Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region
Branch 22, Makati City
EDWARD X. CULLEN,
Petitioner,
-versus-

Civil Case No. 1234454

For: Declaration of Nullity of Marriage
under Article 36 of the Family Code

ISABELLA W. SALVADOR- CULLEN,

Respondent.
x ========================= x
MEMORANDUM OF ARGUMENTS FOR THE PLAINTIFF
EDWARD

X.

CULLEN,

through

the

undersigned

counsel,

most

respectfully submits and presents this Memorandum in the above-titled case and
states that:
THE PARTIES
1. The Plaintiff, EDWARD X. CULLEN.
2. The Defendant, ISABELLA W. CULLEN
FACTUAL BACKGROUND
During the course of the trial, the Plaintiff, through his witnesses and the
proceedings, was able to establish the following facts:
1. The Plaintiff, EDWARD X. CULLEN (Plaintiff), is a Filipino, 35 years old,
married, and a resident of 1234 Tiktik Street, Barangay Seattle, Makati
City, where notices, papers, and other legal processes may be served.

2. The Defendant, ISABELLA W. CULLEN (Defendant), is a Filipino,

married, and a resident of 1111 Forks Street, Brgy. Washington, Makati
City, where notices, papers, and other legal processes may be served.
3. The parties met when they were in college and became a couple
eventually.
4. They continued to date after their college graduation.
5. The Plaintiff started working at VampiraPharmaTelcom where he is still
presently employed.
6. The Defendant pursued her studies in Medicine.
7. The parties were married on August 19, 2006 at the Our Lady of Beautiful
Love Parish in Paranaque City.
8. The parties are the parents of Renesmee S. Cullen, born on March 12,
2012.
9. During the marriage, the parties resided in the family home of the Plaintiff.
10. Before and during the marriage, the Plaintiff continued to work at
VampiraPharmaTelcom which was objected to by the Defendant as the
latter kept on convincing the former to explore other career opportunities.

11. The relationship of the parties was not ideal from the start and only got
worse after the wedding.

12. The parties often fought which sometimes led to the Defendant leaving
their conjugal home. Their present separation in fact was caused by the
abandonment of the Defendant who left their conjugal home in January
2015 and has not returned since.

13. The parties have been separated since January 2015 when the Defendant
failed to come home after a series of episodes of leaving their conjugal
home then coming back.

14. The Plaintiff was examined by Clinical Psychiatrist, Dr. NormindaDawag,

who was stipulated by both parties as an expert witness.
15. The Plaintiff consulted and was examined by said Dr. NormindaDawag
from April to mid-June, 2015 at intervals of two-three times a week with
each session lasting anywhere between one (1) to four (4)hours.
16. In order to reach her diagnosis as to the Plaintiffs and Respondents
psychological state, Dr. NormindaDawag conducted interviews on the
Plaintiff and his mother as well as a series of tests on the Plaintiff such as
the House-Tree-Person test, Draw-A-Person test, Basic Personality
Inventory, Bender Motor Visual Gestalt test, General Medical Ability test,
Luscher Full-Color test, Self-Analysis, and Zung Depression Scale.
17. Dr. NormindaDawag diagnosed the Plaintiff as having Histrionic
Personality Disorder and the Respondent as having Narcissistic
Personality Disorder.
18. Because of the above precedents and the incapacity to perform the
essential marital obligations, the Plaintiff filed this present action for
Declaration of Nullity of Marriage based on Psychological Incapacity of
both parties as provided by Article 26 of the Family Code.
19. Because of the Defendants incapacity to perform her obligations as a
good mother to their common child, Renesmee X. Cullen, the Plaintiff
should be awarded custody of said minor child.
ISSUES OF THE CASE
1. Whether or not the Parties are psychologically incapacitated such that
there is failure to perform essential marital obligations
2. Whether or not custody of the minor child Renesmee Cullen should be
given to the Plaintiff in light of the Defendants incapability to provide for,
look after, and care for the said minor child
ARGUMENTS AND DISCUSSION

I.

The Parties are psychologically incapacitated

a. The psychological incapacities of both

parties are characterized by Gravity,
Juridical Antecedence, and Incurability.
Article 36 of the Family Code provides:
A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital
obligations of the marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization1

In the case at bar, Plaintiff most respectfully submits that a Declaration of

Nullity of Marriage is proper due to the existence of Psychological Incapacity on
both parties.
In a long line of cases, the Court has consistently held that psychological
incapacity has not been given a specific definition to "allow some resiliency in its
application." Citing the cases of Santos vs. Ca (1995) and SalitavsMagtolis
(19994), the Court repeatedin Kalaw vs. Fernandez (January 14, 2015) why the
Revision Committee did not provide an exact definition of psychological
incapacity, in that:
Although the Family Code has not defined the term psychological
incapacity, the Court has usually looked up its meaning by reviewing the
deliberations of the sessions of the Family Code Revision Committee
that had drafted the Family Code in order to gain an insight on the
provision. It appeared that the members of the Family Code Revision
Committee were not unanimous on the meaning, and in the end they
decided to adopt the provision "with less specificity than expected" in
order to have the law "allow some resiliency in its application." Illustrative
of the "less specificity than expected" has been the omission by the
Family Code Revision Committee to give any examples of psychological
incapacity that would have limited the applicability of the provision
conformably with the principle of ejusdem generis, because the
Committee desired that the courts should interpret the provision on a
case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and the decisions of church
tribunals that had persuasive effect by virtue of the provision itself having
been taken from the Canon Law.2

1 Article 37, the Family Code

2Kalaw vs. Fernandez, G.R.No. 166357

In the same Kalawcase, the Court described Psychological Incapacity as a

serious psychological illness afflicting a party even prior to the celebration of
marriage that is permanent as to deprive the party of the awareness of the duties
and responsibilities of the matrimonial bond he or she was about to assume.
In Santos vs. CA, speaking through Justice Vitug, the Court stated that
Psychological Incapacity refers to no less than a mental incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the marriage. The Court
further gave as examples the mutual obligations of cohabitation, mutual love and
respect, fidelity, and to render help and support.In this landmark case, the Court
provided guidelines which would characterize a case for psychological incapacity,
in that:
The incapacity must be grave or serious such that the party would be
incapable of carrying out the ordinary duties required in marriage; it must be
rooted in the history of the party antedating the marriage, although the overt
manifestations may emerge only after the marriage; and it must be incurable
or, even if it were otherwise, the cure would be beyond the means of the
party involved.

Two years after providing the guidelines for psychological incapacity in

Santos vs. CA, the Court expanded the guidelines for the interpretation and
application of article 36 of the Family Code in the leading case of Republic vs.
CA, Molina, to wit:
(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff;
(2) The root cause of the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision;
(3) The incapacity must be proven to be existing at "the time of the
celebration" of the marriage;
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable;
(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage;
(6) The essential marital obligations must be those embraced by Articles 68
up to 71 of the Family Code as regards the husband and wife as well as
Articles 220, 221 and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the decision;
(7) Interpretations given by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts;
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state.

In Te vs. Te (2009), the Court, in reaching its decision, veered from the
Molina case ruling. It ruled that the psychological incapacity of the parties should
be resolved on a case-to-case basis according to its own facts, guided by
experience, the findings of experts and researchers in psychological disciplines
and not just consider the straight-jacket ruling of the Molina case as the standard.
Speaking through Justice Nachura, the Court explained that:
The unintended consequences of Molina, however, has taken its toll on
people who have to live with deviant behavior, moral insanity and sociopathic
personality anomaly, which, like termites, consume little by little the very
foundation of their families, our basic social institutions. Far from what was
intended by the Court, Molina has become a strait-jacket, forcing all sizes to
fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently
applying Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously debase and pervert
the sanctity of marriage.

In Reyes vs. Reyes (2010), the Court, speaking through Justice Nachura,
reminded the Court of the separate statement of Justice Padilla in Republic vs.
Molina. That in deciding a case for the nullity of marriage due to psychological
incapacity the Court should be reminded that:
x xx Each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. In the field of
psychological incapacity as a ground for annulment of marriage, it is trite to
say that no case is on "all fours" with another case. The trial judge must take
pains in examining the factual milieu and the appellate court must, as much
as possible, avoid substituting its own judgment for that of the trial court."

Recognizing the various jurisprudence on the matter, the Court, in the

recent case of Kalaw vs. Fernandez (January 14, 2015), harmonized the various
jurisprudence on Psychological incapacity as a ground for the nullity of marriage
under Article 36 of the Family Code. Citing the leading cases of Santos vs. CA,
Republic vs. CA, Molina, and Te vs. Te, the Court declared that the guidelines
established in the cases of Santos and Molina have not been abandoned.
However, the Court emphasized that, as in the case of Te, the provision on
psychological incapacity must be interpreted on a case to case basis. The Court
clarified its rulings in that:
Lest it be misunderstood, we are not suggesting the abandonment of
Molina in this case. We simply declare that, as aptly stated by Justice
Dante O. Tinga in Antonio v. Reyes, there is need to emphasize other
perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36. At the risk of being redundant, we
reiterate once more the principle that each case must be judged, not on
the basis of a priori assumptions, predilections or generalizations but
according to its own facts. And, to repeat for emphasis, courts should

interpret the provision on a case-to-case basis; guided by experience,

the findings of experts and researchers in psychological disciplines, and
by decisions of church tribunals.3

In the case at bar, Petitioner alleges that both the Petitioner himself and
the Respondent suffers from psychological incapacity which prevents them from
complying with their essential marital obligations.
The Petitioner presented documentary and testimonial evidence to
support

his

allegation.

Noteworthy, was

the

expert

testimony

of

Dr.

NormindaDawag, who diagnosed both of the parties to be psychologically

incapacitated. To arrive at this conclusion, Dr. Dawag conducted a battery of
tests on the Petitioner. (insert the test here). As for the Respondent, Dr. Dawag
her findings were based on the searching interviews conducted on the the
Petitioner and on (mother of petitioner?).
The Petitioner was diagnosed by Dr. NormindaDawag, an expert
psychologist, to be suffering from Histrionic Personality Disorder (HPD).
According to the Diagnostic and Statistical Manual of the American Psychiatric
Association 5th Edition (DSM-5), Persons with Histrionic Personality Disorder
are excitable, emotional, and behave in a colorful, dramatic, extroverted fashion.
It is further provided that persons with such disorders are often unable to
maintain deep, long-lasting attachments.
DSM-5 further provides the following as the Diagnostic Criteria for HPD:
A pervasive pattern of excessive emotionality and attention seeking,
beginning in early adulthood and present in a variety of contexts, as indicated by
five (or more) of the following:
1. Is uncomfortable in situations in which he or she is not the center of
attention.
2. Interaction with others is often characterized by inappropriate sexually
seductive or provocative behavior.
3. Displays rapidly shifting and shallow expression of emotions.
4. Consistently uses physical appearance to draw attention to self.
5. Has a style of speech that is excessively impressionistic and lacking in
detail.
3Kalaw vs. Fernandez, G.R.No.166357, citing Te vs. TeG.R.No.161793

6. Shows self-dramatization, theatricality, and exaggerated expression of

emotion.
7. Is suggestible (i.e. easily influenced by others or circumstances)
8. Considers relationships to be more intimate than they actually are.
Based on her findings, Dr. Dawag further testified that the psychological in
capacity of the Petitioner was of such gravity and incurability that even with the
prescribed medications, the incapacity could, at best, be only mitigated but not
cured. Further, since the incapacity was diagnosed to be deeply rooted in the
family history of the Petitioner, such was present even before the celebration of
the marriage of the Petitioner with the Respondent. The incapacity only
manifested after the marriage and during their conjugal life.
The expert testimony of Dr. Dawag further buttressed the testimony of the
Petitioner himself that his psychological incapacity was characterized by such
gravity, juridical antecedence and incurability. These testimonial evidence were
clearly and convincingly laid out by the Petitioner in sufficient compliance with the
guidelines set forth in Santos vs. CA.

In so far as compliance with the guidelines pronounced by the Court in

Republic vs. CA, Molina, the Petitioner has proven sufficient compliance with the
said guiding principle. To wit:
(1) The burden of proof to show the nullity of the marriage belongs to
the plaintiff.
Petitioner, through the testimonies of Dr. Dawag and of himself, that
both he and the Respondent was diagnosed to be psychologically
incapacitated. The documentary evidence submitted by the
Petitioner, Clinical findings of Dr. Dawag(Exhibit ?)clearly declares
that based of tests conducted and based on interviews, both parties
were incapacitated. As for the Petitioner, he was diagnosed to be
suffering from Histrionic Personality Disorder (HPD). As for the
Respondent (insert findings here).
(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision.

Based of the uncontroverted expert testimony of Dr. Dawag, the root

cause of the psychological in capacity of the Petitioner can be traced
from his family history. The diagnosis of the medical expert was that
the petitioner is suffering from Histrionic Personality Disorder (HPD),
and that the Respondent wasdiagnosed to have (insert here).Clinical
tests (exhibit ?) on the Petitioner was conclusive as to the finding of
such incapacity.
(3) The incapacity must be proven to be existing at the time of the
celebration of the marriage.
According to the uncontroverted testimony of Dr. Dawag, the incapacity
if the Petitioner is deeply rooted from his family history.(insert findings
here)
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable.
Based on the clinical examination of Dr. Dawag, is indeed suffering
with histrionic personality disorder and such disorder causes him to be
incapacitated in the performance of his marital obligations.

On

crossexamination, Dr. Dawag clarified that while Petitioner was

prescribed medications for his disorder, such medicines would, at best,
be effective only as to mitigating the adverse effects of the disorder.
(5) Such illness must be grave enough to bring about the disability of
the party to assume the essential obligations of marriage.
Dr. Dawag, characterized the histrionic personality disorder of
Petitioner to be grave and effectively prevented Petitioner from
performing his marital obligations.(insert findings here)
(6) The essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards the husband.
Mr. Cullen, through his personality disorder has made him incapable of
performing his marital obligations mentioned in the Articles 68 to 71 of
the Family Code, namely:

 That Mr. Cullen has not been observing love and affection for his
wife evidenced by the fact that Mr. Cullen immediately goes to bed
whenever he comes home from work instead of having a conversation
with his wife.
That the Cullens have no fixed arrangements in making expenses
to support the family needs.
That Mr. Cullen has no sense of punctuality in performing acts
constituting the management of the household.
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state.
As the records of the case would reveal, throughout the course of the
petition, State interest was ably represented by the participation of no
less than the assistant solicitor general himself.
In Azcueta vs. Republic, the Court granted the petition for the declaration of the
nullity of marriage premised on the psychological incapacity of the husband, after
being convinced that the Petitioner has sufficiently complied with the guidelines
set forth in the landmark case of Molina 4. In the case at bar, Petitionerhas
sufficiently complied with the guidelines of Molina through the substantiation of
testimonial and documentary evidence.

Lack of personal examination does not

invalidate the findings of the Expert Witness
Psychological incapacity as a ground for the nullity of marriage under
Article 36 of the Family Code refers to a serious psychological illness afflicting a
party even prior to the celebration of the marriage that is permanent as to deprive
the party of the awareness of the duties and responsibilities of the matrimonial
bond he or she was about to assume.
The lack of personal examination or assessment of the respondent by a
psychologist or psychiatrist is not necessarily fatal in a petition for the declaration
of nullity of marriage. Psychological incapacity, as a ground for declaring the
nullity of a marriage, may be established by the totality of evidence presented.
4Azcueta vs. Republic, G.R.No. 180668, 26 May 2009

There is no requirement, however, that the respondent should be examined by a

physician or a psychologist as a conditio sine qua non for such declaration.
In the recent case of Kalaw v Fernandez, wherein the Supreme Court
dissected the earlier rulings of Santos v. CA and Republic v. Court of Appeals,
particularly in defining psychological incapacity and providing guidelines for the
interpretation and application of Article 36 of the Family Code, in this case, the
Supreme Court speaking through Justice Bersamin, found that the foregoing
guidelines have turned out to be rigid, such that their application to every
instance practically condemned the petitions for declaration of nullity to the fate
of certain rejection. But Article 36 of the Family Code must not be so strictly and
top enacted version of less specificity obviously to enable some resiliency in its
application. Instead, every court should approach the issue of nullity not on the
basis of a priori assumptions, predilections or generalizations, but according to its
own facts in recognition of the verity that no case would be on all fours with the
next one in the field of psychological incapacity as a ground for the nullity of
marriage.
In the task of ascertaining the presence of psychological incapacity as a
ground for the nullity of marriage, the courts, which are concededly not endowed
with expertise in the field of psychology, must of necessity rely on the opinions of
experts in order to inform themselves on the matter, and thus enable themselves
to arrive at an intelligent and judicious judgment. Indeed, the conditions for the
malady of being grave, antecedent and incurable demand the in-depth diagnosis
by experts.
In the present case at bar, Dr. NormindaDawag, whom both Plaintiff and
Defendant stipulated as an expert witness, sufficiently presented evidence
proving both parties psychological incapacity. During her testimonial examination
in Court, Dr. Dawag explained that _______________________________ (refer
to TSN?). This can further be proven by the extensive examination made by Dr.
Dawag to Plaintiff who was later found to be suffering with Histrionic Personality
Disorder as reflected in the Psychiatric Evaluation conducted by Dr. Dawag to the
Plaintiff. More particularly her examination and diagnosis to Plaintiff and
Respondent would show gravity, juridical antecedence, and incurability to
perform their essential marital obligations of marriage.

It must be remembered that while in the case at bar, only the Plaintiff has
been examined and thus appears to be unilateral in effect, it is already settled
that the courts must accord weight to expert testimony on the psychological and
mental state of the parties in cases for the declaration of the nullity of marriages,
for by the very nature of Article 36 of the Family Code the courts, "despite having
the primary task and burden of decision-making, must not discount but, instead,
must consider as decisive evidence the expert opinion on the psychological and
mental temperaments of the parties."
Consequently, the lack of personal examination and interview of the
person diagnosed with personality disorder, like the respondent, did not per se
invalidate the findings of the experts. The Court has stressed in Marcos v.
Marcos, that there is no requirement for one to be declared psychologically
incapacitated to be personally examined by a physician, because what is
important is the presence of evidence that adequately establishes the partys
psychological incapacity. Hence, "if the totality of evidence presented is enough
to sustain a finding of psychological incapacity, then actual medical examination
of the person concerned need not be resorted to."
In Halili vs. Santos-Halili and The Republic, petitioner Lester Benjamin
alleged his own psychological incapacity in a petition for declaration of nullity of
his marriage to Chona. As petitioner pointed out, he married respondent thinking
that such marriage is a mere joke.

After the ceremony, there was no

consummation, no sexual intercourse and he never lived with respondent.

These allegations were corroborated by the expert witness Dr. Natividad
Dayan. As testified to and based on her findings, it was found out that petitioner
has mixed personality disorder from self-defeating personality disorder to
[dependent] personality disorder and this is brought about by his own
dysfunctional family; with an abusive and very domineering father who treated
them as robots. He also suffered from partner relational problem during his
marriage with respondent.
The Supreme Court then ruled that it has been sufficiently established that
petitioner had a psychological condition that was grave, incurable and had a
deeply rooted cause. In citing Te, the court recognized that individuals with
diagnosable personality disorders usually have long-term concerns, thus, therapy
may be long-term. Mostly, personality disorders are "long-standing, inflexible

ways of behaving that are not so much severe mental disorders as dysfunctional
styles of living. These disorders affect all areas of functioning and, beginning in
childhood or adolescence, create problems for those who display them and for
others.
In another case entitled De Castro vs. De Castro, Jr., et al. private
respondent Crispino alleged his own psychological inacapacity to perform his
marital obligations by testifying that he was impulsive and reckless in his youth.
He impregnated petitioner while studying and married her so as not to expose
both their families to further humiliation. He further stated that their quarrels
intensified during the marriage and for being immature and unable to cope with
their marital problems he abandoned his family many times and became involved
in different affairs. He even alleged that they tried to save their marriage through
counseling, but to no avail. He thereafter left their family home for good and lived
with another woman with whom he had three illegitimate children.
After a thorough review of the evidence presented including the
testimonies of private respondent and the expert witness Dra. Cecilia Albaran
(psychiatrist), the Court finds and so holds that both parties are psychologically
incapacitated to enter into marriage. Therefore, the court was convinced that
from the pieces of evidence there appears sufficient basis to declare the
psychological incapacity of both spouses to enter into marriage.
The Court also cited the case of Marcos vs. Marcos (397 Phil. 840 [2000]),
if the totality of evidence presented is enough to sustain a finding of
psychological incapacity, there is no requirement that the person to be declared
psychologically incapacitated be personally examined by a physician.

The Defendant failed to sufficiently controvert

the diagnosis on her made by the expert witness
The psychological incapacity of the Plaintiff
was not contested by the Defendant.

Declaration of Nullity of Marriage is proper

because Article 36 of the Family Code speaks
of Psychological Incapacity of either or both parties

Both parties were incapable of performing

essential marital obligations as provided
in Arts. 68-71 of the Family Code

In dissolving marital bonds on account of either partys psychological

incapacity, the Court is not demolishing the foundation of families, but it is
actually protecting the sanctity of marriage, because it refuses to allow a
person afflicted with a psychological disorder, who cannot comply with or
assume the essential marital obligations, from remaining in that sacred
bond. It may be stressed that the infliction of physical violence,
constitutional indolence or laziness, drug dependence or addiction, and
psychosexual anomaly are manifestations of a sociopathic personality
anomaly.Let it be noted that in Article 36, there is no marriage to speak of
in the first place, as the same is void from the very beginning.To indulge in
imagery, the declaration of nullity under Article 36 will simply provide a
decent burial to a stillborn marriage.5

II Custody of child of tender years may be granted to the Father in cases of

compelling reasons such as abandonment and neglect
Article 213 of the Family Code provides that:
In case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age unless
the parent chosen is unfit.

Moreover, Article 363 of the Civil Code also provides that:

In all questions on the care, custody, education and property of children, the
latters welfare shall be paramount. No mother shall be separated from her child
under seven years of age, unless the Court finds compelling reasons for such
measure.
Above-mentioned provision is supported by Article 17 of the Child and Youth
Welfare Code, which similarly mandates that no child under five years of age
shall be separated from his mother, unless the Court finds compelling reasons to
do so.

5Azcueta vs. Republic, G.R.No. 180668, 26 May 2009, citing Te vs. Te

The task of choosing the parent to whom custody shall be awarded is not
a ministerial function to be determined by a simple determination of the age of a
minor child. Whether a child is under or over seven years of age, the paramount
criterion must always be the child's interests. Discretion is given to the court to
decide who can best assure the welfare of the child, and award the custody on
the basis of that consideration.
Courts must not lose sight of the basic principle that "in all questions on
the care, custody, education and property of children, the latter's welfare shall be
paramount and that for compelling reasons, even a child under seven may be
ordered separated from the mother.
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.
Also, Article 3 [1] of the Convention on the Rights of the Child provides
that:

XXX
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.

XXX

The principle of "best interest of the child" pervades Philippine cases

involving adoption, guardianship, support, personal status, minors in conflict with
the law, and child custody. In these cases, it has long been recognized that in
choosing the parent to whom custody is given, the welfare of the minors should
always be the paramount consideration. Courts are mandated to take into
account all relevant circumstances that would have a bearing on the children's
well-being and development. Aside from the material resources and the moral
and social situations of each parent, other factors may also be considered to
ascertain which one has the capability to attend to the physical, educational,
social and moral welfare of the children. Among these factors are the previous
care and devotion shown by each of the parents; their religious background,

moral uprightness, home environment and time availability; as well as the

children's emotional and educational needs.
However, the law favors the mother if she is a fit and proper person to
have custody of her children so that they may not only receive her attention,
care, supervision but also have the advantage and benefit of a mothers love and
devotion for which there is no substitute. Generally, the love, solicitude and
devotion of a mother cannot be replaced by another and are worth more to a
child of tender years than all other things combined. If a child is under seven
years of age, the law presumes that the mother is the best custodian. The
presumption is strong but it is not conclusive. It can be overcome by "compelling
reasons".
It is axiomatic in our jurisprudence that in controversies regarding the
custody of minors the sole and foremost consideration is the physical, education,
social and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the contending parents.
Never has this Court diverted from that criterion.
In the case at bar, compelling reasons and childs best interest overcome
the presumption that the mother is the best custodian for a child of tender years.
The petitioner, having courageously assumed the roles of both the father and the
mother to the child for some considerable length of time, he has exhibited his
desire and ability to foster an open and loving relationship with her. Continuously
looking out for the minor childs health, safety, and welfare, petitioner has thus
provided, and continues to provide, the most suitable physical, emotional,
spiritual, and psychological environment for Renesmee.

In fact, during the cross-examination of the Petitioner, he was able to

establish that the child is taken care of despite his graveyard shift as a call center
agent. The Transcript of Stenographic Notes for the hearing dated January 16,
2016 revealed that:
x xx
ATTY. VILLANUEVA: You said that you assume both role of mother and
the father. So, you are saying that there are instances that you alone look
after Renesmee up to these days when she is in your custody?
MR. CULLEN: Yes, Maam.

ATTY. VILLANUEVA:

Nevertheless, you still kept your graveyard shift

from 9pm to 6am, correct?

MR. CULLEN:

Yes, Maam.

ATTY. VILLANUEVA:

Therefore, the child is alone from the time you

leave the house for work. Correct?

MR. CULLEN:

That is not correct, Maam.

ATTY. VILLANUEVA: Therefore, there is other person who look after the
child?
MR. CULLEN:

Yes, Maam. A family member.

x xx
ATTY. SANTOS: During the cross, you also said that you bring your
daughter to the pediatrician, why you were the one who brought her?
MR. CULLEN:

I had to be the one because my wife is always out of

the house, she has no time and when shes at home shes sleeping or
resting from her work.
x xx

The special bond and close relationship between the petitioner and the
minor child primarily contributed to the emotional and psychological stability of
the latter despite the abandonment of the mother. Such abandonment shall be
deemed as sufficient ground to maintain the status quo, that is, to maintain the
custody of the child with the petitioner. The respondent showed lack of interest to
take custody of the child as she has never even tried to explain to the child why
she left nor tried to reassure her of a mothers love despite her absence. It was
only after the filing of this case, specifically in her Answer, that she asserted her
right over the custody of their minor child. From the time she left the conjugal
dwelling up to the institution of this action, it was solely the petitioner who
assumed all the parental roles. Disturbing the status quo might adversely affect
the emotional and psychological faculties of the minor, being inept of capacity to
understand the situation.
Moreover, the regularity and consistency of the work schedule of the
petitioner as a call center agent would serve the best interest of the child as he
would mostly, if not always, be there for the Renesmee at any time the latter

needs him. Work-related emergencies are less likely to occur compared to the
demands of the medical profession, hence, more time will be devoted to protect
the interest and well-being of the child. Renesmee, being only 4 years of age, is
at a crucial stage of development. As such, the constant presence of a parent is
essential for her optimum development and holistic growth. Petitioners presence
in the everyday life of the minor child, from the moment the latter wakes up to the
time she sleeps, spells a lot of difference in her development compared to living
with a parent whom she seldom sees or spends time with.
Consistent with the paramount interest of their child, Renesmee, sole
custody over her should remain with the petitioner.

PRAYER
WHEREFORE, premises considered, Plaintiff most respectfully prays that of
this Honorable Court the following:
1. ORDER that a decree of absolute nullity of marriage between
petitioner and respondent be ISSUED on the ground of both
petitioner and respondents psychological incapacity to perform the
essential marital obligations under Article 36 of the Family Code;
2. MAINTAIN petitioner in the exercise of parental authority, including
custody, over their minor child pending the proceedings, without
prejudice to any final ruling on the matter of parental authority and
custody, or the grant of any interim visitation rights to respondent,
but always consistent with the principle having due regard with the
best interest of the child;
Petitioner prays for such further or other relief as may be just or equitable,
including but not limited to a final determination as to whom among the parties
will be awarded sole parental authority and custody over the minor child
Renesmee S. Cullen, as well as any award of visitation rights to the other parent.
CULLEN & ASSOCIATES
Counsel for Edward Cullen
678 Bloody Bldg., Valero Street, Makati City
Tel. No. 813-5443 to 44

Fax No. 813-5445

By:

ATTY. JACOB WOLF BLACK

Roll No. 12345
IBP Lifetime No. 54321
MCLE Compliance No. V-0009651 (05.05.15)

Copy furnished:

CLEARWATER AND ASSOCIATES

Counsel for Defendant
6th Floor, Tall Building, 134 Amorsolo St.
Legaspi Village, Makati City
Tel. No. (632) 82932553

The Office of the Solicitor General

134 Amorsolo Street, Legaspi Village
Makati City
The Office of the City Prosecutor
Makati City