Habeas Corpus Child Custody

HABEAS CORPUS; CHILD CUSTODY; RIGHT OF CHOICE OF PARENTS;
MASBATE v. RELUCIO, G.R. No. 235498, July 30, 2018
It is settled that HABEAS CORPUS may be resorted to in cases where

"the rightful custody of any person is withheld from the person entitled
thereto."50 In custody cases involving minors, the writ of habeas corpus is
prosecuted for the purpose of determining the right of custody over a child.
The grant of the writ depends on the concurrence of the following requisites:
(1) that the petitioner has the right of custody over the minor; (2) that the
rightful custody of the minor is being withheld from the petitioner by the
respondents; and (3) that it is to the best interest of the minor concerned to
be in the custody of petitioner and not that of the respondents.51
"The right of custody accorded to parents springs from the exercise of

parental authority. Parental authority or patria potestas in Roman Law is the
juridical institution whereby parents rightfully assume control and protection
of their unemancipated children to the extent required by the latter's needs.
It is a mass of rights and obligations which the law grants to parents for the
purpose of the children's physical preservation and development, as well as
the cultivation of their intellect and the education of their heart and senses.
As regards parental authority, 'there is no power, but a task; no complex
of rights, but a sum of duties; no sovereignty but a sacred trust for the
welfare of the minor.'"52
As a general rule, the father and the mother shall jointly exercise parental
authority over the persons of their common children. 53 However, insofar as
illegitimate children are concerned, Article 17654 of the Family Code states
that illegitimate children shall be under the parental authority of
their mother. Accordingly, mothers (such as Renalyn) are entitled to the
sole parental authority of their illegitimate children (such as Queenie),
notwithstanding the father's recognition of the child. In the exercise of that
authority, mothers are consequently entitled to keep their illegitimate
children in their company, and the Court will not deprive them of
custody, absent any imperative cause showing the mother's unfitness to
exercise such authority and care.55
In addition, ARTICLE 213 OF THE SAME CODE provides for the so-
called tender-age presumption, stating that "[n]o child under seven [(7)]
years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise." The rationale behind the rule was
explained by the Code Commission in this wise:
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 indeed be rare, if the mother's heart is
not to be unduly hurt. x x x56
According to jurisprudence, the following instances may constitute

"compelling reasons" to wrest away custody from a mother over her child
although under seven (7) years of age: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a communicable
disease.57
As the records show, the CA resolved to remand the case to the RTC,
ratiocinating that there is a need to establish whether or not Renalyn has
been neglecting Queenie,58 for which reason, a trial is indispensable for
reception of evidence relative to the preservation or overturning of the
tender-age presumption under Article 213 of the Family Code. 59 In
opposition, petitioners contend that the second paragraph of Article 213 of
the Family Code would not even apply in this case (so as to determine
Renalyn's unfitness as a mother) because the said provision only applies to a
situation where the parents are married to each other. 60 As basis, petitioners
rely on the Court's ruling in Pablo-Gualberto v. Gualberto V61 (Pablo-
Gualberto), the pertinent portion of which reads:
In like manner, the word "shall" in Article 213 of the Family Code and
Section 6 of Rule 99 of the Rules of Court has been held to connote a
mandatory character. Article 213 and Rule 99 similarly contemplate a
situation in which the parents of the minor are married to each
other, but are separated by virtue of either a decree of legal separation or
a de facto separation. x x x62
For easy reference, Article 213 of the Family Code and Section 6, Rule 99 of
the Rules of Court, which were cited in Pablo-Gualberto, are quoted
hereunder in full:
Article 213 of the Family Code
Article 213. 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.
No child under seven years of age shall be separated from the mother unless
the court finds compelling reasons to order otherwise.
Section 6, Rule 99 of the Rules of Court
Section 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 question 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 so chosen be unfit to take charge of the child by reason of
moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such
hearing, it appears that both parents are improper persons to have the care,
custody, and control of the child, the court may either designate the paternal
or maternal grandparent of the child, or his oldest brother or sister, or some
reputable and discreet person to take charge of such child, or commit it to
any suitable asylum, children's home, or benevolent society. The court may
in conformity with the provisions of the Civil Code order either or both
parents to support or help support said child, irrespective of who may be its
custodian, and may make any order that is just and reasonable permitting
the parent who is deprived of its care and custody to visit the child or have
temporary custody thereof. Either parent may appeal from an order made in
accordance with the provisions of this section. No child under seven years of
age shall be separated from its mother, unless the court finds there are
compelling reasons therefor.
Notably, after a careful reading of Pablo-Gualberto, it has been determined

that the aforequoted pronouncement therein is based on a previous child
custody case, namely, Briones v. Miguel63(Briones),wherein the Court
pertinently held as follows:
However, the CA erroneously applied Section 6 of Rule 99 of the Rules of

Court. This provision contemplates a situation in which the parents of the
minor are married to each other but are separated either by virtue of a
decree of legal separation or because they are living separately de facto. In
the present case, it has been established that petitioner and Respondent
Loreta were never married. Hence, that portion of the CA Decision allowing
the child to choose which parent to live with is deleted, but without
disregarding the obligation of petitioner to support the child.64
For guidance, the relevant issue in Briones for which the stated excerpt was
made is actually the application of Section 6, Rule 99 of the Rules of Court
insofar as it permits the child over ten (10) years of age to choose which
parent he prefers to live with. As the Court's ruling in Briones was
prefaced: "[t]he Petition has no merit. However, the assailed Decision should
be modified in regard to its erroneous application of Section 6 of Rule 99 of
the Rules of Court."65 Accordingly, since the statement in Pablo-
Gualberto invoked by petitioners, i.e., that "Article 213 and Rule 99 similarly
contemplate a situation in which the parents of the minor are married to
each other x x x," was based on Briones, then that same statement must be
understood according to its proper context – that is, the issue pertaining to
the right of a child to choose which parent he prefers to live with. The reason
as to why this statement should be understood in said manner is actually not
difficult to discern: the choice of a child over seven (7) years of age (first
paragraph of Article 213 of the Family Code) and over ten (10) years of age
(Rule 99 of the Rules of Court) shall be considered in custody disputes only
between married parents because they are, pursuant to Article 211 of the
Family Code, accorded joint parental authority over the persons of their
common children. On the other hand, this choice is not available to an
illegitimate child, much more one of tender age such as Queenie (second
paragraph of Article 213 of the Family Code), because sole parental
authority is given only to the mother, unless she is shown to be unfit or
unsuitable (Article 176 of the Family Code). Thus, since the issue in this case
is the application of the exception to the tender-age presumption under the
second paragraph of Article 213 of the Family Code, and not the option given
to the child under the first paragraph to choose which parent to live with,
petitioners' reliance on Pablo-Gualberto is grossly misplaced.
In addition, it ought to be pointed out that the second paragraph of Article

213 of the Family Code, which was the basis of the CA's directive to remand
the case, does not even distinguish between legitimate and illegitimate
children – and hence, does not factor in whether or not the parents are
married – in declaring that "[n]o child under seven [(7)] years of age shall
be separated from the mother unless the court finds compelling reasons to
order otherwise." "Ubi lex non distinguit nec nos distinguere debemos. When
the law makes no distinction, we (this Court) also ought not to recognize any
distinction."66 As such, petitioners' theory that Article 213 of the Family Code
is herein inapplicable – and thus, negates the need for the ordered remand –
is not only premised on an erroneous reading of jurisprudence, but is also
one that is fundamentally off-tangent with the law itself.

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HABEAS CORPUS; CHILD CUSTODY; RIGHT OF CHOICE OF PARENTS;

MASBATE v. RELUCIO, G.R. No. 235498, July 30, 2018

It is settled that HABEAS CORPUS may be resorted to in cases where

"The right of custody accorded to parents springs from the exercise of

According to jurisprudence, the following instances may constitute

Article 213 of the Family Code

Article 213. In case of separation of the parents, parental authority shall be

Section 6, Rule 99 of the Rules of Court

Section 6. Proceedings as to child whose parents are separated. Appeal. –

Notably, after a careful reading of Pablo-Gualberto, it has been determined

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of

In addition, it ought to be pointed out that the second paragraph of Article

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