Cases on Specpro for Finals

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Special Procedure Law 3a

TRUSTEE

G.R. No. L-16708 October 31, 1962

TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO allsurnamed PEREZ Y TUASON, PHILIPPINE NATIONAL BANK, JudicialGuardian of BENIGNO PEREZ, ANTONIO M. PEREZ, judicial guardian-appellant,

vs.J. ANTONIO ARANETA, trustee-appellee.

Alf onso Felix, Jr. for judicial guardi an-appellan t.

Araneta and Araneta for tr ustee-appell ee.

CONCEPCION, J.:

This is an appeal by writ of error from an order of the Court of First Instance of Rizal

denying a motion of appellant, Antonio M. Perez, as judicial guardian of his

children, the minors Benigno, Angela, and Antonio, all surnamed Perez y Tuason.

In pursuance of the provisions of the will of the late Angela S. Tuason which was

probated in Special Proceedings No. 585 of said Court appellee J. AntonioAraneta was on March 24, 1950, appointed, in Special Proceedings No. Q-73 of the

same Court, as trustee of property bequeathed by the deceased to some of her heirs,

including her grandchildren, the aforementioned minors. On October 4, 1950,

appellee moved for the approval of accounts and the fixing of his compensation as

such trustee. Appellant's wife, Angela I. Tuason, hereafter referred to as Mrs. Perez,

as well as the mother and guardian at the time, of said minors, objected thereto and

urged the court to remove appellee as trustee and appoint the Philippine Trust in his

place and to revoke, not only certain sale made by him, but, also, an order of the

court dated March 24, 1950, granting him the power to sell trust properties without

special judicial authorization therefor. Subsequently, appellant joined his wife inseeking this relief. After appropriate proceedings, said Court issued on December 23,

1950, an order approving said accounts, deferring action on the compensation of the

trustee, modifying in part said order of March 24, 1950, and denying the motion of

Mrs. Perez. The pertinent part of the aforementioned order of December 23, 1950,

reads as follows:

It being established that the trust was expressly created by the deceased, we

shall now examine whether the trustee comes under the active supervision

of the Court and whether our order of March 24, 1950, granting to said

trustee authority to sell the trust res without the need of judicial

authorization erroneous or not. The Court accepts in view urged by the

trustee that only when the testator "has omitted in his will to appoint a

trustee" may the Court appoint one. This is in a accordance with Section 2,

Rule 99, of the Rules of Court. When an express trust has been created, the

powers of the trust shall be determined by the trust instrument itself. In this

particular case, the trustee J. Antonio Araneta was given "amplios poderes

de vender los mismos". The testatrix emphasizes her desire that the trustee

shall have ample powers when in another part of her will she states that the

powers of said trustee shall be "los poderes mas amplios permitidos por la

ley". There is nothing against the law for a trustor to grant to the trustee

ample powers, and when the deceased Angela S. Tuason granted saidpowers to the trustee, she emphasized her intention that in the exercise of

said powers by the trustee, there should be no court supervision.

"By the terms of trust, it may be left to the discretion of the trustee

whether or not to exercise a power, or where he is directed to

exercise the power, the time and manner of its exercise may be left

to his discretion. To the extent to which the trustee has discretion,

the Court will not control his exercise as long as he do not exceed

the limits of the discretion conferred upon him. The court will not

substitute its own judgment for his . . . . The cases are numerous in

which it has been held that where discretion is conferred upon the

trustee with respect to the exercise of a power, the court will notinterfere with him in his exercise or failure to exercise the power

so long as he is not guilty of an abuse of discretion. (Scott on

Trusts, Vol. 2, Sec. 187)"

Such being the case, there is no reason for the court to intervene in the

execution by the trustee of the powers granted to him by the trustor. We

conclude, therefore, that our order of March 24, 1950 granting authority to

the trustee J. Antonio Araneta to sell the trust res without judicial authority

is correct.

For the purpose, however, of safeguarding the interests of the beneficiaries

of this trust, said order is hereby amended as follows:

(a) That the bond of the trustee is hereby increased from P10,000.00 to

P30,000.00 and the premium for the bond (P30,000.00) shall be for the

account of the trust;

(b) That the Trustee may sell, encumber or otherwise dispose of any of the

trust res without the need of judicial authorization; provided, that if the

amount involved exceeds P30,000.00, the trustee shall notify the natural

guardians or the judicial guardian in case there be one appointed by the

Court of the beneficiaries ten (10) days before the proposed sale or

encumbrance is executed, and in case the amount involved be P30,000.00 or


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less, the trustee shall advise said guardians within ten (10) days after

executing a deed of sale or encumbrance.

WHEREFORE, (1) the accounts filed by the trustee as per Annexes A, B,

and C attached to his motion of October 5, 1950 are hereby approved; (2)

the petition of trustee to fix his compensation is hereby deferred until such

time as he shall present it again; (3) the petition filed by the parents of the

minors for the removal of the trustee J. Antonio Araneta is hereby denied.

Likewise, their petition that the Philippine Trust Co. or Atty. Frank W.Brady be appointed co-trustee denied; 4) the petition that the sale of the bed

in favor of Antonio Tuason, Jr. be revoked is hereby denied; and (5) the

petition that the order of this court, dated March 24, 1950, giving the trustee

power to sell without the need of judicial authorization be revoked is also

hereby denied.

A reconsideration of this order having been denied, & Mrs. Perez filed with the

Supreme Court a petition G.R. No. L-6182 thereof forcertiorari, with

preliminary injunction, to annul said orders of March 24 and December 23, 1950. A

writ of preliminary injunction was issued this by Court soon thereafter. In a decision

promulgated April 13, 1955, we denied said petition and dissolved said writ of

preliminary injunction.

In pursuance of the aforementioned orders of March 24 and December 23, 1950,

appellee wrote on June 23, 1959, to appellant, as the then judicial guardian of said

minor a letter informing him of a proposed sale to Ortigas & Co., Ltd., of several lots

under trusteeship, located in Marikina, Rizal, and aggregating 42.6091 hectares, at

the rate of P2.93 a square meter. We quote from said communicable petition:

Pursuant to the order of the Court of First Instance of Quezon City in

trusteeship proceeding No. Q-73, I with to advise you that ten (10) days

after your receipt of this letter, I, in my capacity as trustee in said

proceedings, shall execute deed of sale with mortgage in favor of Ortigas &

Company Limited Partnership, the following lots located at Marikina whichform part of the trust estate:

T.C.T. No.

(Rizal)Lote No. Psd.

Area

(Sq m.)

22395 49-C-3-A-3-C-1-A-2 29965 249

" 49-C-3-A-3-C-2-A-2-B " 138,682

" 49-C-3-A-3-C-1-A-1 " 273

" 49-C-3-A-3-C-2-A-2-A " 159,054

" 49-C-3-A-3-C-2-A-7 18247 21,089

22396 49-C-3-A-3-C-3-A-3-1-4 29965 24,040

" 49-C-3-A-3-C-3-A-3-A-4-A-1 " 7,968

" 49-C-3-A-3-C-3-A-3-A-4-A-3 " 74,736

The price is P1,250,000.00 payable under the following conditions:

1. Upon acceptance of the proposal, the sum of P20,000.00.

2. Upon signing the deed of sale with mortgage, the sum of P300,000.00.

3. The balance shall be paid within a period of one and a half-years, with

interest at 6% per annum.

4. The property must be sold from all liens and encumbrances, particularly aguarantee that there are no squatters.

5. Broker's commission shall be for buyer's account.

Three (3) days later, appellant informed appellee by letter (Exhibit C) of his

(appellant's) objections to the proposed sale. Moreover, on July 1, 1959 appellant

filed, in the trusteeship proceedings, a motion praying for a writ of preliminary

injunction to restrain appellee from proceeding with the sale. Subsequently, the

Philippine National Bank, as guardian of the estate of Benigno Perez y Tuason, one

of the heirs of Angela I. Tuason, deceased, adopted said motion of appellant herein

as its own. At the instance of appellant, a notice of lis pendenswas, on July 29, 1959,

annotated on the original certificates of title to the property in question.

After due hearing, the lower court issued an order, dated October 15, 1959, denying

appellant's motion and petition for a writ of preliminary injunction. Hence, this

appeal by Antonio M. Perez. The Philippine National Bank has not joined him in the

appeal. Subsequently, appellee effected the sale aforementioned to Ortigas & Co.,

Ltd.

The main issues are: (1) whether or not the sum of P2.93 per square meter agreed

upon with Ortigas & Co., Ltd., is the fair market value of the property

aforementioned; and (2) whether the sale thereof would be injurious to the interest of

the beneficiaries orcestui que trust.


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With respect to the first issue, appellant maintains that the fair market value of the

property above referred to is P5.00 a square meter, as stated in the report (Exhibit E)

of his realty estate expert, Mr. A. Varias. It appears from this report that the

conclusion therein reached by Mr. A. Varias is based upon (a) some offers to sell

properties located in the vicinity of the one involved in this case; and (b) certain sales

of real estate specified in the report.

However, offers to sell are not competent evidence of the fair market value of a

property. Said offers to sell are no better than offers to buy, which have been held beinadmissible as proof of said value. (City of Manila Estrada, 25 Phil. 208; Manila

Railroad Co. vs. Aguila 35 Phil. 118; City of Davao vs. Dacudao L-3741, May 2,

1952.) Indeed,

. . . To imagine a sale without a buyer would be absurd, for if there is no

buyer the commodity would bring nothing . . . .

In discussing the term "market value" the author of a well-known treaties on

the subject of damages observes that to make a market there must be both

buying and selling; and the "market value" says he, is that reasonable sum

which the property would bring on a fair sale by a man willing but not

obliged to sell to a man willing but not obliged to buy. (Sedgewick onDamages, sec. 245; cited in Compagnie Franco-Indo Chinoise vs. Deutsch-

Australiache, 39 Phil. 474.)

The aforementioned report relies, also, upon the sale a lot of 9,679 square meters at

P5.70 a square meter and two (2) sales each of lot of 20,000 square meters and a sale

of a lot of 281,452 square meters, at P4.00 square meter. These transactions can not

serve as basis for the determination of the value of the property in dispute for the

lands involved in the former are much smaller than the latter, the area of which is

426,091 square meters, and it is a matter of common knowledge that the price

becomes lesser as the size of the property sold becomes bigger. Moreover, the lands

covered by said transactions do not appear to be in the vicinity of the property in

litigation. What is more, no effort has been made to prove that the nature andcondition of the former are analogous, or at least, comparable to those of the latter.

InManila Railroad Co. vs. Mitchell(49 Phil. 801), this Court held:

. . . The exhibits were clearly inadmissible in evidence and properly rejected

by the (lower) court. In order that such evidence may be admitted, it is

necessary that the properties sold be in the immediate neighborhoodor

within the zone of the commercial activity with which the condemned

property is identified. (Emphasis supplied.)

Upon the other hand, it appears that in 1955 the Universal Textile Mills bought a lot

of 110,004 square meters near the trust properties in question at P2.50 a square

meter, whereas a land of 213,458 square meters, situated in the same neighborhood,

was, in 1956, acquired by the Manila Bay Spinning Mill, at P1.50 a square meter.

Again, prior to the sale of said trust properties to Ortigas & Co., Ltd. offers to

purchase the same neighborhood were made by United Laboratories, Inc. and one

Mr. Philipps at P2.50 and P2.70, respectively, a square meter. It would thus appear

that the price of P2.93 a square meter agreed upon with Ortigas & Co., Ltd. is fairly

representative of the market value of said land, and this is borne out by the testimony

of Arturo Ruis and Lauro Marquez, the real estate brokers who took the witness

stand for herein appellee.

It is next urged that the sale of the property in question is not only unnecessary, but

also injurious to the minors represented by appellant herein, by reason of possible

devaluation, and high income taxes. This pretense is predicated, however, upon sheer

speculation. Furthermore, the last will and testament of Angela S. Tuason, in

pursuance of which the trust was established, provides that:

Cuarta. Instituyo como mis unicos herederos a mis mencionados tres

hijos a razon de una novena parte del caudal hereditario que dejare para

cada uno de rellos. Lego a mi hijo Antonio otra porcion equivalente a dos

novenas partes del caudal hereditario. Lego asi mismo a mis nietos que

fueren hijos de mi hija Nieves, otra porcion equivalents a dos novenaspartes del caudal hereditario. Y finalmeinte lego a mis nietos que fueren

hijos de mi hija Angela otra porcion equivalente a dos novenas partes del

caudal hereditario. Dichos tres legados, sin embargo, estansuietos a la

manda que se menciona en el parrafo siguiente Los dos legados a favor de

mis mencionados nietos seran administrados por mi Albacea J. Antonio

Araneta (y en defecto de este, su hermano, Salvador Araneta), con amplios

poderes de Nender los mismos, y con su producto adquirir otros bienes, y

con derecho a cobrar por su administracion, honorarios razonables Los

poderes de dicho administrador seran los de un trustee con los poderes mas

amplias permitidos por la ley Debera sin embargo, rendir trimestral mente

cuenta de su administracion a los legatarios que fueren mayores de edad y a

los tutores de los que fueren menores de edad Y asimismo debera hacerlesentrega de la participacion que a cada legatario corresponda en las rentas

netas de la administracion. La administracion sobre un grupo cesara cuando

todos mis nietos de dicho grupo llegaren a su mayoria de edad, y unamayoria de los mismos acordaren la terminacion de la administracion. Por

nietos debe entenderse so nolamente a los nietos varones sino tambien a los

nietos mujeres.

Referring to this provision of said will, we had occasion to say in G.R. No. L-6182:

. . . throughout clause 4 of the will, one can see that the testatrix placed

implicit confidence and trust in Araneta whom she designated as trustee,


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and for him to continue for a long time, not only until the minor children of

Angela S. Tuason including those yet unborn, attained the age of majority

but only when a majority of them decided to end the trust.

In short, the trustor had such faith and confidence appellee that she relied fully upon

his judgment and discretion. The exercise thereof by appellees should not be

disturbed, therefore, except upon clear proof of fraud or bad faith, or unless the

transaction in question is manifestly prejudicial to the interest of the minors

aforementioned petitioned. Such is not the situation obtaining in the present case.

WHEREFORE, the orders appealed from are hereby affirmed, with costs against the

appellant. It is so ordered.

ADOPTION

1.IN RE: PETITION FOR G.R. Nos. 168992-93ADOPTION OF MICHELLE P.LIM, Present:

MONINA P. LIM, PUNO, C.J., Chairperson,Petitioner. CARPIO,

x - - - - - - - - - - - - - - - - - - - - - - - x CORONA,LEONARDO-DE CASTRO, and

IN RE: PETITION FOR BERSAMIN, JJ .ADOPTION OF MICHAEL JUDEP. LIM,

Promulgated:MONINA P. LIM,

Petitioner. May 21, 2009x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner)

seeking to set aside the Decision[1]

dated 15 September 2004 of the Regional Trial

Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258

and 1259, which dismissed without prejudice the consolidated petitions for adoption

of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession.

On 23 June 1974, she married Primo Lim (Lim). They were childless. Minorchildren, whose parents were unknown, were entrusted to them by a certain Lucia

Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim

registered the children to make it appear that they were the childrens parents. The

children[2]

were named Michelle P. Lim (Michelle) and Michael Jude P. Lim

(Michael). Michelle was barely eleven days old when brought to the clinic of

petitioner. She was born on 15 March 1977.[3]

Michael was 11 days old when

Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They

sent the children to exclusive schools. They used t he surname Lim in all their

school records and documents. Unfortunately, on 28 November 1998, Lim died. On

27 December 2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the

amnesty[5]

given under Republic Act No. 8552[6]

(RA 8552) to those individuals who

simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate

petitions for the adoption of Michelle and Michael before the trial court docketed as

SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the

petitions for adoption, Michelle was 25 years old and already married, while Michael

was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by

their Affidavits of Consent.[7]

Michael also gave his consent to his adoption as shown

in his Affidavit of Consent.[8]

Petitioners husband Olario likewise executed an

Affidavit of Consent[9]for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and

Development (DSWD), Michelle was considered as an abandoned child and the

whereabouts of her natural parents were unknown.[10]

The DSWD issued a similar

Certification for Michael.[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the

petitions. The trial court ruled that since petitioner had remarried, petitioner should
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have filed the petition jointly with her new husband. The trial court ruled that joint

adoption by the husband and the wife is mandatory citing Section 7(c), Article III of

RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion

was denied in the Order dated 16 June 2005. In denying the motion, the trial court

ruled that petitioner did not fall under any of the exceptions under Section 7(c),

Article III of RA 8552. Petitioners argument that mere consent of her husband

would suffice was untenable because, under the law, there are additionalrequirements, such as residency and certification of his qualification, which the

husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint

adoption is merely for the joint exercise of parental authority, the trial court ruled

that joint adoption is not only for the purpose of exercising parental authority

because an emancipated child acquires certain rights from his parents and assumes

certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or

not petitioner, who has remarried, can singly adopt.

The Courts Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is

the duty of the court and the State to protect the paramount interest and welfare of

the child to be adopted. Petitioner argues that the legal maxim dura lex sed lex is

not applicable to adoption cases. She argues that joint parental authority is not

necessary in this case since, at the time the petitions were filed, Michelle was 25

years old and already married, while Michael was already 18 years of age. Parental

authority is not anymore necessary since they have been emancipated having attained

the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner

had already remarried. She filed the petitions by herself, without being joined by her

husband Olario. We have no other recourse but to affirm the trial courts decision

denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7,

Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full

civil capacity and legal rights, of good moral character, has not

been convicted of any crime involving moral turpitude,

emotionally and psychologically capable of caring for children, atleast sixteen (16) years older than the adoptee, and who is in a

position to support and care for his/her children in keeping with the

means of the family. The requirement of sixteen (16) year

difference between the age of the adopter and adoptee may be

waived when the adopter is the biological parent of the adoptee, or

is the spouse of the adoptees parent;

(b) Any alien possessing the same qualifications as above

stated for Filipino nationals:Provided, That his/her country has

diplomatic relations with the Republic of the Philippines, that

he/she has been living in the Philippines for at least three (3)

continuous years prior to the filing of the application for adoptionand maintains such residence until the adoption decree is entered,

that he/she has been certified by his/her diplomatic or consular

office or any appropriate government agency that he/she has the

legal capacity to adopt in his/her country, and that his/her

government allows the adoptee to enter his/her country as his/her

adopted son/daughter:Provided, further, That the requirements on

residency and certification of the aliens qualification to adopt in

his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a

relative within the fourth (4th

) degree of consanguinity or

affinity; or

(ii) one who seeks to adopt the legitimate

son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and

seeks to adopt jointly with his/her spouse a relative within

the fourth (4th) degree of consanguinity or affinity of the

Filipino spouses; or

(c) The guardian with respect to the ward after the

termination of the guardianship and clearance of his/her financial

accountabilities.


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Husband and wife shall jointly adopt, except in thefollowing cases:

(i) if one spouse seeks to adopt the legitimate

son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own

illegitimate son/daughter:Provided, however, That theother spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each

other.

In case husband and wife jointly adopt, or one spouse

adopts the illegitimate son/daughter of the other, joint parental

authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word shall in the above -quoted provision means that joint

adoption by the husband and the wife is mandatory. This is in consonance with theconcept of joint parental authority over the child which is the ideal situation. As the

child to be adopted is elevated to the level of a legitimate child, it is but natural to

require the spouses to adopt jointly. The rule also insures harmony between the

spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried

at the time the petitions for adoption were filed, must jointly adopt. Since the

petitions for adoption were filed only by petitioner herself, without joining her

husband, Olario, the trial court was correct in denying the petitions for adoption on

this ground.

Neither does petitioner fall under any of the three exceptions enumerated in

Section 7. First, the children to be adopted are not the legitimate children of

petitioner or of her husband Olario. Second, the children are not the illegitimatechildren of petitioner. And third, petitioner and Olario are not legally separated from

each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit

of Consent does not suffice. There are certain requirements that Olario must comply

being an American citizen. He must meet the qualifications set forth in Section 7 of

RA 8552 such as: (1) he must prove that his country has diplomatic relations with the

Republic of the Philippines; (2) he must have been living in the Philippines for at

least three continuous years prior to the filing of the application for adoption; (3) he

must maintain such residency until the adoption decree is entered; (4) he has legal

capacity to adopt in his own country; and (5) the adoptee is allowed to enter the

adopters country as the latters adopted child. None of these qualifications were

shown and proved during the trial.

These requirements on residency and certification of the aliens qualification to

adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are

not relatives within the fourth degree of consanguinity or affinity of petitioner or of

Olario. Neither are the adoptees the legitimate children of petitioner.

Eff ects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since

the children have been emancipated having reached the age of majority. This is

untenable.

Parental authority includes caring for and rearing the children for civic

consciousness and efficiency and the development of their moral, mental and

physical character and well-being.[13]

The father and the mother shall jointly

exercise parental authority over the persons of their common children .[14]

Even the

remarriage of the surviving parent shall not affect the parental authority over the

children, unless the court appoints another person to be the guardian of the person orproperty of the children.[15]

It is true that when the child reaches the age of emancipation that is, when

he attains the age of majority or 18 years of ag e[16]

emancipation terminates

parental authority over the person and property of the child, who shall then be

qualified and responsible for all acts of civil life.[17]

However, parental authority is

merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the

effects of adoption, thus:

ARTICLE V

EFFECTS OF ADOPTION

SEC. 16.Parental Authority. - Except in cases where the

biological parent is the spouse of the adopter, all legal ties between

the biological parent(s) and the adoptee shall be severed and the

same shall then be vested on the adopter(s).

SEC. 17.Legitimacy. - The adoptee shall be considered the

legitimate son/daughter of the adopter(s) for all intents and

purposes and as such is entitled to all the rights and obligations

provided by law to legitimate sons/daughters born to them without

discrimination of any kind. To this end, the adoptee is entitled to
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love, guidance, and support in keeping with the means of the

family.

SEC. 18. Succession. - In legal and intestate succession, the

adopter(s) and the adoptee shall have reciprocal rights of

succession without distinction from legitimate filiation. However,

if the adoptee and his/her biological parent(s) had left a will, the

law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between thebiological parent(s) and the adoptee, except when the biological parent is the spouse

of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give

adopter and adoptee reciprocal rights and obligations arising from the relationship of

parent and child, including but not limited to: (i) the right of the adopter to choose

the name the child is to be known; and (ii) the right of the adopter and adoptee to be

legal and compulsory heirs of each other.[18]

Therefore, even if emancipation

terminates parental authority, the adoptee is still considered a legitimate child of the

adopter with all the rights[19]

of a legitimate child such as: (1) to bear the surname of

the father and the mother; (2) to receive support from their parents; and (3) to be

entitled to the legitime and other successional rights. Conversely, the adoptive

parents shall, with respect to the adopted child, enjoy all the benefits to which

biological parents are entitled[20]

such as support[21]

and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary,

hold the interests and welfare of the child to be of paramount consideration. They are

designed to provide homes, parental care and education for unfortunate, needy or

orphaned children and give them the protection of society and family, as well as to

allow childless couples or persons to experience the joys of parenthood and give

them legally a child in the person of the adopted for the manifestation of their natural

parental instincts. Every reasonable intendment should be sustained to promote and

fulfill these noble and compassionate objectives of the law.[23]

But, as we have ruled

inRepublic v. Vergara:[24]

We are not unmindful of the main purpose of adoption

statutes, which is the promotion of the welfare of the children.Accordingly, the law should be construed liberally, in a manner

that will sustain rather than defeat said purpose. The law must also

be applied with compassion, understanding and less severity in

view of the fact that it is intended to provide homes, love, care and

education for less fortunate children. Regrettably, the Court is not

in a position to affirm the trial courts decision favoring adoption in

the case at bar, for the law is clear and it cannot be modifiedwithout violating the proscription against judiciallegislation. Until such time however, that the law on the matter isamended, we cannot sustain the respondent-spouses petition for

adoption. (Emphasis supplied)

Petitioner, being married at the time the petitions for adoption were filed, should

have jointly filed the petitions with her husband. We cannot make our own

legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that

joint adoption could no longer be possible because Olario has filed a case for

dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between

petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution

of marriage. Until and unless there is a judicial decree for the dissolution of the

marriage between petitioner and Olario, the marriage still subsists. That being the

case, joint adoption by the husband and the wife is required. We reiterate our ruling

above that since, at the time the petitions for adoption were filed, petitioner was

married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL.

PROC. Case Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.

2. [G.R. No. 143989. July 14, 2003]

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO(previously referred to as DR. MELVIN LAHOM),respondent.

D E C I S I O NVITUG, J.:

The bliss of marriage and family would be to most less than complete without

children. The realization could have likely prodded the spouses Dr. Diosdado

Lahom and Isabelita Lahom to take into their care Isabelitas nephew Jose Melvin

Sibulo and to bring him up as their own. At the tender age of two, Jose Melvin

enjoyed the warmth, love and support of the couple who treated the child like their

own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose

Melvin. Finally, in 1971, the couple decided to file a petition for adoption. On 05

May 1972, an order granting the petition was issued that made all the more intense

than before the feeling of affection of the spouses for Melvin. In keeping with the

court order, the Civil Registrar of Naga City changed the name Jose Melvin Sibulo

to Jose Melvin Lahom.
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A sad turn of events came many years later. Eventually, in December of 1999,

Mrs. Lahom commenced a petition to rescind the decree of adoption before the

Regional Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred -

7. That x x x despite the proddings and pleadings of said spouses, respondent

refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner

particularly her husband until the latter died, and even before his death he had made

known his desire to revoke respondents adoption, but was prevented by petitioners

supplication, however with his further request upon petitioner to give to charity

whatever properties or interest may pertain to respondent in the future.

x x x x x

x x x x

10. That respondent continued using his surname Sibulo to the utter disregard of

the feelings of herein petitioner, and his records with the Professional Regulation

Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978

until the present, and in all his dealings and activities in connection with his practice

of his profession, he is Jose Melvin M. Sibulo.

x x x x x

x x x x

13. That herein petitioner being a widow, and living alone in this city with only

her household helps to attend to her, has yearned for the care and show of concern

from a son, but respondent remained indifferent and would only come to Naga to see

her once a year.

14. That for the last three or four years, the medical check-up of petitioner in

Manila became more frequent in view of a leg ailment, and those were the times

when petitioner would need most the care and support from a love one, but

respondent all the more remained callous and utterly indifferent towards petitioner

which is not expected of a son.

15. That herein respondent has recently been jealous of petitioners nephews and

nieces whenever they would find time to visit her, respondent alleging that they were

only motivated by their desire for some material benefits from petitioner.

16. That in view of respondents insensible attitude resulting in a strained and

uncomfortable relationship between him and petitioner, the latter has suffered

wounded feelings, knowing that after all respondents only motive to his adoption is

his expectancy of his alleged rights over the properties of herein petitioner and her

late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for

partition against petitioner, thereby totally eroding her love and affection towards

respondent, rendering the decree of adoption, considering respondent to be the child

of petitioner, for all legal purposes, has been negated for which reason there is no

more basis for its existence, hence this petition for revocation.[1]

Prior to the institution of the case, specifically on 22 March 1998, Republic Act

(R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect. The

new statute deleted from the law the right of adopters to rescind a decree of

adoption.

Section 19 of Article VI of R.A. No. 8552 now reads:

SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with

the assistance of the Department if a minor or if over eighteen (18) years of age but

is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the

following grounds committed by the adopter(s): (a) repeated physical and verbal

maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on

the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure

to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to

rescission by the adopter(s). However, the adopter(s) may disinherit theadoptee for causes provided in Article 919 of the Civil Code.(emphasis

supplied)

Jose Melvin moved for the dismissal of the petition, contending principally (a)

that the trial court had no jurisdiction over the case and (b) that the petitioner had no

cause of action in view of the aforequoted provisions of R.A. No. 8552. Petitioner

asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not

retroactively apply, i.e., to cases where the ground for rescission of the adoption

vested under the regime of then Article 348[2]

of the Civil Code and Article 192[3]

of

the Family Code.

In an order, dated 28 April 2000, the trial court held thusly:

On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A.

No. 8369 confers jurisdiction to this Court, having been designated Family Court in

A.M. No. 99-11-07 SC.

On the matter of no cause of action, the test on the sufficiency of the facts alleged in

the complaint, is whether or not, admitting the facts alleged, the Court could render a

valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs.

Belarmino, et al., 95 Phil. 365).

Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter

to rescind an adoption earlier granted under the Family Code. Conformably, on the

face of the petition, indeed there is lack of cause of action.
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Petitioner however, insists that her right to rescind long acquired under the

provisions of the Family Code should be respected. Assuming for the sake of

argument, that petitioner is entitled to rescind the adoption of respondent granted on

May 5, 1972, said right should have been exercised within the period allowed by the

Rules. From the averments in the petition, it appears clear that the legal grounds for

the petition have been discovered and known to petitioner for more than five (5)

years, prior to the filing of the instant petition on December 1, 1999, hence, the

action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules of Court)

WHEREFORE, in view of the foregoing consideration, the petition is ordered

dismissed.[4]

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of

Court, petitioner raises the following questions; viz:

1. May the subject adoption, decreed on 05 May 1972, still be revoked or

rescinded by an adopter after the effectivity of R.A. No. 8552?

2. In the affirmative, has the adopters action prescribed?

A brief background on the law and its origins could provide some insights on

the subject. In ancient times, the Romans undertook adoption to assure male heirs inthe family.[5]

The continuity of the adopters family was the primary purpose of

adoption and all matters relating to it basically focused on the rights of the

adopter. There was hardly any mention about the rights of the adopted.[6]

Countries,

like Greece, France, Spain and England, in an effort to preserve inheritance within

the family, neither allowed nor recognized adoption.[7]

It was only much later whenadoption was given an impetus in law and still later when the welfare of the child

became a paramount concern.[8]

Spain itself which previously disfavored adoption

ultimately relented and accepted the Roman law concept of adoption which,

subsequently, was to find its way to the archipelago. The Americans came and

introduced their own ideas on adoption which, unlike most countries in Europe,

made the interests of the child an overriding consideration.[9]

In the early part of the

century just passed, the rights of children invited universal attention; the GenevaDeclaration of Rights of the Child of 1924 and the Universal Declaration of Human

Rights of 1948,[10]

followed by the United Nations Declarations of the Rights of the

Child,[11]

were written instruments that would also protect and safeguard the rights of

adopted children. The Civil Code of the Philippines[12]

of 1950 on adoption, later

modified by the Child and Youth Welfare Code[13]

and then by the Family Code ofthe Philippines,

[14]gave immediate statutory acknowledgment to the rights of the

adopted. In 1989, the United Nations initiated the Convention of the Rights of the

Child. The Philippines, a State Party to the Convention, accepted the principle that

adoption was impressed with social and moral responsibility, and that its underlying

intent was geared to favor the adopted child. R.A. No. 8552 secured these rights and

privileges for the adopted. Most importantly, it affirmed the legitimate status of the

adopted child, not only in his new family but also in the society as well. The new

law withdrew the right of an adopter to rescind the adoption decree and gave to the

adopted child the sole right to sever the legal ties created by adoption.

Petitioner, however, would insist that R.A. No. 8552 should not adversely

affect her right to annul the adoption decree, nor deprive the trial court of its

jurisdiction to hear the case, both being vested under the Civil Code and the Family

Code, the laws then in force.

The concept of vested right is a consequence of the constitutional guaranty of

due process

[15]

that expresses a present fixed interestwhich in right reason andnatural justice is protected against arbitrary state action ;[16]it includes not only legalor equitable title to the enforcement of a demand but also exemptions from new

obligations created after the right has become vested.[17]

Rights are considered

vested when the right to enjoyment is a present interest,[18]

absolute, unconditional,

and perfect[19]

or fixed and irrefutable.

InRepublic vs. Court of Appeals,[20]

a petition to adopt Jason Condat was filed

by Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code

(Presidential Decree No. 603) allowed an adoption to be sought by either spouseorboth of them. After the trial court had rendered its decision and while the casewas still pending on appeal, the Family Code of the Philippines (Executive Order

No. 209),mandating joint adoption by the husband and wife, tookeffect. Petitioner Republic argued that the case should be dismissed for having beenfiled by Mrs. Bobiles alone and without being joined by the husband. The Courtconcluded that thejurisdiction of the court is determined by the statute inforceat the time of the commencement of the action. The petition to adopt Jason,having been filed with the court at the time when P.D. No. 603 was still ineffect, the right of Mrs. Bobiles to file the petition, without being joined by herhusband, according to the Court had become vested. InRepublic vs.

Miller,[21]

spouses Claude and Jumrus Miller, both aliens, sought to adopt Michael

Madayag. On 29 July 1988, the couple filed a petition to formalize Michaels

adoption having theretofore been taken into their care. At the time the action was

commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and

while on appeal before the Court of Appeals, the Family Code was enacted into law

on 08 August 1988 disqualifying aliens from adopting Filipino children. TheRepublic then prayed for the withdrawal of the adoption decree. In discarding the

argument posed by the Republic, the Supreme Court ruled that the controversyshould be resolved in the light of the law governing at the time the petiti on wasfiled.

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed

an action to revoke the decree of adoption granted in 1975. By then, the new

law,[22]

had already abrogated and repealed the right of an adopter under the Civil

Code and the Family Code to rescind a decree of adoption. Consistently with its

earlier pronouncements, the Court should now hold that the action for rescission of

the adoption decree, having been initiated by petitioner after R.A. No. 8552 had

come into force, no longer could be pursued.
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Interestingly, even before the passage of the statute, an action to set aside the

adoption is subject to the fiveyear bar rule under Rule 100[23]

of the Rules of Court

and that the adopter would lose the right to revoke the adoption decree after the lapse

of that period. The exercise of the right within a prescriptive period is a condition

that could not fulfill the requirements of a vested right entitled to protection. It must

also be acknowledged that a person has no vested right in statutory

privileges.[24]

While adoption has often been referred to in the context of a right,

the privilege to adopt is itself not naturally innate or fundamental but rather a right

merely created by statute.[25]

It is a privilege that is governed by the statesdetermination on what it may deem to be for the best interest and welfare of the

child.[26]

Matters relating to adoption, including the withdrawal of the right of an

adopter to nullify the adoption decree, are subject to regulation by the

State.[27]

Concomitantly, a right of actiongiven by statute may be taken away atanytime before it has been exercised.

[28]

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a

consequential right to rescind the adoption decree even in cases where the adoption

might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty

of the Court to apply the law. Dura lex sed lexwould be the hackneyed truism that

those caught in the law have to live with. It is still noteworthy, however, that an

adopter, while barred from severing the legal ties of adoption, can always for valid

reasons cause the forfeiture of certain benefits otherwise accruing to an undeservingchild. For instance, upon the grounds recognized by law, an adopter may deny to an

adopted child his legitime and, by a will and testament, may freely exclude him from

having a share in the disposable portion of his estate.

WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. Nocosts.

SO ORDERED.

3. G.R. No. 118870. March 29, 1996]

NERISSA Z. PEREZ , petit ioner, vs.THE COURT OF APPEALS

(Ninth Division) and RAY C. PEREZ,respondents.

D E C I S I O N

ROMERO, J.:

Parties herein would have this Court duplicate the feat of King Solomon who

was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of

resolving conflicts, the most celebrated case being that when his authority was

invoked to determine the identity of the real mother as between two women claiming

the same infant. Since there could only be one mother, the daunting task that

confronted the king/judge was to choose the true one.

In the instant case, we are faced with the challenge of deciding, as between

father and mother, who should have rightful custody of a child who bears in his

person both their genes.

While there is a provision of law squarely in point, the two courts whose

authority have been invoked to render a decision have arrived at diametrically

opposite conclusions.

It has fallen upon us now to likewise act as judge between the trial court, on the

one hand, and the appellate, on the other.

On the issue of custody over the minor Ray Perez II, respondent Court ofAppeals ruled in favor of the boys father Ray C. Perez, reversing the trial courts

decision to grant custody to Nerissa Z. Perez, the childs mother.

Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while

Nerissa, his wife who is petitioner herein, is a registered nurse. They were married

in Cebu on December 6, 1986. After six miscarriages, two operations and a high-

risk pregnancy, petitioner finally gave birth to Ray Perez II in New York on July 20,

1992.

Petitioner who began working in the United States in October 1988, used part

of her earnings to build a modest house in Mandaue City,Cebu. She also sought

medical attention for her successive miscarriages in New York. She became a

resident alien in February 1992.

Private respondent stayed with her in the U.S. twice and took care of her when

she became pregnant. Unlike his wife, however, he had only a tourist visa and was

not employed.

On January 17, 1993, the couple and their baby arrived in Cebu. After a few

weeks, only Nerissa returned to the U.S. She alleged that they came home only for a

five-week vacation and that they all had round-trip tickets. However, her husband

stayed behind to take care of his sick mother and promised to follow her with the

baby. According to Ray, they had agreed to reside permanently in

the Philippines but once Nerissa was in New York, she changed her mind andcontinued working. She was supposed to come back immediately after winding up

her affairs there.

When Nerissa came home a few days before Ray IIs first birt hday, the couple

was no longer on good terms. That their love for each other was fading became

apparent from their serious quarrels. Petitioner did not want to live near her in-laws

and rely solely on her husbands meager income of P5,000.00.1She longed to be

with her only child but he was being kept away from her by her husband. Thus, she

did not want to leave RJ (Ray Junior) with her husband and in-laws. She wished for

her son to grow up with his mother.

On the other hand, Ray wanted to stay here, where he could raise his son even

as he practiced his profession. He maintained that it would not be difficult to live
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here since they have their own home and a car. They could live comfortably on his P

15,000.00 monthly income2as they were not burdened with having to pay any debts.

Petitioner was forced to move to her parents home on Guizo Street in

Mandaue. Despite mediation by the priest who solemnized their marriage, the

couple failed to reconcile.

On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus3asking

respondent Ray C. Perez to surrender the custody of their son, Ray Z. Perez II, to

her.On August 27, 1993, the court a quo issued an Order awarding custody of the

one-year old child to his mother, Nerissa Perez, citing the second paragraph of

Article 213 of the Family Code which provides that no child under seven years of

age shall be separated from the mother, unless the court finds compelling reasons to

order otherwise. The dispositive portion of the Order reads:

WHEREFORE, foregoing premises considered, Order is hereby issued ordering the

respondent to turn over the custody of their child Ray Cortes Perez II, his passport

and roundtrip ticket to herein petitioner with a warning that if he will escape together

with the child for the purpose of hiding the minor child instead of complying with

this Order, that warrant for his arrest will be issued.

SO ORDERED.4

Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994,

reversed the trial courts order and awarded custody of the boy to his father.5

Petitioners motion for reconsideration having been denied,6she filed the

instant petition for review where the sole issue is the custody of Ray Perez II, now

three years old.

Respondent court differed in opinion from the trial court and ruled that there

were enough reasons to deny Nerissa Perez custody over Ray II even if the child is

under seven years old. It held that granting custody to the boys father would be for

the childs best interest and welfare.7

Before us is the unedifying situation of a husband and wife in marital discord,

struggling for custody of their only child. It is sad that petitioner and private

respondent have not found it in their hearts to understand each other and live

together once again as a family. Separated in fact, they now seek the Courts

assistance in the matter of custody or parental authority over the child.

The wisdom and necessity for the exercise of joint parental authority need notbe belabored. The father and the mother complement each other in giving nurture

and providing that holistic care which takes into account the physical, emotional,

psychological, mental, social and spiritual needs of the child. By precept and

example, they mold his character during his crucial formative years.

However, the Courts intervention is sought in order that a decision may be

made as to which parent shall be given custody over the young boy. The Courts

duty is to determine whether Ray Perez II will be better off with petitioner or with

private respondent. We are not called upon to declare which party committed the

greater fault in their domestic quarrel.

When the parents of the child are separated, Article 213 of the Family Code is

the applicable law. It provides:

ART. 213. In case ofseparation of the parents,parental authority shall be exercisedby the parent designated by the Court. The Court shall take into account all relevant

considerations, especially the choice of the child over seven years of age, unless the

parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the

court finds compelling reasons to order otherwise. (Italics supplied)

Since the Code does not qualify the word separation to mean legal

separation decreed by a court, couples who are separated in fact, such as petitioner

and private respondent, are covered within its terms.8

The Revised Rules of Court also contains a similar provision. Rule 99, Section6 (Adoption and Custody of Minors) provides:

SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When

husband and wife are divorced or living separately and apart from each other, and the

questions as to the care, custody, and control of a child or children of their marriage

is brought before a Court of First Instance by petition or as an incident to any other

proceeding, the court, upon hearing the testimony as may be pertinent, shall award

the care, custody, and control of each such child as will be for its best interest,

permitting the child to choose which parent it prefers to live with if it be over ten

years of age, unless the parent chosen be unfit to take charge of the child by reason

of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child

under seven years of age shall be separated from its mother, unless the court findsthere are compelling reasons therefor.(Italics supplied)

The provisions of law quoted above clearly mandate that a child under seven

years of age shall not be separated from his mother unless the court finds compelling

reasons to order otherwise. The use of the word shall in Article 213 of the Family

Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory

character. In the case ofLacson v. San Jose-Lacson,9the Court declared:

The use of the wordshallin Article 36310

of the Civil Code, coupled with the

observations made by the Code Commission in respect to the said legal provision,

underscores its mandatory character. It prohibits in no uncertain terms the separation
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of a mother and her child below seven years, unless such separation is grounded

upon compelling reasons as determined by a court.11

The rationale for awarding the custody of children younger than seven years of

age to their mother was explained by the Code Commission:

The general rule is recommended in order to avoid many a tragedy where a mother

has seen her baby torn away from her. No man can sound the deep sorrows of a

mother who is deprived of her child of tender age. The exception allowed by the rule

has to be for compelling reasons for the good of the child; those cases must indeedbe rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of

adultery, the penalty of imprisonment and the divorce decree (relative divorce) will

ordinarily be sufficient punishment for her. Moreover, moral dereliction will not

have any effect upon the baby who is as yet unable to understand her situation.

(Report of the Code Commission, p. 12)12

The Family Code, in reverting to the provision of the Civil Code that a child

below seven years old should not be separated from the mother (Article 363), has

expressly repealed the earlier Article 17, paragraph three of the Child and Youth

Welfare Code (Presidential Decree No. 603) which reduced the childs age to five

years.13

The general rule that a child under seven years of age shall not be separated

from his mother finds its raison detrein the basic need of a child for his mothers

loving care.14

Only the most compelling of reasons shall justify the courts awarding

the custody of such a child to someone other than his mother, such as her unfitness to

exercise sole parental authority. In the past the following grounds have been

considered ample justification to deprive a mother of custody and parental authority:

neglect, abandonment,15

unemployment and immorality,16

habitual

drunkenness,17

drug addiction, maltreatment of the child, insanity and being sick

with a communicable disease.18

It has long been settled that in custody cases,19

the foremost consideration is

always the Welfare and best interest of the child. In fact, no less than an international

instrument, the Convention on the Rights of the Child provides: In all actionsconcerning 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.20

Courts invariably look into all relevant factors presented by the contending

parents, such as their material resources, social and moral situations.21

In the case at bench, financial capacity is not a determinative factor inasmuch

as both parties have demonstrated that they have ample means.

Respondent court stated that petitioner has no permanent place of work in

the U.S.A. and has taken this point against her. The records, however, show that she

is employed in a New York hospital

22

and was, at the time the petition was filed, still

abroad.23

She testified that she intends to apply for a job elsewhere, presumably to

improve her work environment and augment her income, as well as for

convenience.24

The Court takes judicial notice of the fact that a registered nurse, such

as petitioner, is still very much in demand in the United States. Unlike private

respondent, a doctor who by his own admission could not find employment there,

petitioner immediately got a job in New York. Considering her skill and experience,

petitioner should find no difficulty in obtaining work elsewhere, should she desire to

do so.

The decision under review casts doubt on petitioners capability to take care ofthe child, particularly since she works on twelve-hour shifts thrice weekly, at times,

even at night. There being no one to help her look after the child, it is alleged that

she cannot properly attend to him. This conclusion is as unwarranted as it is

unreasonable. First, her present work schedule is not so unmanageable as to deprive

her of quality time for Ray II. Quite a number of working mothers who are away

from home for longer periods of time are still able to raise a family well, applying

time management principles judiciously. Second, many a mother, finding herself in

such a position, has invited her own mother or relative to join her abroad, providing

the latter with plane tickets and liberal allowances, to look after the child until he is

able to take care of himself. Others go on leave from work until such time as the

child can be entrusted to day-care centers. Delegating child care temporarily to

qualified persons who run day-care centers does not detract from being a goodmother, as long as the latter exercises supervision, for even in our culture, children

are often brought up by housemaids or yayas under the eagle eyes of the

mother. Third, private respondents work schedule was not presented in evidence at

the trial. Although he is a general practitioner, the records merely show that he

maintains a clinic, works for several companies on retainer basis and teaches part-

time.25

Hence, respondent courts conclusion that his work schedule is flexible (and

h)e can always find time for his son26

is not well-founded. Fourth, the fact that

private respondent lives near his parents and sister is not crucial in this case. Fifth,

petitioners work schedule cited in the respondent courts decision is not necessarily

permanent. Hospitals work in shifts and, given a mothers instinctive desire to lavish

upon her child the utmost care, petitioner may be expected to arrange her schedule in

such a way as to allocate time for him. Finally, it does not follow that petitionervalues her career more than her family simply because she wants to work in

the United States. There are any number of reasons for a persons seeking a job

outside the country, e.g. to augment her income for the familys benefit and welfare,

and for psychological fulfillment, to name a few. In the instant case, it has been

shown that petitioner earned enough from her job to be able to construct a house for

the family in Mandaue City. The record describes sketchily the relations between

Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show

that petitioner did not exert earnest efforts and make sacrifices to save her marriage.

It is not difficult to imagine how heart-rending it is for a mother whose attempts

at having a baby were frustrated several times over a period of six years to finally

bear one, only for the infant to be snatched from her before he has even reached his
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