief vacation. Franklin readily agreed, but soon discovered that neither Agnes nor their
daughter Simone would be coming back to Boracay.

Franklin then filed a petition for habeas corpus before the CA for Agnes to produce
Simone in court, the CA issued a Resolution which ordered that a writ of habeas corpus be issued
ordering that Simone be brought before said court on May 26, 2006. After a series of hearings
and presentation of evidence, the CA, on June 8, 2006, promulgated the assailed Decision
granting Franklin joint custody with Agnes of their minor child. Agnes filed a Motion for
Reconsideration of this Decision, which was denied.

Issue:

WON sole cudtody may be given to the mother of the child.

Ruling:

YES. The Convention on the Rights of the Child provides that "in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration (emphasis supplied)."5 The Child and Youth Welfare Code, in the same way,
unequivocally provides that in all questions regarding the care and custody, among others, of the
child, his/her welfare shall be the paramount consideration.6
 The so-called "tender-age presumption" under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother’s unfitness. The mother is declared
unsuitable to have custody of her children in one or more of the following instances: neglect,
abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of
the child, insanity, or affliction with a communicable disease.7 Here, the mother was not shown
to be unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason
has been adduced to wrench the child from the mother’s custody.1avvphi1

2.)PABLO-GUALBERTO VS. COURT OF APPEALS

G.R. Nos. 154994 and 156254 June 28, 2005
Facts:
Crisanto Rafaelito G. Gualberto V filed before the RTC a petition for declaration of
nullity of his marriage to Joycelyn with an ancillary prayer for custody pendente lite of their
almost 4 year old son, Rafaello, whom her wife took away with her from their conjugal home
and his school when she left him.
The RTC granted the ancillary prayer for custody pendente lite, since the wife failed to appear
despite notice. A house helper of the spouses testified that the mother does not care for the child
as she very often goes out of the house and even saw her slapping the child. Another witness
testified that after surveillance he found out that the wife is having lesbian relations.
The judge issued the assailed order reversing her previous order, and this time awarded
the custody of the child to the mother. Finding that the reason stated by Crisanto not to be a
compelling reason as provided in Art 213 of the Family Code.

Issue:
WON the custody of the minor child should be awarded to the mother.

Ruling:
Article 213 of the Family Code provided: “Art 213. In case of separation of parents
parental authority shall be exercised by the parent des granted by the court. The court shall take
into account all relevant consideration, especially the choice of the child over seven years of age,
unless the parent chosen is unfit.”
No child under seven yrs of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise,”
This Court has held that when the parents separated, legally or otherwise, the foregoing
provision governs the custody of their child. Article 213 takes its bearing from Article 363 of the
Civil Code, which reads:
“Art 363. In all question on the care, custody, education and property pf children,
the latter welfare shall be paramount. No mother shall be separated from her
child under seven years of age, unless the court finds compelling reason for such
measure.”