4th Reviewer PFR

Persons and Family Relations Reviewer
(4th Exam Coverage)

TITLE VI  Status of M: If she claims that is hers because she will be
PATERNITY AND FILIATION introducing a new blood to her husband which can make her
Chapter 1. Legitimate Children liable for adultery.
Art. 163. The filiation of children may be by nature or by  Naturally, when the woman gets impregnated the child is
adoption. Natural filiation may be legitimate or illegitimate. born naturally so the mother cannot negate the legitimacy
(n) of her own child.
 Segway: surrogacy is considered a crime (A form of human
 There are TWO TYPES OF AFFILIATION: trafficking).
1. By nature; and  Are there instances when a child may bear out of a
a) Legitimate subsequent marriage but that child is still considered as
b) Illegitimate legitimate?
2. By adoption.  There is, base it on Art. 43 par. 1
Art. 43. The termination of the subsequent marriage
Art. 164. Children conceived or born during the marriage of referred to in the preceding Article shall produce the
the parents are legitimate. following effects:
Children conceived as a result of artificial insemination of the (1) The children of the subsequent marriage
wife with the sperm of the husband or that of a donor or both conceived prior to its termination shall be considered
are likewise legitimate children of the husband and his wife, legitimate.
provided, that both of them authorized or ratified such  If the subsequent bigamous marriage is terminated children
insemination in a written instrument executed and signed by conceived or born during that marriage are considered
them before the birth of the child. The instrument shall be legitimate. It is because that subsequent bigamous
recorded in the civil registry together with the birth marriage even if it is bigamous remains to be legitimate it is
certificate of the child. (55a, 258a) just subject to a reappearance of the absentee spouse
 This article talks about legitimate children who are Art. 165. Children conceived and born outside a valid
conceived or born during the marriage of your parents. marriage are illegitimate, unless otherwise provided in this
Otherwise, you will be considered as illegitimate children. Code. (n)
 Art. 164 par. 2 talks about an instance of artificial
insemination. There have been a lot of questions before  For one to be considered as an illegitimate child it must be
about the legal status of children who are products of invitro that the child is conceived and born outside of a valid
fertilization our laws have not caught up yet (our laws have marriage.
not yet regulated such instances).  EXCEPTION: Art. 54
 Take note: the law only recognizes of instances of artificial Art. 54. Children conceived or born before the
insemination judgment of annulment or absolute nullity of the
 What If there is no consent from the husband when the wife marriage under Article 36 has become final and
conducted Artificial Insemination? executory shall be considered legitimate. Children
o The wife will be guilty of adultery. conceived or born of the subsequent marriage under
 Why is it that with respect to IVF and surrogacy the law has Article 53 shall likewise be legitimate.”
not yet caught up with those medical advances?  Despite these marriages are declared void, children
o It is because it blurs the lines of filiation. conceived during these marriages are considered legitimate.
o Remember: a mother cannot declare the filiations
against her own child that is why when a procedure Art. 166. Legitimacy of a child may be impugned only on the
may be introduced scientifically that may declare following grounds:
against that filiation it goes against the fabric on (1) That it was physically impossible for the husband to have
what the Family code stands for. sexual intercourse with his wife within the first 120 days of
 What if the surrogate mother will intervene? the 300 days which immediately preceded the birth of the
o If the zygote is the result of the fertilization of the child because of:
wife’s ovum by her husband’s sperm, then the child (a) the physical incapacity of the husband to have sexual
is the wife’s. The surrogate mother here must intercourse with his wife;
therefore be explained that she has merely carried (b) the fact that the husband and wife were living separately
the child in her womb for development. in such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely
EXAMPLE SCENARIOS: prevented sexual intercourse;
A. W (wife) ovum is fertilized through in-vitro with using the (2) That it is proved that for biological or other scientific
sperm of D (donor) and was implanted to the surrogate mother reasons, the child could not have been that of the husband,
without the consent of H (husband). except in the instance provided in the second paragraph of
 Status of the child: Illegitimate. Article 164; or
 This is because the child is not the child of the husband (3) That in case of children conceived through artificial
because they used the sperm of a donor. insemination, the written authorization or ratification of
 Status of the wife: The wife is not liable for adultery because either parent was obtained through mistake, fraud, violence,
W and D were never married (they never had any sexual intimidation, or undue influence. (255a)
intercourse) they are only the parents of the child.
B. M (surrogate mother) who is married allowed to be the PAR. 1 (a)
carrier of the zygote of H and W without the consent of M’s  This is only possible if:
husband. 1. There is an absence of sexual organ on the part of
 Status of the child: H & W are the parents of the child. the husband which could be due to natural,
accidental or other causes
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by: Satol Pahm Parilla Reyes Aritalia Yaplito
From the discussion of Atty. Alabastro
(4th Exam Coverage)
2. Impotency of the husband  These rules are only applicable to a problem in the case of
(b) absence of proof to the contrary where these presumptions
 Separation must be of such a nature that sexual access is will attach.
not possible as when the spouses reside in different  If there are cases that there is actual proof, through blood
countries or provinces and were never together during the tests etc. to prove filiation then art 168 & 169 are
period of conception. IMMATERIAL.
(c)  Art 168 are only presumptions to fill a void where there is
 Illness must be serious that would absolutely prevent sexual an absence of proof to prove ones filiation.
intercourse such as when the husband is in comatose or in  WITH RESPECT TO PREMATURE MARRIAGES:
ICU. Tuberculosis is not acceptable because it does not o It used to be under Art. 351 of the RPC. But
deprive him of his capacity for sexual intercourse. because of the passage of RA 10655 premature
 Under art. 166, the law considers that it a woman can birth marriages are already decriminalized.
even beyond the 9-month period. This is the reason why o Take note: that decriminalization or premature
there is a 300-day period. marriages as a felony is still without prejudice to
 The period must be during the marriage not before. It must the effects of the family code that is why we still
be within the first 120 days of the 300 days which rely on the presumptions of 168 & 169.
IMMEDIATELY PRECEDED the birth of the child.  There is a criminal liability for premature marriages. The
 Question: Suppose there is sexual access after the 120-day RPC punishes any widow who:
period above-mentioned, can the legitimacy of the child be 1. Who shall marry within 301 days from date of the
impugned? death of husband.
Answer: YES. Provided there is no sexual access within the 2. Before having delivered if she shall have been
120 days of the 300 days which immediately preceded the pregnant at the time of her husband’s death with a
birth of the child. penalty of arrest mayor.
 If there is possibility of access, child is presumed legitimate.  Also applicable to a wife whose marriage had been annulled
PAR. 2 or declared void. If she is pregnant at the time of the finality
 If it can be established by biological or scientific finding that of the decision, it is prudent for her not to remarry to avoid
a child is not that of the husband, the legitimacy of the child questions of paternity of the child.
may be impugned.
 EXAMPLE: Through DNA tests. Art. 169. The legitimacy or illegitimacy of a child born after
PAR. 3 three hundred days following the termination of the marriage
 Contemplates a situation when there is a defect in the shall be proved by whoever alleges such legitimacy or
written authorization or the written ratification. It does not illegitimacy. (261a)
talk about the absence of that written authorization because
if there is an absence of that written authorization (which is  Art. 168 speaks of children born within 300 days after the
required in 164). termination of the first or former marriage. Art. 169 speaks
 Take note: that the child is considered illegitimate because of children born thereafter it does not make
of failure to comply of par. 2 of Art. 164. pronouncements as to whether such children are legitimate
or illegitimate, it shall be proven by evidence by whoever
Art. 167. The child shall be considered legitimate although alleges or claims the same.
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress. (256a) Art. 170. The action to impugn the legitimacy of the child
shall be brought within one year from the knowledge of the
 A woman is not allowed to declare against the legitimacy of birth or its recording in the civil register, if the husband or,
their child this is because naturally the woman is the one in a proper case, any of his heirs, should reside in the city or
who carried the child. municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside
Art. 168. If the marriage is terminated and the mother at the place of birth as defined in the first paragraph or where
contracted another marriage within three hundred days after it was recorded, the period shall be two years if they should
such termination of the former marriage, these rules shall reside in the Philippines; and three years if abroad. If the
govern in the absence of proof to the contrary: birth of the child has been concealed from or was unknown
(1) A child born before one hundred eighty days after the to the husband or his heirs, the period shall be counted from
solemnization of the subsequent marriage is considered to the discovery or knowledge of the birth of the child or of the
have been conceived during the former marriage, provided it fact of registration of said birth, whichever is earlier. (263a)
be born within three hundred days after the termination of
the former marriage;  The heirs of the husband may impugn the same filiation of
(2) A child born after one hundred eighty days following the the child subject to certain conditions.
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born Art. 171. The heirs of the husband may impugn the filiation
within the three hundred days after the termination of the of the child within the period prescribed in the preceding
former marriage. (259a) article only in the following cases:
(1) If the husband should died before the expiration of the
 Premature marriages in relation to Art. 169 period fixed for bringing his action;
 Contemplates a situation that the marriage has been (2) If he should die after the filing of the complaint without
terminated on account of the death of the husband or the having desisted therefrom; or
father but there is also a possibility of other instances of (3) If the child was born after the death of the husband.
termination. (262a)
 Take note: 168 and 169 only set-up presumptions.
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(4th Exam Coverage)
 Take Art. 170 & 171 in relation to grounds under Art. 166 deceased Isabel, it stated that they were the ones along with
because the legitimacy of a child cannot be impugned the brother of Isabel that they are the sole heirs of the
except for these grounds: deceased Isabel. This means, that because she died without
1. Shall be brought 1 year from the knowledge of the descendants or ascendants, having made that declaration
birth or its recording in the civil register. If the therefore, it repudiated the certificate of live birth which was
husband or heirs do not reside in the place of birth presented by Marisa and it was a declaration on the part of
indicated in art. 170 then the period to bring an Vicente that he did not have any children and therefore,
action with respect to impugning legitimacy is Marisa could not have been his biological child.
within 2 years and 3 years if abroad. Remember: The claim of this case was that, Marisa was a
2. If the birth of the child has been concealed form child of Vicente, and because of that document (extrajudicial
the husband of the heirs, the period shall be document) it immediately rebutted Marisa’s claim.
counted from discovery or knowledge of the birth Furthermore, Isabel could not have possible given birth
of the child or of the fact of registration of the said considering her age that time.
birth whichever is earlier. It is not necessary that Take note: In this case it tells you that it must involve a
you reckon it from the moment of the discovery or biological child and the child must be undisputed child.
acquisition of knowledge regarding of the birth.
 It is necessary to reckon these periods form the fact of BABIERA vs. CATOTAL
registration. Meaning the certification of live birth in the civil In instances where there are documents or an action to
register this is because this registration like any other declare a document that is null and void, in Art. 39 in cases
registration we have discussed before this partakes of void marriages an action to declare those marriages are
constructive notice to the entire world. imprescriptible. Since, it is imprescriptible, the periods under
 That is why the moment of register of the fact of this Art. 170 does not apply.
certificate of live birth we must reckon the period from such
“Fact”. (We do not reckon it from the time of discovery on DE JESUS vs. HEIRS OF DIZON
the registration, but on the fact of registration) Issue: Whether or not legitimate children may impugn their
 In EXCEPTIONAL CASES, although the action to impugn own filiation.
the legitimacy of a child is a personal right which the law Question: In actions to impugn legitimacy may it be passed
confers on the husband or father, this action may be upon in proceedings such as the settlement of the estate? Is
pursued by the heirs of the husband. The reason behind why it subject to a collateral attack?
the husband is given the personal right to impugn the Answer: NO, in this case if one impugns illegitimate filiation
legitimacy of the child is because he is the one confronted but has already been established as a legitimate child of
with a “SCANDAL” of having to deal with the introduction of some spouse, denouncing your legitimate status is a form of
the child to the family. It must be necessary with respect impugning your own legitimacy. Because you are saying you
to the child, it is not contested that the child is biological are not the legitimate children of your parents, you are an
child of the parents and that child has been born in a valid illegitimate child of some other person.
marriage. So, in actions to impugn one’s legitimate filiation- it is not
 Despite, this action being a personal right, the heirs of the allowed. Because the law only accords that right (to impugn)
husband may impugn the legitimacy of the said child. The to the husband and to the heirs of the husband.
impugning of the heirs must still follow the periods provided In this case, legitimate children cannot claim illegitimate
under Art. 170. filiation just to acquire inheritance. The SC said, actions to
 There are circumstances’ in order to warrant that the heirs impugn one’s filiation must be brought in a direct suit in
will file this action (these are the instances the heirs may questioning or assailing that direct issue. One’s declaration
impugn the filiation of the child): of legitimacy is not susceptible to an attack collaterally; it
1. If the husband should die before the expiration of must be in a direct suit. So, without filing an actual action to
the period required to bring this action. impugn legitimacy the issue of your legitimate filiation or
2. If the husband should die after filing the complaint illegitimate filiation these cannot be passed upon in other
(the heirs will continue the action). proceedings. Such as in this case where a proceeding is
3. The child was born after the death of the husband. trying to claim for an inheritance from the deceased.
 (THESE ARE THE PERIODS WHERE WE RECKON THE
DISCOVERY OR REGISTRATION WITH RESPECT TO THE
LIYAO JR. vs. TANHOTI-LIYAO
BIRTH OF THE CHILD)
Impugning the legitimacy of the child is a strictly personal
o It must be necessary under the circumstances
right of the husband, or in exceptional cases, his heirs for the
contemplated under Art. 171 because the action of
reason that he was the one directly confronted with the
the heirs on the husband to impugn the filiation of
scandal and ridicule which the infidelity of his wife produced
the child, is an EXCEPTIONAL CIRCUMSTANCE.
and he should be the one to decide whether to conceal that
 The child may impugn his legitimacy if and the action may
infidelity or expose it in view of the moral and economic
bring anytime during his lifetime.
interest involved. Hence, it was then settled that the
legitimacy of the child can only be impugned in a direct action
BADUA vs. COURT OF APPEALS
brought for that purpose, by the proper parties and within
Issue: Whether or not the action is to impugn legitimate the period limited by law.
filiation. Furthermore, the court held that there was no clear,
Marisa was trying to claim that the letters of administration competent and positive evidence presented by the petitioner
should not be given in favor of Benite, because Marisa was that his alleged father had admitted or recognized his
the sole heir of the deceased Vicente. paternity.
Question: Is this an action to impugn one’s legitimacy?
NO, because there are requisites to impugn one’s legitimacy.
CONCEPCION vs. COURT OF APPEALS
In this case the SC said that Vicente Benitez when he
Take note: it is always important to establish one’s filiation
executed the extrajudicial settlement of the estate of the
it will have a lot of effects especially with regard to the
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employment or usage of ones surname. Nevertheless, here Art. 174. Legitimate children shall have the right:
the SC discussed that with respect to the physical (1) To bear the surnames of the father and the mother, in
impossibility to have a sexual intercourse it should be conformity with the provisions of the Civil Code on
established to be beyond reasonable doubt. Surnames;
The mere assertion that they do not have any sexual (2) To receive support from their parents, their ascendants,
intercourse is not sufficient. This physical impossibility must and in proper cases, their brothers and sisters, in conformity
be one convincingly show to the court, otherwise without with the provisions of this Code on Support; and
sufficient evidence then it is presumed that there is sexual (3) To be entitled to the legitimate and other successional
intercourse. rights granted to them by the Civil Code. (264a)
ONG vs. DIAZ  Those children who are considered as legitimate, they have
There was a need to establish the filiation of Joan with the following rights which the law requires should be
respect to Rogelio because Jinky in representation of Joan mandatory.
was asking for support alleging that one’s filiation has  Always remember to determine the child’s affiliation first
already been established, Joan as the child of Rogelio is because after determining whether the child is legitimate or
entitled for support. illegitimate, all the rights will follow.
Take note: Always determine filiation first then all rights will  However, there is nothing to preclude from legitimate
follow. children from wavering their rights enumerated under art.
The SC held here that Joan must undergo DNA testing to 174.
establish as ordered by the lower court. Now comes this  EXAMPLE: Legitimate children may not use the surname of
opposition, they were trying to evade the lower court’s their father.
decision because they were saying that Rogelio has already
died and as for as they are concerned DNA testing is  Take note: We have to make a distinction between Art.
immaterial. The SC then allowed the remand of the case to 172, 173 and 174 from Art. 175 & 176 as amended because
the lower court in order to establish one’s filiation. these articles talk about the rules about illegitimate children.
 Question: With regard to illegitimate children, what is the
Chapter 2. Proof of Filiation manner by which they can prove their filiation? What are the
periods where they can make such complaint?
Art. 172. The filiation of legitimate children is established by Answer: Art. 175 (here compare Art, 172 & 173 from 175)
any of the following:
(1) The record of birth appearing in the civil register or a final Chapter 3. Illegitimate Children
judgment; or
(2) An admission of legitimate filiation in a public document Art. 175. Illegitimate children may establish their illegitimate
or a private handwritten instrument and signed by the parent filiation in the same way and on the same evidence as
concerned. legitimate children.
In the absence of the foregoing evidence, the legitimate The action must be brought within the same period specified
filiation shall be roved by: in Article 173, except when the action is based on the second
(1) The open and continuous possession of the status of a paragraph of Article 172, in which case the action may be
legitimate child; or brought during the lifetime of the alleged parent. (289a)
(2) Any other means allowed by the Rules of Court and
special laws. (265a, 266a, 267a)  This article makes a clear distinction than 172 and 173.
 First: Proofs to establish one’s illegitimate filiation.
 In this article we talk about two different types of proof:  These are the same proofs with respect to legitimate
1. Primary proofs children. (the primary and secondary proofs under Art. 172
– Must have some form of writing in order to attest ). Nevertheless, depending on the type of proof that is used
the fact of affiliation. in order to establish ones illegitimacy there will be a
2. Secondary proofs. difference with regard to the periods. As a rule the action
– No need for writing. must be brought within the same period provided for under
Art. 173. But, what is used to establish ones illegitimate
Art. 173. The action to claim legitimacy may be brought by filiation is based on secondary proof meaning the second
the child during his or her lifetime and shall be transmitted paragraph of Art. 172 this action to claim illegitimate filiation
to the heirs should the child die during minority or in a state under the compulsory recognition of illegitimate children
of insanity. In these cases, the heirs shall have a period of they may only be brought during the life time of the alleged
five years within which to institute the action. parent (the putative father).
 Question: Why is it necessary during the life time of the
 This article pertains an action to claim ones LEGITIMACY. putative father?
 This is an action that pertains to compulsory recognition. Answer: Because the mother cannot declare against the
Because of the proofs to establish one’s legitimacy, illegitimacy of her own child.
compulsory recognition may be filed before the court.  Question: Why does the law envision this action to claim
 This action must be brought during the life time of the child illegitimate filiation must be brought during the life time of
and must be transmitted to the heirs of the child, if the child the alleged parent?
dies or incapacitated because of insanity. Answer: Because one’s death already silenced the lips of
 There is only a period of 5 years to claim for legitimacy. the putative father. There are no other persons who may
 Question: Why is there a need to claim legitimacy with properly dispute the claim for illegitimate filiation. That is
respect to the heirs? why this action to claim illegitimate filiation must be brought
Answer: Because legitimate children have rights under the within this period only if you rely your claim based on
law. These rights are discussed under Art. 174. secondary proofs.
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 This is because the only problem with regard to secondary petitioner is not a legitimate child of Jose, but that she is not
proofs is that there is no written document to prove one’s a child of Jose at all. A baptismal certificate, a private
filiation. Since, there is no form of writing to establish one’s document, is not conclusive proof of filiation. Use of a family
illegitimate filiation to establish ones affiliation based on name certainly does not establish pedigree. Thus, she
secondary proofs, it is necessary that this claim to establish cannot inherit from him through intestate succession.
filiation must be during the life time of the putative father
only. LOCSIN vs. LOCSIN JR.
The Supreme Court held that it would be a dangerous
Art. 176. Illegitimate children shall use the surname and shall precedent that just by showing any picture that the alleged
be under the parental authority of their mother, and shall be children of the deceased were taken in a funeral and
entitled to support in conformity with this Code. The legitime automatically that is already convincing proof of affiliation.
of each illegitimate child shall consist of one-half of the
legitime of a legitimate child. Except for this modification, all BERNABE vs. ALEJO
other provisions in the Civil Code governing successional This case is an action for recognition during the effectivity of
rights shall remain in force. (287a) the Civil Code, filed by Carolina in behalf of Adrian (minor)
whom Fiscal Bernabe allegedly fathered. Within what period,
 Art. 176 talks about the rights of illegitimate children. Adrian was arguing that he may claim recognition as an
 With respect to surnames by default, it should be the illegitimate child, 4 years from the attainment of the age of
illegitimate child or illegitimate children should use the majority. The Family Code was already in effect, but the Civil
surname or is under the parental authority of their mother, Code still applies since Adrian was born in 1981. Now, there
and they are entitled for support in conformity with the FC. was an argument that the Family Code may be given
Because of the passage of RA 9225, illegitimate child may retroactive effect, especially under procedural laws such as
now use the surname of their father but only when under in this case. However, was there already a vested right
the circumstance their affiliation has been expressly in Adrian’s action for compulsory recognition? Yes.
recognized. Adrian’s vested right that would be impaired should
 What are these proofs is establishing affiliation? the Family Code be given retroactive effect is his
1. Record of birth appearing in the local civil register. substantive right to file an action for recognition on
2. Admission made in a public document or a the basis of Art. 285 of the Civil Code which is his main
notarized instrument. source of rights.
3. Proven in a handwritten instrument of the father. Take note that the Supreme Court compared Art. 285 of the
 Once the fact is already established, the illegitimate children Civil Code and Art. 175 of the Family Code. It was
may carry the surname of their father. However, there is emphasized that under the Family Code, the action for
only an option on the part of the illegitimate children to use recognition of an illegitimate child must be brought within
the surname of their father based on Art. 176. the lifetime of the parent. But under the New Civil Code,
despite the death of either parent, the child may still
RA 9255 – AN ACT ALLOWING ILLEGITIMATE CHILDREN file such action, to establish his illegitimate filiation,
TO USE THE SURNAME OF THE FATHER within 4 years from attaining the age of majority.
Therefore, that right has already vested on Adrian and
 RA 9255 discusses a situation where children may have cannot be taken away by the Family Code. This right shall
difficulty for establishing their rights to inheritance or therefore be respect, cancelled or abrogated.
legitims with respect to their father if they DO NOT EMPLOY
the surname of their father that is why this option is DELA ROSA vs. VDA. DE DAMIAN
provided for under Art. 176. In case of the death of that
Here, the university report card from Sto. Tomas was
father, illegitimate children at least have the option.
insufficient to establish proof of filiation. Which requirement
 The father also has a right of his own to institute an action
was not followed in this case? There was no signature of the
to dispute, or to prove the non-filiation of that child with
putative father, which was Guillermo. With respect to proofs
respect to him or the illegitimate filiation of that child. Again,
as regards public documents, records of live birth or private
take note, this action must be filed during his lifetime. As
handwritten instruments signed by the alleged parent are
we discussed before the legitim of the illegitimate child shall sufficient. But in this case, despite the presence of a private
consist of ½ as that of the legitim of the legitimate child. handwritten instrument of the alleged parent, his signature
was not shown in the report card. There was also an issue
FERNANDEZ vs. COURT OF APPEALS involving a notice of death. Will this be sufficient proof to
The pieces of evidence shown were not sufficient to establish filiation? Take note that this was published in a
establish one’s filiation. newspaper. The answer is still no – what was needed was
1. Certificate of Live birth – this is not sufficient the original manuscript of the notice of death in the
because there must be a presence of the name of form of the hand writing of the putative father. Take
the father and it failed to comply with Act. 3793. note that in this case, Art. 172 is applicable and what is
2. Baptismal certificate – there is no showing that required is the signature in cases of private
private respondent participated in the preparations handwritten instrument.
of the baptismal certificate.
3. Photographs – these are far from proof that the VERCELES vs. POSADA
photographs were proofs that he is the father.
May love letters between the putative father and his
lover constitute proof of filiation? What did the Supreme
LABAGALA vs. SANTIAGO Court rule? Yes. These letters are proofs of admission
Respondents may impugn the filiation. Article 263 refers to that lead nowhere but to the conclusion that the
an action to impugn the legitimacy of a child, to assert and Teofisto sired the child. He may have used an alias in his
prove that a person is not a man's child by his wife. However, letters, the similarity of the penmanship and the photograph
the present respondents are asserting not merely that of the petitioner Teofisto, as a youth at the back of the letter
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is unmistakable. The love letters comply with the SSS Form-E as a public instrument is sufficient as
requirement of Art. 172. Obviously, signed love letters proof of filiation. It was also alleged the Siasat was trying
are private hand written instruments – which are to impugn the legitimacy of the child. Can legitimacy be
instruments that are not notarized, unlike public assailed collaterally? No. The provisions of Art. 170 in
documents. Under the law on Succession, take note that relation to Art. 171 are not applicable. This is not an action
the last will and testament here are notarized and to impugn legitimacy, but to establish that Rudolfo is not a
holographic. If a last will and testament is revoked, and yet child of Aguilar at all.
there is an acknowledgement of legitimate or illegitimate
filiation, that last will and testament will still be proof of ARADO vs. ALCORAN
filiation despite it being revoked. The birth certificate was sufficient as proof of filiation. Nicolas
himself had signed the birth certificate and therefore
DELA CRUZ vs. GRACIA complies with Art. 172. The baptismal certificate is
Here, Dominique’s autobiography may be proof of filiation. immaterial and is only proof that Anacleto was baptized. The
In the autobiography, what was indicated is that Jenie is pictures of Anacleto standing next to a coffin does not
Dominique’s wife and that she is pregnant with his child. constitute sufficient proof, as anybody could just
However, Dominique’s autobiography was not signed stand next to a coffin and claim filiation. Finally, the
and yet it was still considered by the Supreme Court. school records were not given any value. Thus, in this case,
Why? Because there were other pieces of evidence the birth certificate was used as the basis for proof of
that accompanied the unsigned autobiography, which filiation. Moreover, this case also illustrates the Iron
included Jenie’s testimony that was corroborated by the Bar rule under Art. 992 of the Civil Code. Raymundo
Affidavit of Acknowledgment of Dominique’s father Domingo married Joaquina. They had Nicolas who then married with
Aquino and testimony of his brother Joseph Butch Aquino Florencia and cohabited with Francesca; from this, Anacleto
whose hereditary rights could be affected by the registration was born. Anacleto is therefore illegitimate for having been
of the questioned recognition of the child. born out of wedlock. Now, when Nicolas died, can his
This case gives rise to special circumstances wherein illegitimate child, by representation, claim the share of the
the Supreme Court laid down two rules: deceased legitimate child (Nicolas) from the estate of
1) Where the private handwritten instrument is the Joaquina? No. Apply the Iron Bar or Iron Curtain Rule. With
lone piece of evidence submitted to prove filiation, respect to the line of inheritance, illegitimate children
there should be strict compliance with the whether by themselves or by representation, cannot
requirement that the same must be signed by the inherit from the legitimate family.
acknowledging parent; and
2) Where the private handwritten instrument is GERONIMO vs. SANTOS
accompanied by other relevant and competent The Supreme Court placed an issue on the part of Karen
evidence, it suffices that the claim of filiation therein Santos and her claim for filiation. There was an allegation on
be shown to have been made and handwritten by the part of Geronimo that if filiation was to be established on
the acknowledging parent as it is merely the part of secondary evidence, then it must be in a direct or
corroborative of such other evidence. separate proceeding. Is that correct? No. Geronimo failed
to recognize that this procedural rule is applicable only
 Atty. Alabstro’s discussion with Atty. Galas: As much to actions where the legitimacy - or illegitimacy - of a
as possible, only apply these rules specific to these sets of child is at issue. This situation does not obtain in the case
facts. Since the Supreme Court made these rules, there is at bar. In the instant case, the filiation of a child is not at
nothing stopping you from applying these rules. Still, as a issue. Geronimo actually does not claim that Karen is not the
general rule, only apply it to the same set of facts, as this legitimate child of his deceased brother Rufino and his wife
case gave rise to special circumstances. Caridad. What Geronimo actually alleges is that Karen is not
the child of the deceased spouses Rufino and Caridad at all.
NEPOMUCENO vs. LOPEZ
What is the defect in the handwritten note, which is a private CALIMAG vs. MACAPAZ
handwritten instrument? Before you look at the formalities, This case concerns the probative value of the Certificate of
look at the contents first. There must be an admission of Live Birth. The Supreme Court observed, in relation to Art.
legitimate or illegitimate filiation. The contents of the 172. Take note that in this case, it seems that both public
handwritten note only pertain to monthly support. The document and the private handwritten note must be signed
mere fact that a handwritten note pertains to support by the putative parent. Is it accurate that even the certificate
does not amount to admission. It does not measure up of live birth must be signed? Was there failure to comply with
to an admission of filiation. Support does not imply Art. 172? Take note that it is incorrect. Art. 172 is
filiation. Filiation must be established first, then support. applicable not because of paragraph 2 but because of
With respect to the Certificate of Live Birth, will this be paragraph 1 – there is no signature requirement.
sufficient? No. It does not bear the signature of Nepomuceno Calimag’s allegation that the certificate of live birth
and therefore has no probative value. You still go back to Art. must be signed by the father has no bearing. The
172. certificate of live birth is being presented not as a public
document that must be signed, but as a record of birth which
AGUILAR vs. SIASAT came from the civil register. So that is Art. 172 (1) in relation
Can Alfredo Aguilar’s SSS Form-E be presented as proof of to the Civil Register Act RA 3753, wherein the certificate
filiation? Yes. Said public document, provided in its contents, of live birth, so long as having been acquired from the civil
establishes filiation in that Rudolfo is the son of Aguilar, who registry, therefore serves as prima facie evidence. So take
was born during wedlock. Apart from SSS Form-E, a signed note which portion of Art. 172 to apply.
certificate of live birth would have also sufficed, but it was
unfortunately destroyed. Did the Supreme Court take this
against Rodolfo? No. Certificate of Live Birth or not, the
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(4th Exam Coverage)
Chapter 4. Legitimated Children (b) One who seeks to adopt the legitimate child of his or her
Filipino spouse; or
Art. 177. Only children conceived and born outside of (c) One who is married to a Filipino citizen and seeks to adopt
wedlock of parents who, at the time of the conception of the jointly with his or her spouse a relative by consanguinity of
former, were not disqualified by any impediment to marry the latter.
each other may be legitimated. (269a) Aliens not included in the foregoing exceptions may adopt
Filipino children in accordance with the rules on inter-country
adoptions as may be provided by law. (28a, E. O. 91 and PD
603)
Art. 178. Legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable
marriage shall not affect the legitimation. (270a)
Art. 185. Husband and wife must jointly adopt, except in the
following cases:
(1) When one spouse seeks to adopt his own illegitimate
Art. 179. Legitimated children shall enjoy the same rights as child; or
legitimate children. (272a) (2) When one spouse seeks to adopt the legitimate child of
the other. (29a, E. O. 91 and PD 603)
Art. 180. The effects of legitimation shall retroact to the time

of the child’s birth. (273a) Art. 186. In case husband and wife jointly adopt or one
spouse adopts the legitimate child of the other, joint parental
authority shall be exercised by the spouses in accordance
with this Code. (29a, E. O. and PD 603)
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants.
(274)
Art. 187. The following may not be adopted:
(1) A person of legal age, unless he or she is a child by nature
of the adopter or his or her spouse, or, prior to the adoption,
Art. 182. Legitimation may be impugned only by those who said person has been consistently considered and treated by
are prejudiced in their rights, within five years from the time the adopter as his or her own child during minority.
their cause of action accrues. (275a) (2) An alien with whose government the Republic of the
Philippines has no diplomatic relations; and
(3) A person who has already been adopted unless such
adoption has been previously revoked or rescinded. (30a, E.
RA 9858 – AN ACT PROVIDING FOR LEGITIMATION OF O. 91 and PD 603)
CHILDREN BORN TO PARENTS BELOW MARRYING AGE
TITLE VII
ADOPTION Art. 188. The written consent of the following to the adoption
shall be necessary:
Art. 183. A person of age and in possession of full civil (1) The person to be adopted, if ten years of age or over,
capacity and legal rights may adopt, provided he is in a (2) The parents by nature of the child, the legal guardian, or
position to support and care for his children, legitimate or the proper government instrumentality;
illegitimate, in keeping with the means of the family. (3) The legitimate and adopted children, ten years of age or
Only minors may be adopted, except in the cases when the over, of the adopting parent or parents;
adoption of a person of majority age is allowed in this Title. (4) The illegitimate children, ten years of age or over, of the
In addition, the adopter must be at least sixteen years older adopting parent, if living with said parent and the latter’s
than the person to be adopted, unless the adopter is the spouse, if any; and
parent by nature of the adopted, or is the spouse of the (5) The spouse, if any, of the person adopting or to be
legitimate parent of the person to be adopted. (27a, E. O. 91 adopted. (31a, E. O. 91 and PD 603)
and PD 603)
Art. 189. Adoption shall have the following effects:

(1) For civil purposes, the adopted shall be deemed to be a
Art. 184. The following persons may not adopt: legitimate child of the adopters and both shall acquire the
(1) The guardian with respect to the ward prior to the reciprocal rights and obligations arising from the relationship
approval of the final accounts rendered upon the termination of parent and child, including the right of the adopted to use
of their guardianship relation; the surname of the adopters;
(2) Any person who has been convicted of a crime involving (2) The parental authority of the parents by nature over the
moral turpitude; adopted shall terminate and be vested in the adopters,
(3) An alien, except: except that if the adopter is the spouse of the parent by
(a) A former Filipino citizen who seeks to adopt a relative by nature of the adopted, parental authority over the adopted
consanguinity; shall be exercised jointly by both spouses; and
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(4th Exam Coverage)
(3) The adopted shall remain an intestate heir of his parents the adopted arising from the relationship of parent and child.
and other blood relatives. (39(1)a, (3)a, PD 603) The adopted shall likewise lose the right to use the surnames
of the adopters and shall resume his surname prior to the
adoption.
The court shall accordingly order the amendment of the
Art. 190. Legal or intestate succession to the estate of the records in the proper registries. (42a, PD 603)
adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and
the surviving spouse of the adopted shall inherit from the
adopted, in accordance with the ordinary rules of legal or TAMARGO vs. COURT OF APPEALS
intestate succession; Take note that a degree of adoption will have
(2) When the parents, legitimate or illegitimate, or the retroactive effect. But it shall not be so if such
legitimate ascendants of the adopted concur with the retroactive effect will not be in the best interest of the
adopter, they shall divide the entire estate, one-half to be child or on the part of the adopting parent. There is legal
inherited by the parents or ascendants and the other half, by fiction of retroactive application which the Domestic Adoption
the adopters; Act provides in its provisions; however, that legal fiction
(3) When the surviving spouse or the illegitimate children of must yield to the reality that it should be in the best interest
the adopted concur with the adopters, they shall divide the of the adopted child because liabilities on torts on the part of
entire estate in equal shares, one-half to be inherited by the minors would befall on their parents or persons having
spouse or the illegitimate children of the adopted and the parental authority over them. Since the tort from the rifle
other half, by the adopters. shooting incident happened during the pendency of the
(4) When the adopters concur with the illegitimate children adoption proceedings, the parental authority on the Spouses
and the surviving spouse of the adopted, they shall divide Rapisura had yet to be established. So retroactivity would
the entire estate in equal shares, one-third to be inherited not be in the best interest on the adopted child. The ones
by the illegitimate children, one-third by the surviving who had parental authority at the time the incident
spouse, and one-third by the adopters; occurred were the biological parents of Edilberto.
(5) When only the adopters survive, they shall inherit the Retroactivity cannot be applicable.
entire estate; and
(6) When only collateral blood relatives of the adopted LAHOM vs. SIBULO
survive, then the ordinary rules of legal or intestate Lahom filed an action to rescind the adoption degree. Lahom
succession shall apply. (39(4)a, PD 603) was arguing that he had already acquired a vested right
because at that time, the Family Code was the governing
law. Is that correct? No. RA 8552 is applicable. Take note
that the Supreme Court held that matters concerning
Art. 191. If the adopted is a minor or otherwise adoption are subject to any other regulation on the
incapacitated, the adoption may be judicially rescinded upon part of the State, which includes the withdrawal on the
petition of any person authorized by the court or proper part of the adopter to nullify the adoption decree.
government instrumental acting on his behalf, on the same Concomitantly, a right of action given by a statute can be
grounds prescribed for loss or suspension of parental taken away at any time before it has been exercised because
authority. If the adopted is at least eighteen years of age, he of the unqualified withdrawal of the right to rescind the
may petition for judicial rescission of the adoption on the adoption degree on the part of the adopter. RA 8552 is
same grounds prescribed for disinheriting an ascendant. clear. The adopters now cannot anymore claim any rights
(40a, PD 603) with respect to the New Civil Code and Family Code that they
may rescind the adoption decree.
LANDINGIN vs. REPUBLIC

Art. 192. The adopters may petition the court for the judicial Take note not to forget the important characteristics of
rescission of the adoption in any of the following cases: support. The obligation to give support is personal on the
(1) If the adopted has committed any act constituting ground part of the adopter, which was one of the contentions of this
for disinheriting a descendant; or case. No matter how much voluntary support can be
(2) When the adopted has abandoned the home of the acquired, there is a legal obligation to give support. These
adopters during minority for at least one year, or, by some adoptees will be treated as legitimate children. The support
other acts, has definitely repudiated the adoption. (41a, PD of the adopter to the adoptee is a personal obligation.
603) It cannot be assigned or taken upon other persons.
Such support is based on the legal relation between
the adopter and the adopted. Failure to prove capability
to provide support may be a basis for the refusal of the
Art. 193. If the adopted minor has not reached the age of issuance of the adoption decree. Obviously, the requisites
majority at the time of the judicial rescission of the adoption, under Section 9 were answered by the Supreme Court.
the court in the same proceeding shall reinstate the parental
authority of the parents by nature, unless the latter are RA 8552, Sec. 9. Whose Consent is Necessary to the
disqualified or incapacitated, in which case the court shall Adoption. - After being properly counseled and informed of
appoint a guardian over the person and property of the his/her right to give or withhold his/her approval of the
minor. If the adopted person is physically or mentally adoption, the written consent of the following to the adoption
handicapped, the court shall appoint in the same proceeding is hereby required:
a guardian over his person or property or both. (a) The adoptee, if ten (10) years of age or over;
Judicial rescission of the adoption shall extinguish all
reciprocal rights and obligations between the adopters and
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(4th Exam Coverage)
(b) The biological parent(s) of the child, if known, or the  NOTE: Pineda says that Art. 190 of the Family Code and
legal guardian, or the proper government some enumerations under Art. 190 are already without
instrumentality which has legal custody of the child; effect because of the passage of the Domestic Adoption Act.
(c) The legitimate and adopted sons/daughters, ten Pineda is of the opinion that paragraph 6 in fact is
(10) years of age or over, of the adopter(s) and repealed by the Domestic Adoption Law. But that is
adoptee, if any; contrary to decided case law. We have Bartolome vs.
(d) The illegitimate sons/daughters, ten (10) years of SSS which applies Art. 190 paragraphs 2 and 6 despite
age or over, of the adopter, if living with said the passage of the Domestic Adoption Act. So take note
adopter and the latter’s souse, if any; of that because these cases will guide you in what provisions
(e) The spouse, if any, of the person adopting or to be were repealed and what were not. In the syllabus of Atty.
adopted. Galas, she indicates that most provisions of the Family Code
on adoption are repealed with the passage of the Domestic
IN RE: PETITION FOR ADOPTION OF MICHELLE AND Adoption Act, except Art. 190 in its entirety.
MICHAEL JUDE LIM
Take note that the law require in case of husband and wife TITLE VIII
that they shall jointly adopt. That means that on the part of SUPPORT
the husband, Olario, it is also necessary that he must also
have the qualifications of a valid adopter. Otherwise, the Art. 194. Support comprises everything indispensable for
decree of adoption will not be issued. Remember that sustenance, dwelling, clothing, medical attendance,
parental authority; though it may be severed upon education and transportation, in keeping with the financial
emancipation, have several consequences such as the capacity of the family.
reciprocal obligation to give support. The education of the person entitled to be supported referred
Also take note that it is important to point out issues arising to in the preceding paragraph shall include his schooling or
from adoption as well as the formality with regard to training for some profession, trade or vocation, even beyond
adoption proceedings – the husband and wife must adopt the age of majority. Transportation shall include expenses in
jointly except for certain exemptions. For example, the going to and from school, or to and from place of work.
husband or the wife will adopt the biological child of his or (290a)
her spouse.
CASTRO vs. GREGORIO

There is a required formality with respect to consent in that Art. 195. Subject to the provisions of the succeeding articles,
it must be written consent. It must be observed; the following are obliged to support each other to the whole
otherwise, the decree of adoption will be placed into extent set forth in the preceding article:
question. (1) The spouses;
Furthermore, in this case, the Supreme Court (2) Legitimate ascendants and descendants;
discussed the badges of extrinsic fraud. These were: (3) Parents and their legitimate children and the legitimate
First, the petition for adoption was filed in a place that had and illegitimate children of the latter;
no relation to any of the parties. (4) Parents and their illegitimate children and the legitimate
Second, using the process of delayed registration, Jose was and illegitimate children of the latter; and
able to secure birth certificates for Jed and Regina showing (5) Legitimate brothers and sisters, whether of full or half-
him to be the father and Larry as merely the informant. blood (291a)
Worse still is that two different sets of fraudulent certificates
were procured: one showing that Jose and Lilibeth were
married on December 4, 1986 in Manila, and another wherein
the portion for the mother's name was not filled in at all. Art. 196. Brothers and sisters not legitimately related,
Third, Jose blatantly lied to the trial court when he declared whether of the full or half-blood, are likewise bound to
that his motivation for adoption was because him and his support each other to the full extent set forth in Article 194,
wife, Rosario, were childless, to the prejudice of their except only when the need for support of the brother or
daughter, Joanne. The consent of Rosario to the adoption sister, being of age, is due to a cause imputable to the
was also disputed by Rosario and alleged to be fraudulent. claimant’s fault or negligence. (291a)
BARTOLOME vs. SSS

In this case, the Supreme Court applied the rule that the
reversion on parental authority in favor of the biological Art. 197. In case of legitimate ascendants; descendants,
parents is not a novel concept. In fact, Sec. 20 of the whether legitimate or illegitimate; and brothers and sisters,
Domestic Adoption Act, on the effects of rescission of whether legitimately or illegitimately related, only the
adoption is applicable by analogy in order to restore the separate property of the person obliged to give support shall
custody of the minor child. That is why the law requires, be answerable provided that in case the obligor has no
by analogy, that it is as if the adoption decree was already separate property, the absolute community or the conjugal
without effect because of the death of the adopting parents, partnership, if financially capable, shall advance the support,
and so parental authority reverts or goes back to the which shall be deducted from the share of the spouse obliged
biological parents. Are there requirements for this upon the liquidation of the absolute community or of the
reversion to take place? None. Reversion is by conjugal partnership. (n)
operation of law. Remember that it must be in the best
interest of the adopted child. That is always the overarching
principle and underlying principle you have to remember with
respect to the adoption law. Art. 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of
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(4th Exam Coverage)
marriage, the spouses and their children shall be supported paid except from the date of judicial or extrajudicial
from the properties of the absolute community or the demand.
conjugal partnership. After the final judgment granting the  It is not immediately demandable, while it is demandable
petition, the obligation of mutual support between the from the time the person has the right to receive it, need it
spouses ceases. However, in case of legal separation, the for the maintenance, sustenance and etc., take note: it is
court may order that the guilty spouse shall give support to not immediately demandable.
the innocent one, specifying the terms of such order. (292a)  It is reckoned from the date of judicial or extrajudicial
demand.
 To support pendente lite, this is support pending litigation.
In disputes involving the validity of marriage, in disputes
Art. 199. Whenever two or more persons are obliged to give involving support, while there is a pendency happening
support, the liability shall devolve upon the following persons before the court. Support may be asked of.
in the order herein provided:  Payment shall be made with the first five days of each
(1) The spouse; corresponding month, but when there is a ** time, his heir
(2) The descendants in the nearest degree; shall not be obliged to return what he has received in
(3) The ascendants in the nearest degree; and advance.
(4) The brothers and sisters. (294a)  This amount excess given for support cannot be demanded
in return, if it excess in the amount for support because it
pertains in the amount of nature or natural obligation,
because of that any amount given in excess or that which
Art. 200. When the obligation to give support falls upon two the obligor or one who gives support, if it is latest to the
or more persons, the payment of the same shall be divided amount of support already gave in advance, take note:
between them in proportion to the resources of each. there is no obligations to return on the part of the heirs. But
However, in case of urgent need and by special just in case where the recipient dies.
circumstances, the judge may order only one of them to
furnish the support provisionally, without prejudice to his Art. 204. The person obliged to give support shall have the
right to claim from the other obligors the share due from option to fulfill the obligation either by paying the allowance
them. fixed, or by receiving and maintaining in the family dwelling
When two or more recipients at the same time claim support the person who has a right to receive support. The latter
from one and the same person legally obliged to give it, alternative cannot be availed of in case there is a moral or
should the latter not have sufficient means to satisfy all legal obstacle thereto. (299a)
claims, the order established in the preceding article shall be
followed, unless the concurrent obligees should be the  Do not think that, support is just about money or complying
spouse and a child subject to parental authority, in which the monetary obligation, the alternative way of giving
case the child shall be preferred. (295a) obligation by receiving person was the right to give support
in the family dwelling.
 The alternative cannot be avail of in case of there is moral
or legal settle thereto.
Art. 201. The amount of support, in the cases referred to in  In cases of physical violence, repeated physical abuse, it
Articles 195 and 196, shall be in proportion to the resources cannot be allowed that the parents of user or will take in the
or means of the giver and to the necessities of the recipient. family dwelling of the child because that is ** to the best
(296a) interest of the child.
Art. 205. The right to receive support under this Title as well
as any money or property obtained as such support shall not
Art. 202. Support in the cases referred to in the preceding be levied upon on attachment or execution. (302a)
article shall be reduced or increased proportionately,
according to the reduction or increase of the necessities of  Just like the Family Home it is exempt from execution,
the recipient and the resources or means of the person forced sale or attachment.
obliged to furnish the same. (297a)  INSTANCE: What if the putative father is obliged to give
support in favor of the illegitimate child but at the same time
the putative father already has a creditor. Now the creditor
filed a case. The creditor will now satisfy the judgment in
Art. 203. The obligation to give support shall be demandable the creditors favor against the putative father. Now, the
from the time the person who has a right to receive the same putative father and his property, the creditor wanted to get
needs it for maintenance, but it shall not be paid except from the payment of the debt. The money that will be paid for by
the date of judicial or extra-judicial demand. the putative father should be given to the children, however,
Support pendente lite may be claimed in accordance with the the putative father used the money to pay his debts.
Rules of Court. Question: Is that allowed?
Payment shall be made within the first five days of each Answer: NO. That may not be executed upon the judgment
corresponding month or when the recipient dies, his heirs and that may not be attached in satisfaction of a judgment.
shall not be obliged to return what he has received in That is exempt from execution, forced sale or attachment.
advance. (298a)
Art. 206. When, without the knowledge of the person obliged
 The obligations to give support under Art. 203 is to give support, it is given by a stranger, the latter shall have
demandable from the time that the person has the right to a right to claim the same from the former, unless it appears
receive the same need it for maintenance, but it shall not be that he gave it without intention of being reimbursed.
(2164a)
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(4th Exam Coverage)
 The exempt amount beyond that required for legal support,
 Art. 206 When without the knowledge of the person obliged subject to levy or on attachment or execution.
to give support, is given by a stranger. Take note: That  EXAMPLE: Godmother or godfather vouch to give support
stranger shall have a right to claim from the person obliged in favor to their godchildren because the parents do not
to give support. Unless, it appears that it was given without have means of giving financial support for their own
the intention of reimbursement, that is a form of donation children. The godmother and godfather gather all the means
or gratuitously given. to support their godchildren. If the godmother or godfather
 THE REASON why there is a right to be reimburse on the have estafa case, they cannot run from their responsibility
part of the stranger is because supports springs from and obligation to their debtor just because they give
filiation because of family relation, naturally the law imposes support.
on those who are members of the family to give support, as  Any amount excess to the legal support that is going to the
be ascendants, descendants and etc. Naturally, a stranger children, that may be subject to levy, attachment or
does not have legal obligation to give support, such that the execution.
stranger satisfies the legal obligation in lieu of other person.  It is same with family, anything excess provided for by law,
Naturally, in favor of a stranger there is a right to be take note: that may be the subject of levy on attachment
reimburse, unless the stranger gratuitously wants to give as or execution but unlike the family home, support does not
a form of a gift or the stranger waive any action on his or prescribe an amount as a minimum. Why? Because one of
her part to be reimburse from the obligor. the characteristics to support is not only by means of the
recipient but also on the capacity of obligor or the one
Art. 207. When the person obliged to support another obliged to give support.
unjustly refuses or fails to give support when urgently  Further, contractual support is subject to adjustment,
needed by the latter, any third person may furnish support whenever modification is necessary due to the changes in
to the needy individual, with right of reimbursement from the circumstances manifested the contemplation of the party.
person obliged to give support. This Article shall particularly  INSTANCE: What if one time, the person who contractually
apply when the father or mother of a child under the age of promise to give support. Let us say that person has a
majority unjustly refuses to support or fails to give support blooming business, and then subsequently the business
to the child when urgently needed. (2166a) went miserable. They promised that every month, they will
give 10 thousand pesos each. However, the business went
 Art. 207 When the person obliged to give support to another miserable and closed.
and unjustly refuses or fails to give support, when urgency Question: Are those persons obliged under the law to give
needed by the latter. Take note: Art. 207 live different or the amount which is specified in the contract or that which
it is unique as a provision because there is an urgency they have promised before.
necessity to give support. Answer: No, it may be modified depending on the changes
 Any third person, may furnish support to any individual with or circumstances of the party, which have renderly
the right to reimbursement from the person oblige to give manifested with contemplation of the parties to provide
support.  EXAMPLE: The godmother or godfather business went
 This article will apply particularly to the father or mother of miserable, then the income comes from their business is 5
the child at the age of majority, unjustly refuses to support thousand from 5 million. It is not allowed that they will be
or fail to give support to the child when urgency needed. consider as obligor, as to the 10 thousand for support. This
 You already know that, with respect to the age of majority, can be changed, and that may be changed accordingly in a
because even as to them, if let us say they were proper judicial proceeding.
impregnated by 17 or 16 years old the person who are
obliged to give them support are their parents because they DE ASIS vs. COURT OF APPEALS
themselves do not have virtually means of giving support to The Supreme Court said, that when Vercel agree with De Asis
their children, with the right to be reimburse. that since there was no virtual means for De Asis to give
 If those parents who are under the age of majority either support, Vercel already settle for whatever amount may be
refuse or fails to give such support. given, and subsequently withdraw the complaint for support.
That is not allowed because that withdrawal of support
Art. 208. In case of contractual support or that given by will, upon the agreement of Vercel and De Asis, part takes the
the excess in amount beyond that required for legal support nature of the compromise. What was compromise or
shall be subject to levy on attachment or execution. renounced was the right of the child to be given support
Furthermore, contractual support shall be subject to specifically the right of Glen to be given support.
adjustment whenever modification is necessary due to Take note: One of the important features of the right to
changes of circumstances manifestly beyond the support is that, this may not be subject of stipulations or
contemplation of the parties. (n) compromise between the parties.
More importantly the right to be given support or the right to
 This part takes the nature of contractual support. future support may not be renounce, it may not be waived,
 Support has different characteristics, could either be legal it may not be terminated as the agreement of the parties.
support that which we discuss in the case of Patricio vs. Take note of this because on renunciation that is a particular
Dario III, meaning there is a legal obligation, the law itself mode, one of the modes to extinguish an obligation but take
imposes the obligation to give support; it could also be note, when the renunciation is not allowed by law or
voluntary support, part takes the nature of contractual prescribe or prohibited by law, then it is as is there is no
support; or it could also be judicial support, by way of obligation that was extinguished. The right for future support
order of the court, like support pendente lite that may be cannot be renounce.
ruled on the court itself. More importantly, according to the Supreme Court, the
 Art. 208 pertains to voluntary support, it refers to matter involving paternity filiation may not partake
contractual support or that which arises from out of the nature of a judicial admission because under Art.
contractual obligation, or those which are created by will.
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2025, the status of person cannot be subject of sisters. All other collateral relatives are not necessarily
compromise. included.
It is not up to De Asis to determine that Glen is his
illegitimate child, it must be subject to proof, and that proof LIM vs. LIM
must be course to judicial proceeding. It is not allowed to Art. 204 does not only discuss about the moral obstacle but
read upon a contract or a compromise agreement. also legal obstacle, in taking the one ought to receive support
What may not be compromise is not absolute the right to under the family dwelling.
support but future support or the right to future support. In this case, Cheryl cannot return to the house because it is
the seeing of her husband’s own infidelity.
GAN vs. REYES But what if this was the case for legal separation.
This talks about the nature of support as immediately INSTANCE: Let us say that, Cheryl is legally separated from
executory. In support it is different from the general rule the husband – that is a legal obstacle. If Cheryl would be
provided in the civil procedure. invited to be maintained in the family dwelling because
The Supreme Court held in this case, that judgement or obviously, they are already separated-in-fact from the
decisions in action for support are immediately executory, husband; and more importantly, the custody of the children
meaning despite the pendency of the appeal, take note: have been already adjudicated in the legal separation
that the judgment with respect to actions for support are proceedings. That is the legal obstacle there.
immediately executory, meaning they can be acted upon. In
the meantime, the sheriff or court personnel, they already  RA 9262 or Violence Against Women and Children Act. –
act on the judgment. there is one relief there that can be availed of, that is what
The important thing you have to remember, is the concept you called of Permanent Protection Order.
that support or judgment in favor of actions for support, they  In case of those who are battered wives, or those children
will not be told by the pendency of an action, they are who are physically abused in the family, the parent who
immediately executory, so you can act on them right away have custody over that child or other persons who may have
despite the pendency of the case. de facto custody of the children, may petition for a
permanent protection order. It partakes the nature of the
CIVIL PROCEDURE: TPO or temporary protection order, (TPO means, in a
 From the time the filing of the complaint, the defendant will particular radius you are not allowed to approach people
file an answer of the complaint. If the defendant cannot or because that would violate). That is the same concept with
do not answer, the effect will be declared in default. permanent protection order.
 Just like in cases of marriages, in assailing the validity of
marriage there can be no default of judgment, it will always DOLINA vs. VALLECERA
proceed upon the determination of fiscal and etc., This case will remind you: In actions for support, just
 After that in default, the trial will be pursued, there will be because there are allegation that this child is yours or
presentation of evidence to support the allegations of the this is your illegitimate child, it is not AUTOMATIC.
complaint because there is no already standing on the part Especially when the admission is not admitted in the primary
of the defendant because that person, the defendant, has proof.
already been in default. If there is a dispute with respect to the recognition, with
 When the judgment has already been rendered, from the respect to primary proofs that may be the basis of
rendition of the judgment you can make an appeal. compulsory recognition, but it must be filed in action
 During at the time that there is an appeal of that case, the in court for that purpose. – Meaning the purpose for that
judgment has not yet attained its finality, it is not final or action is for the compulsory recognition of the illegitimate
executory as a rule. child and as for support.
These matters: the filiation, the right to be given support,
MANGONON vs. CA these may not be established in a proceeding which is
PRINCIPLE: The nearer excludes further. – this means that summary relief or an ancillary relief which involves VAWC or
the closer related, the law expects or imposes a stronger the temporary protection order.
obligation on them to give support because they are more According to the Supreme Court, the true objective on the
closely related with the person or the recipient, the person part of Cheryl was actually to get a financial support from
who ought to receive support. Glen for Cheryl’s child. Her being claim, Glen was the father.
In default thereof – meaning in the absence or in case of Of course, because of Glen’s denial, obviously that cannot
incapability on the part of those more closely related, those make thresh out of the proceeding only for the temporary
who are more or further related, may be obliged to give protection order, it must be based on compulsory
support. Upon showing that those closely related are recognition.
incapable of giving so.
In this case, Federico was sufficiently showed that, since he LIM-LUA vs. LUA
was nearer degree to the twins, obviously Federico is the This case will give you the characteristics of support, that it
father. must be compatible with the needs of the recipient. It
The question now is, whether Federico has the capability to is not just base on the capability of the obligor or the
give support to the twins. one who oblige to give support, but it must also be
It was shown that there was none, that is why the rule that based on the needs of the recipient.
the closer or further, you will now go up who are obliged to This case teaches us that with respect to support pendente
give support: the spouse, descendant, and ascendant. Who lite, it must be compatible with the need of the recipients.
are more relatedly ascendant? From the father you go up, or Not just any other form of support or any other material gain
to the grandparents. In this case, it was Federico’s own that parent may give in favor of the children.
father. Federico may be obliged to give support.
Take note: The only collateral relative is that who may be BBB vs. AAA
obliged to give support under the law are brothers and
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As held in the case of Patricio vs. Dario III, one of the to be observed to carry out as parents with respect to
important characteristics on support is that, it is always liabilities that might incur.
variable; never fixed.
In this case, it will be based on the resources of the parents Art. 210. Parental authority and responsibility may not be
or the putative father, and more importantly it is a mutual renounced or transferred except in the cases authorized by
response of the spouses in relation to the children. While, law. (313a)
this may be reduced or divided proportionately, definitely,
what will be bore in mind is: the best interest of the  Question: What are the cases that the law authorizes the
children. transfer of parental authority and responsibility? (Exception)
In this case, the permanent protection order according to the 1. Adoption. If you through an adoption proceeding in
Supreme Court, the issues there involving custody and etc. the parental authority and responsibility respect to
there also have to be thresh out. the biological parents, major relinquish: it may be
transferred in favor of the adopting parent. But,
PENSION and GRATUITY CENTER vs. AAA technically speaking, that is not part of
RA 9262 forms an or gives legally an exception to the general renunciation, but that is adoption proceeding.
rule, that these retirement benefits that are to be distributed 2. Parents, who have substitute parental authority. In
by PGMC are exempt from execution. Specifically, the law default of the biological parents, or in default
declared that the law shall order the withholding of the those who primarily exercise parental
percentage or the salary of the putative father or the one authority, there are persons impose under the
who oblige to give support by the employer, which shall be law, upon whom substitute of parental authority
automatically be remitted directly to the mother. may best on them
Notwithstanding, with other laws to the contrary.
The REASON behind this because it used to be that (up until Art. 211. The father and the mother shall jointly exercise
now), those who come from armed forces or those from parental authority over the persons of their common
military, it has been a problem before that soldiers and those children. In case of disagreement, the father’s decision shall
who are in the armed forces, refuse to give support their prevail, unless there is a judicial order to the contrary.
children or to their illegitimate children and even to the wives Children shall always observe respect and reverence towards
because they contract a lot of different marriages. The their parents and are obliged to obey them as long as the
reason being is that, they just really have a lot. That is children are under parental authority. (311a)
why, because of the utter difficulty in tracing, especially
there are soldier (means they can be dead any time).  This article pertains to COMMON CHILDREN, and not just
The law allows an accommodation with respect to the any other child.
issue on support. The law allows is that, a portion of the  The relief that the mother may seek in court, if the mother
salary or the retirement benefits or the pension or the wants to have sole custody over the child is through this
gratuities will be given in favor of these soldiers, will be judicial order. Still, subject to exemption.
allotted, it will be set aside, and it will be given to the mother.
To ensure that it will be for the benefit of the children. Art. 212. In case of absence or death of either parent, the
Basically, that is one of the totalities on the obligations to parent present shall continue exercising parental authority.
give support may be suffice or it may be complied with. If The remarriage of the surviving parent shall not affect the
not voluntarily, then through the force of law. parental authority over the children, unless the court
In this case, the amount that will be set aside for support, it appoints another person to be the guardian of the person or
may be allocated through these separate agencies, such as property of the children. (n)
the pensions and gratuity center.
 Remarriage of the surviving parent does not affect in any
TITLE IX way parental authority of the children. Unless the court
PARENTAL AUTHORITY appoint as the JUDICIAL GUARDIAN over the child,
Chapter 1. General Provisions because it is possible that: If the child lives in the conjugal
dwelling of or with the new family of the surviving parent, it
Art. 209. Pursuant to the natural right and duty of parents may be inimical to the interest of the child. Since it is against
over the person and property of their unemancipated to the inimical interest of the child, it is always the best
children, parental authority and responsibility shall include interest of child which shall be the paramount consideration
the caring for and rearing them for civic consciousness and
efficiency and the development of their moral, mental and Art. 213. In case of separation of the parents, parental
physical character and well-being. (n) authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
 PARENTAL AUTHORTIY – exudes from not only a legal considerations, especially the choice of the child over seven
right or duty, but a natural right of parents over the persons years of age, unless the parent chosen is unfit. (n)
and property of the unemancipated children.
 The basis of this, is the paternal ties between the parents  This separation of parents pertains to LEGAL
and the children; and how the parents are expected under SEPARATION, and not a mere separation in fact.
the law, to exercise parental authority and parental custody  Take note: No child under seven years of age shall be
over their children. separated from the mother.
 Do not fix the typical motion of parental authority is mere  Exception: Unless the court finds a compelling reason to
custody of the children. It is not the children’s custody is the order otherwise.
issue in the parental authority.  DEFAULT MATRIMONIAL CUSTODIAL REGIME or
 Parental authority covers the right over custody to the TENDER YEARS PRESUMPTION
children, but at the same time it confers the duty that has  The child under seven years of age, take into legal
presumption, subject to proof to the contrary; that it is the
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mother who can best take care of the child. That is why, persons, who under the law, who are allowed under the law
logically, no child below seven years of age ought to be to exercise substitute parental authority.
separated from the mother, unless the court finds
compelling reasons to order otherwise. Art. 216. In default of parents or a judicially appointed
 In the same way, if the child is over seven years of age, the guardian, the following person shall exercise substitute
child may choose the parents, unless the chosen parent is parental authority over the child in the order indicated:
unfit. (1) The surviving grandparent, as provided in Art. 214;
 Question: What are the compelling reasons? How we will (2) The oldest brother or sister, over twenty-one years of
know the fitness of the parent chosen? (It will be discuss in age, unless unfit or disqualified; and
the cases) (3) The child’s actual custodian, over twenty-one years of
age, unless unfit or disqualified.
Art. 214. In case of death, absence or unsuitability of the Whenever the appointment or a judicial guardian over the
parents, substitute parental authority shall be exercised by property of the child becomes necessary, the same order of
the surviving grandparent. In case several survive, the one preference shall be observed. (349a, 351a, 354a)
designated by the court, taking into account the same
consideration mentioned in the preceding article, shall  The enumeration is exclusive. Anyone not mentioned in
exercise the authority. (355a) the Article is excluded. The inclusion of grandparents and
older brother and sister is in conformity with customs in the
 Question: Who shall exercise the substitute parental Philippines.
authority?  Guardian over Property
 Under Art. 214, this substitute parental authority shall be o The court shall make appointment in accordance
exercise by the SURVIVING GRANDPARENT. with the order of preference abovementioned, if
 Take note: This happens in case of death, absence or there is a necessity of appointing a judicial
unsuitability of the BOTH PARENTS. If it is only one, then guardian over the property of the child. The
the present parent or the surviving spouse will have the appointed guardian cannot delegate his duties to a
parental authority. stranger. He has a duty to take care and to attend
 In case several survive, the RULE: it is the one designated personally the management of the properties of his
by the court, who shall have or who shall exercise substitute ward and to safeguard the funds and properties of
parental authority. said ward under his control. Guardianship ceases
 All relevant consideration which are the best interest of the when the ward reaches the age of majority or when
child. his incapacity has ceased.
 With respect to guardianship proceeding, especially
Art. 215. No descendant shall be compelled, in a criminal involving administration of the property of the wife or
case, to testify against his parents and grandparents, except administration of the property of the minor child, take note
when such testimony is indispensable in a crime against the that the same order of preference is observed under Article
descendant or by one parent against the other. (315a) 216. TAKE NOTE that is an order of preference. There are
persons because of their family relations who are preferred
 FILIAL PRIVILEGE RULE, which is actually the rule of with respect to the child,that they ought to exercise parental
evidence and it is a remedial law rule. authority. First, with respect to the surviving grandparent.
 The REASON behind is that, descendants may not be Remember: In the case of death, absence or unsuitability
compelled to testify against their parents or grandparents, of both parents under Article 214, substitute parental
it is because it is against the harmony of the family. authority may be exercised by the surviving grandparent,
 The following instances situations where the filial privilege But, in case of the surviving grandparent as between them,
rule is not applicable: the one is preferred. So, it's not automatic that the surviving
1. If the descendant voluntarily testified. grandparent of the paternal line or is it automatic that the
2. If the testimony in favor of the parents or surviving grandparent of the paternal line.
grandparents.  TAKE NOTE: in relation to ARTICLE 214, it shall be the
3. If the descendant is compelled to testify against his grandparent who is designated by the court. Take into
or her grandparent but in a civil case or in cases account the same considerations as mentioned under ART
other than criminal case. 213; all relevant considerations which are for the best
 Question: Are there instances where a descendant may be interest of the child. The collateral relative who may exercise
compelled to testify in the criminal case against his or her substitute parental authority is the oldest brother or sister
parents? (sibling). But take on note on the requirement, similar to the
 There are exceptions: Filial rule will not apply. child's action custodian; they must be over 21 years of age.
1. When the testimony of that descendant is Also, take note on the exception, unless they are unfit or
indispensable in a crime against the descendant disqualified.
himself.  Question: What if in a particular scenario, the parents are
2. When the testimony of such descendant is absent and there are no persons who are qualified to
indispensable in a crime committed by one parent exercise substitute parental authority, what is the remedy?
against the other. to whom shall parental authority be exercised or be vested
by law?
Chapter 2. Substitute and Special Parental Authority  Answer: In that case, there is a necessity a judicially
appointed guardian. So, that is what we called guardian ad
 Substitute and special parental authority, this chapter in this litem in case that there is pending litigation or just a
title of the Family Code discusses instances where in default judicially appointed guardian.
or in the absence of biological parents, those persons
charged with primary parental authority, there may be Art. 217. In case of foundlings, abandoned neglected or
abused children and other children similarly situated,
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parental authority shall be entrusted in summary judicial Art. 218. The school, its administrators and teachers, or the
proceedings to heads of children’s homes, orphanages and individual, entity or institution engaged in child are shall have
similar institutions duly accredited by the proper government special parental authority and responsibility over the minor
agency. (314a) child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized
 Foundlings – an infant found by others abandoned or activities whether inside or outside the premises of the
exposed, without a known parent or person having custody school, entity or institution. (349a)
or charge of it.
 Abandoned child – one who has no proper parental care Substitute Parental Special Parental
or guardianship, or whose parents or guardians have Authority Authority
deserted him for a period of at least six continuous months.
 Neglected child – one whose basic needs have been  It is different because it  May concur or is
deliberately unattended or inadequately attended; Neglect can never be concurrent concurrent with parental
may either be physical or emotional. with primary parental authority of the biological
 Abused child – one subjected to sexual abuse or authority. The phrase parents, there may be
maltreatment by his parents or other persons primary parental biological parents to
 Protection of Disadvantaged Children authority, that is just exercise parental
o The entities mentioned above are better equipped terming it loosely, not a authority but at the same
with provisions for manpower, training and technical term. time during the time that
financers for the proper physical, mental and moral  May come only in they are at school,
development of such children. The proceedings for default of the biological children may also have
the entrustment of parental authority shall be parents or in default of special parental authority
summary, that is, to be decided expeditiously judicially appointed exercised by schools,
without regard to technical rules. guardian, so it's never administrators, teachers
concurrent. and similar individuals.
Effect of RA 9523; Foundling Certificate  There is no such  Pertains to the parental
 The process of declaring abandoned, neglected and limitation mentioned in authority of the biological
surrendered child as legally available for adoption has been Special Parental parents or appointed
transferred from the courts to the Department of Social Authority. guardians.
Welfare and Development (DSWD).  Limited in that the
 After the DSWD has issued a certificate that the child is authority and
available for adoption, the local civil registrar will issue a responsibility to exercise
foundling certificate which should be transmitted within special parental authority,
seven (7) working days to the NSO. shall apply to all
 The foundling certificate serves as the certificate of birth of authorized activities of
the foundling except that it lacks details as to the those schools, or those
circumstances of birth. institutions engaged in
 The process of adoption has been simplified a bit. Parties child care, whether inside
concerned need not to go to court anymore for the or outside the premises of
declaration of the aforementioned children as available for school.
adoption.
Art. 219. Those given the authority and responsibility under
NOTES: the preceding Article shall be principally and solidarily liable
 Talks about foundlings, abandoned, neglected or abused for damages caused by the acts or omissions of the
children and other children who are similarly situated. unemancipated minor. The parents, judicial guardians or the
 Question: To whom shall the parental authority be persons exercising substitute parental authority over said
entrusted? minor shall be subsidiarily liable.
Answer: Take note, that in summary judicial proceedings, The respective liabilities of those referred to in the preceding
the parental authority of these children shall be entrusted to paragraph shall not apply if it is proved that they exercised
the heads of children's home, orphanages and similar the proper diligence required under the particular
institutions duly accredited by the proper government circumstances.
agency. All other cases not covered by this and the preceding articles
 In the determination of who may be or who may exercise shall be governed by the provisions of the Civil Code on
parental authority in this respect with regard to these quasi-delicts. (n)
children, it shall be the heads of children's homes or similar
institutions. The Philippines has also Foster care act but not  Concept of Solidary and Subsidiary Liabilities
strictly observed, in that instance, assigned to children's o In solidary liability, all the concerned obligors
homes or orphanages and similar institutions, there may be simultaneously or any one of them can be made
parents who are qualified to be foster parents and they may liable for the entire obligation. In subsidiary
exercise parental authority. But being a foster parent will liability, it is only when the principal obligor is
not automatically mean that you have adopted a child. It is insolvent, that the other is made liable.
merely the custody of the child or the exercise of parental  Defenses
authority that is vested upon the foster parent. o The defense which can be invoked to avoid solidary
 It is applicable to minor children. This is applicable in or subsidiary liability is the exercise of proper
instances where over the minor child, there is a necessity diligence required under the particular
under the law to presume that someone must have had circumstances which could either be ordinary
parental authority. diligence or extraordinary diligence depending
upon the attendant circumstances.
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 Civil Code Suppletory  ILLUSTRATION: Persons who exercise special parental
o The provisions of the Civil Code on quasi-delicts authority, PROBLEM: What if the school or administration
(Articles 2176-2194) shall be applied qin all other is held liable and they are insolvent because the school is
cases not covered by Articles 217, 218 and 219. already closing due to bankruptcy, and then thereafter,
Thus, if a student of legal age commits a quasi- since they are insolvent and they cannot pay off the liability
delict, when still within the supervisory custody of amounting to 5 million, a child became blind due to accident,
his teacher, will make the latter solidarily liable let's say that the parent of that child will now be held
with him under Article 218 (FC), which applie sonly subsidiary liable, can the parent of the child interpose the
when the pupils or students are still minors. defense of diligence of a good father of the family in order
 NOTES: Under this provision are liabilities that may be to evade liability? NO, because that pertains to subsidiary
incurred on account of special parental authority. liability.
 This is in relation to 2180 of Civil Code, under the chapter  So, in default of those principally liable, the ones who are
of quasi-delicts. This concept is what we call vicarious subsidiary liable will be liable for the amount of damages or
liability. Under this principle, there are instances under the obligation to pay for quasi-delict. Take note, this is a proper
law where not only the tortfeasor himself will be liable for defense for principally liable (schools, institutions, etc.)
the quasi-delict or tort but also other persons and the  All other cases not covered by the provision shall be
liability of other person are vicarious, it means it is principal governed by the provisions of the new civil code of quasi-
and solidary. delicts. So, quasi-delicts are defined under Article 2176 and
 Principal means it is primary, automatically those persons the concept should be taken up with vicarious liability under
concurrently without liable for damages and for whatever 2180.
acts that the tortfeasor may do. Naturally, in this case, the
tortfeasor is the minor child. Chapter 3. Effect of Parental Authority Upon the Persons
 ILLUSTRATION: In case students hurt each other, parents of the Children
of the victim children will complain; then the tortfeasor will
be liable.  The issue here is the exercise of parental authority over the
 Minority on the part of the tortfeasor is immaterial because persons of children, that they have different set of rules if
we are talking about liability for quasi-delicts or damages. the parental authority is with respect to the property of the
But, take note that those parents who exercise special child or properties of the children. First issue is where
parental authority shall principally and solidarily liable. looking at instances where parental authority is exercised
 Solidary Liability means that the liability of one is the over the person or personhood of the child.
liability of all. It is not necessary that the other will be
pursued against as to anyone of them, they may be become Art. 220. The parents and those exercising parental authority
liable for the entirety of the obligation which is the liability shall have with the respect to their unemancipated children
for damages caused by the acts or omissions of the on wards the following rights and duties:
tortfeasor. In this case, the unemancipated minors. (1) To keep them in their company, to support, educate and
 Question: So, what is the liability with respect to parents? instruct them by right precept and good example, and to
Answer: Parents are also vicariously liable, but their liability provide for their upbringing in keeping with their means;
is in different provision under ART 2180. But, what if these (2) To give them love and affection, advice and counsel,
institutions (schools, similar institutions), what if they are companionship and understanding;
insolvent? what if they disclaim any liability or whatsoever (3) To provide them with moral and spiritual guidance,
even if it was proved that they are sole liable for the inculcate in them honesty, integrity, self-discipline, self-
negligence of unemancipated minor. reliance, industry and thrift, stimulate their interest in civic
 TAKE NOTE: parents, judicial guardians and persons affairs, and inspire in them compliance with the duties of
exercising substitute parental authority, are subsidiary citizenship;
liable. Since, one who has principal liability are those who (4) To furnish them with good and wholesome educational
exercise special parental authority, in case of insolvency or materials, supervise their activities, recreation and
they become incapacitated to pay off the liability for association with others, protect them from bad company,
damages the ones who will be liable thereafter will be the and prevent them from acquiring habits detrimental to their
parents, judicial guardians etc. health, studies and morals;
 The respective liabilities of those referred to shall not apply (5) To represent them in all matters affecting their interests;
if it is prove that they exercised the proper diligence (6) To demand from them respect and obedience;
required under the particular circumstances. As a defense (7) To impose discipline on them as may be required under
with respect to negligence cases, the heart of liability for the circumstances; and
quasi-delict is negligence. If the negligence is the proximate (8) To perform such other duties as are imposed by law upon
cause for the damages or injury that was incurred, parents and guardians. (316a)
therefore, an obligation arises on account of quasi-delict.
The usual defense, since negligence must have been the  This provision enumerates the rights and duties of parents
proximate cause, usually the defense is, negligence was not and those who exercise parental authority with respect to
the proximate cause, so some other factor was involved or the unemancipated children, or ward with respect to the
it could also be those with charged of parental authority guardian.
exercise due diligence or diligence of a good father of a  Negligence to Educate; Indifference of Parents
family in taking sure or making sure that the children are o Parents who neglect their children by not giving
playing well or there are no danger which posed to the life, them the education which the family’s financial
welfare and safety of these unemancipated minors; so, conditions permit are criminally liable for “neglect
that's the usual defense. of child” under Article 59 of P.D. 603.
 These respective liabilities will not apply if that so happens,
but the one who is principally or solidarily liable must Art. 221. Parents and other persons exercising parental
interpose this as a defense. authority shall be civilly liable for the injuries and damages
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caused by the acts or omissions of their unemancipated  ILLUSTRATION: A child was allegedly seen throwing rocks
children living in their company and under their parental to the neighbourhood that caused damage to some person
authority subject to the appropriate defenses provided by or property - you can always interpose the defense that you
law. (2180(2)a and (4)a) exercise due diligence in making sure that the child do not
harm others.
 Civil Liability for Injuries and damages Caused by
Unemancipated Children Art. 222. The courts may appoint a guardian of the child’s
 This article does not apply to emancipated children because property or guardian ad litem when the best interests of the
they are already qualified and responsible for all acts of civil child so require. (317)
life subject to certain exceptions, (ART 236, FC). It applies
only to unemancipated children living in the company and  Appointment of Guardian
under the parental authority of their parents or other  Even though the child’s parents are living, the courts may
persons exercising parental authority over them. still appoint a guardian over the child’s property or guardian
 Liability of parents for quasi-delicts and felonies committed ad litem (pending litigation) when the best interest of the
by their minor children is direct and primary and not said child so require.
subsidiary. Potential adopters are not liable for the tortious  Parental Authority During Trial Custody in Adoption
acts of the child until they shall have actual custody over the Cases
said child.  Parental Authority is provisionally vested with the adopting
 NOTES: CIVIL LIABILITIES OF PARENTS parents during the period of the trial custody of a child
 If those who exercise special parental authority have subject of an adoption proceeding.
vicarious liability, under article 219, take note that parents  NOTES: CONCEPT OF GUARDIANSHIP (Guardians ad
and those who exercise parental authority also have litem)
vicarious liability. It is called vicarious because even if they  In this provision, take note of the rule on guardianship of
are not the ones who are negligent or even if they are not minors. This is an administrative matter A.M No. 03-02-05-
the ones who are tortfeasors, under the law, they remain to SC. The rules on guardianship on minors are rules of court,
be liable for damages for the negligence that was the meaning these are what ought to be observed in instances
proximate cause of some injury or damages incurred by where there are guardianship proceedings where the court
some other person or persons. With respect to the vicarious appoint a guardian and guardian ad litem to ensure that the
liability of parents, their civil liability is broader since this is best-interest of the child are safeguarded or
the Civil Code which talks about civil liability. The scope of protected. What are the things in the administrative matter
their civil liability is enumerated in Article 221 which that I want you to focus on because the procedural or the
provides that for injuries and damages caused by the acts remedial aspect of this, you will discuss this in special
or omissions of their unemancipated children living in their proceeding in 3rd year. But as of now, look at the
company and under their parental authority, parents and substantive aspect of the rule on guardianship; look at
other persons exercising parental authority shall be civilly Sections 4, 5, and 6.
liable.  SECTION 4. Provides for the grounds of petition. When
 Other requisites included under article 221: there is a petition for guardianship or the appointment of
o The children must be living in their company. It is judicial guardian with respect to a minor child either or over
logical that it is the responsibility of those persons his person or over the property of such child, these are the
having special parental authority to ensure that the grounds.
child is safe and at the same time, they will be
protected from harming others. Since children are Sec. 4. Grounds of petition. – The grounds for the
living in the company of parents and those who appointment of a guardian over the person or property, or both,
exercise special parental authority, any damage or of a minor are the following:
injury that will be suffered by some other person, (a) death, continued absence, or incapacity of his parents;
that would be the liability of the one who exercises (b) suspension, deprivation or termination of parental
parental authority. In this instance, take note that authority;
the civil liability of parents will attach because ILLUSTRATION: Parent is imprisoned; so naturally, he cannot
naturally, unemancipated minors will not have any take care of his child. So, it is possible, no other parents
money to pay off for the amount of damages that especially if single mother or father, it is allowed that there may
they will have; so logically, it is the parents who be a court appointed guardian.
will be liable. If it is otherwise not living in their (c) remarriage of his surviving parent, if the latter is found
company or such as in the case of Tamargo, the unsuitable to exercise parental authority; or
adoption case, while the child has already been (d) when the best interests of the minor is so required by law.
adopted, according to the Supreme Court, the legal Question: What if both parents are unfit, and there are no
fiction that parental authority is with the adopting persons who may exercise substitute parental authority?
parent, that cannot apply because during that time, Answer: A court appointed guardian may be resorted to.
the actual custody and the persons who were
exercising parental authority over the child were Sec. 5. Qualifications of guardians. – In appointing a
actually the biological parents. guardian, the court shall consider the guardian’s:
 Finally, take note all that is not lost with respect to parents. (a) moral character;
So, the liability of parents is always subjected to the (b) physical, mental and psychological condition;
appropriate defense under the law. So, if we are talking (c) financial status;
about vicarious liability of parents in negligence cases, (d) relationship of trust with the minor;
naturally it is the defense of the parents that they exercise (e) availability to exercise the powers and duties of a guardian
due diligence in taking care of their children or in making for the full period of the guardianship;
sure that they do not harm others, or negligence was not (f) lack of conflict of interest with the minor; and
the proximate cause. (g) ability to manage the property of the minor.
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"Marriage does not secure fidelity, so much so that  There are instances where children gain income larger than
marriage does not secure longevity." (Alabastro, 2019) their own parents. So, the parental authority over the child,
by default it includes not only the person of the child but
Sec. 6. Who may be appointed guardian of the person or also his or her property. But there are specific rules with
property, or both, of a minor. – In default of parents or a respect to the property of children. This is where Article 225
court-appointed guardian, the court may appoint a guardian of comes in.
the person or property, or both, of a minor, observing as far as
practicable, the following order of preference: Art. 225. The father and the mother shall jointly exercise
(a) the surviving grandparent and In case several grandparents legal guardianship over the property of the unemancipated
survive, the court shall select any of them taking Into account common child without the necessity of a court appointment.
all relevant considerations; (similar to Article 216, Family Code) In case of disagreement, the father’s decision shall prevail,
(b) the oldest brother or sister of the minor over twenty-one unless there is a judicial order to the contrary.
years of age, unless unfit or disqualified; Where the market value of the property or the annual income
(c) the actual custodian of the minor over twenty-one years of of the child exceeds P50,000, the parent concerned shall be
age, unless unfit or disqualified; and required to furnish a bond in such amount as the court may
(d) any other person, who in the sound discretion of the court, determine, but not less than ten per centum (10%) of the
would serve the best interests of the minor. value of the property or annual income, to guarantee the
performance of the obligations prescribed for general
Art. 223. The parents or, in their absence or incapacity, the guardians.
individual, entity or institution exercising parental authority, A verified petition for approval of the bond shall be filed in
may petition the proper court of the place where the child the proper court of the place where the child resides, or, if
resides, for an order providing for disciplinary measures over the child resides in a foreign country, in the proper court of
the child. The child shall be entitled to the assistance of the place where the property or any part thereof is situated.
counsel, either of his choice or appointed by the court, and a The petition shall be docketed as a summary special
summary hearing shall be conducted wherein the petitioner proceeding in which all incidents and issues regarding the
and the child shall be heard. performance of the obligations referred to in the second
However, if in the same proceeding the court finds the paragraph of this Article shall be heard and resolved.
petitioner at fault, irrespective of the merits of the petition, The ordinary rules on guardianship shall be merely
or when the circumstances so warrant, the court may also suppletory except when the child is under substitute parental
order the deprivation or suspension of parental authority or authority, or the guardian is a stranger, or a parent has
adopt such other measures as it may deem just and proper. remarried, in which case the ordinary rules on guardianship
(318a) shall apply. (320a)
 This provision discusses the disciplinary measures under the  Joint Legal Guardianship of Parents over Property of
law where the law expects parents to resort to if they want Common Unemancipated Children
to discipline their minor children. The law imposes a  The father and mother shall jointly exercise legal
procedure by which disciplinary measures ought to be guardianship without need of a court appointment as
observed with regard to children. In this instance, parents guardians; it takes place by operation of law, thus repealing
or those individuals exercising parental authority should the Rules of Court insofar as it requires judicial appointment
petition to the court for the appropriate disciplinary measure under the situation. But it applies only to children who are
over the child. Otherwise, when the parents see it proper (a) common children and (b) unemancipated. Children by
and take it upon themselves to discipline their children previous marriage or emancipated minors do not fall under
extrajudicially or outside of court, that's not allowed because this Article. The latter are qualified and responsible for all
those are forms of child abuse and it may result into the acts of civil life (Art. 236).
deprivation or suspension of parental authority. This  Also, in case of disagreement, the father’s decision shall
proceeding must be followed under Article 223. prevail, unless there is a judicial order to the contrary. The
REASON for this is to prevent unnecessary delay in the
Art. 224. The measures referred to in the preceding article resolution of urgent matters which might prejudice the child.
may include the commitment of the child for not more than  Bond to Guarantee Performance of Obligations
thirty days in entities or institutions engaged in child care or  The purpose of the bond is to guarantee the performance of
in children’s homes duly accredited by the proper the obligations prescribed for general guardians. Thus, the
government agency. children are protected from the possibility of abuse of abuse
The parent exercising parental authority shall not interfere of administration or unjustified alienation of their property
with the care of the child whenever committed but shall by their parents.
provide for his support. Upon proper petition or at its own  Applicability of Article 225 is Limited
instance, the court may terminate the commitment of the  The first four (4) paragraphs of the Article are applicable
child whenever just and proper. (391a) only to a father and mother exercising joint legal
guardianship over the property of their common
 This is the rule with respect to the voluntary commitment of unemancipated child or children. Thus, ordinary rules of
children. It is also a form of disciplinary procedure. So, these guardianship are only applicable suppletorily.
measures may be resorted to apart from usual disciplinary  NOTES: By default, fathers and mothers with respect to
measures where the child may be required to be engaged in their common children shall jointly exercise legal
a community service or etc. guardianship over the property of their unemancipated
common child. This legal guardianship is a by-product of the
Chapter 4. Effect of Parental Authority Upon the law. The law itself requires that parents exercise legal
Property of the Children guardianship over the property of their children even in the
absence of a court appointment. Unless they become unfit,
for example, there is a legal determination that their mother
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or father is a spendthrift, then a court appointed guardian TAKE NOTE: The award of custody or the adjudication of
may be allowed. Similar with Article 96 and 124, in case of parental authority in favor of one parent will not preclude
disagreement, the father's decision shall prevail unless there visitation rights to the other. Visitation rights are not the
is a judicial order to the contrary or as a relief on the part of same as parental authority. This case also talks about the
the mother. issue on Article 176 in relation to Article 213, more
 So, the ordinary rules on guardianship in the last paragraph importantly, the preference under Article 216. This case is
shall be merely suppletory except when the child is under important because it settles the interpretation of Article 216.
substitute parental authority. With respect to Article 216, it would appear that there is an
order of preference prescribed by Article 216 where it
Art. 226. The property of the unemancipated child earned or becomes fixed. Here, the Court clarifies that Article 216 sets
acquired with his work or industry or by onerous or out an order of preference; it is not compulsory, it is not
gratuitous title shall belong to the child in ownership and mandatory. It still depends on the sound discretion of the
shall be devoted exclusively to the latter’s support and Court to whom substitute parental authority may be vested
education, unless the title or transfer provides otherwise. upon. Even if there are grandparents, it is possible that
The right of the parents over the fruits and income of the the substitute parental authority would be exercised by the
child’s property shall be limited primarily to the child’s actual custodian even if there are grandparents. It is not
support and secondarily to the collective daily needs of the proscriptive, compulsory, unlike in Article 199 where the
family. (321a, 323a) order provided is compulsory. Here, in default of number 1,
you go to number 2 and so and so forth.
 With respect to the property of children, even the fruits of The issue talks about the interpretation of Articles 176 and
those properties must pertain to everything that is needed 216. It would seem that the SC held that the rigidity behind
by the child for the child's support. The right of the parents the conflict between Articles 176 and 216 does not subscribe
over the fruits and income of the child's property shall be to that because as properly held by the Court, the best
limited primarily to the child's support and secondarily to the interest of the child is the paramount consideration, so the
collective daily needs of the family. The reason behind it welfare of the child is of the heart of the determination of
again is that children are not milking cups; you cannot oblige parental authority. There is no such thing as temporary
children to do you this favor. custody; it should always be permanently vested through
judicial proceedings.
Art. 227. If the parents entrust the management or
administration of any of their properties to an SCHOOL OF HOLY SPIRIT QC vs. TAGUIAM
unemancipated child, the net proceeds of such property shall With respect to the exercise of special parental authority,
belong to the owner. The child shall be given a reasonable teachers such as Taguiam stand in loco parentis, with respect
monthly allowance in an amount not less than that which the to their pupils so in the exercise of special parental authority,
owner would have paid if the administrator were a stranger, it would seem that the Court imposes on teachers, school
unless the owner, grants the entire proceeds to the child. In administrators, etc. that they guard against all possible and
any case, the proceeds thus give in whole or in part shall not virtual dangers against the life or property of the minor
be charged to the child’s legitime. (322a) children to whom they stand loco parentis to.
 Entrusting administration over the properties of children. ESPIRITU vs. COURT OF APPEALS
Take note, parents may entrust the management or This case discussed about the tender years presumption and
administration of their properties to their unemancipated the choice she will get under Article 213. The Court held that
child. The children are entitled to reasonable monthly respondent Court of Appeals erred in holding that child
allowance and shall not be considered as advances to their custody should be given to respondent. The findings and
legitimes. conclusions of the regional trial court is sustained because it
gave greater attention to the choice of Rosalinda and
CARAVAN TRAVEL TOURS vs. ABEJAR considered in detail all the relevant factors bearing on the
The underlying policy under the Family Code especially with issue of custody. The Court of Appeals resolved the question
respect to the award for moral damages under the law on of custody over the children through an automatic and blind
torts and damages, a person exercising substitute parental application of the age proviso of Article 363 of the Civil Code
authority is also rightly considered as an ascendant of the and of Article 213 of the Family Code. The Court of Appeals
deceased. Although Ermilinda is an ascendant within the was unduly swayed by an abstract presumption of law rather
collateral line, obviously, because Ermilinda exercised than an appreciation of relevant facts and the law which
parental authority, she may claim not only actual damages should apply to those facts. The task of choosing the parent
for the loss but also moral damages. Mere exercise of to whom custody shall be awarded is not a ministerial
substitute parental authority will not preclude the awarding function to be determined by a simple determination of the
of these damages or the filing of a complaint if that person age of a minor child. Whether a child is under or over seven
is considered as actual custodian of the child. years of age, the paramount criterion must always be the
child's interests. Discretion is given to the court to decide
MASBATE vs. RELUCIO who can best assure the welfare of the child, and award the
Here, we talk about the temporary exercise of custody or custody on the basis of that consideration. In ascertaining
parental authority by Ricky with respect to Quennie. One of the welfare and best interests of the child, courts are
the contentions set forth is since Quennie is an illegitimate mandated by the Family Code to take into account all
child, we have Article 176 (FC) that places Quennie under relevant considerations. If a child is under seven years of
the parental authority of the mother. But on the other hand, age, the law presumes that the mother is the best custodian.
we have Article 216 which also allows substitute parental The presumption is strong but it is not conclusive. It can be
authority; and if the father is the actual custodian of the child overcome by compelling reasons. If a child is over seven, his
or the de facto custodian of the child, then the father choice is paramount but, again, the court is not bound by
allegedly may also exercise substitute parental authority. that choice. In its discretion, the court may find the chosen
19
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parent unfit and award custody to the other parent, or even to be with Raymond, but there are indications that they
to a third party as it deems fit under the circumstances. entertain fears in their hearts and want to be sure that their
father is not drug dependent. Thus, the choice of the children
SANTOS SR. vs. COURT OF APPEALS here was not categorical. It was dependent or conditional;
The minor should be given to the legitimate father. When a that is, dependent or conditional if their father was not
parent entrusts the custody of a minor to another, such as a anymore drug dependent. So there was no determination of
friend or godfather, even in a document, what is given is the lower court showed that there was no categorical answer
merely temporary custody and it does not constitute a – one which must be definition and not subject to conditions.
renunciation of parental authority. Only in case of the
parents' death, absence or unsuitability may substitute GUALBERTO vs. GUALBERTO
parental authority be exercised by the surviving Take note that in this case, mere moral laxity, no matter how
grandparent. The Court held that the contentions of the obscene it might be or sensitive to the moralities of other
grandparents are insufficient as to remove Leouel's parental persons, that alone will not amount to cause the deprivation
authority and the concomitant right to have custody over the of the mother over the custody of the child, especially
minor. Bedias demonstrated love and affection for the boy, because of the Tender Age Presumption which by default,
notwithstanding, the legitimate father is still preferred over grants the mother parental custody or is the default custodial
the grandparents. The latter's wealth is not a deciding factor, regime under the law for minor children below 7 years of age.
particularly because there is no proof that at the present This case gives you the idea in the determination of
time, petitioner is in no position to support the boy. While compelling reasons, it must show not only must a compelling
Leouel's previous inattention is inexcusable, it cannot be reason exists, it must be detrimental or disadvantageous to
construed as abandonment. His appeal of the unfavorable the best interest of the child. The mere existence this reason,
decision against him and his efforts to keep his only child in no matter how compelling you think this is, there must be a
his custody may be regarded as serious efforts to rectify his showing that the compelling reason has an adverse effect on
past misdeeds. To award him custody would help enhance the child which warrants the deprivations of custody of the
the bond between parent and son. The Court also held that mother over their minor children.
his being a soldier is likewise no bar to allowing him custody NOTE: Definitely, with respect to the grounds for legal
over the boy. So many men in uniform, who are assigned to separation found in Art. 55, homosexuality or lesbianism per
different parts of the country in the service of the nation, are se, is a cause for legal separation. The parties are still
still the natural guardians of their children. Also, petitioner's married but are legally separated – a separation from bed
employment of trickery in spiriting away his boy from his in- and board. Nevertheless, remember the effects of Art. 65 in
laws, though unjustifiable, is likewise not a ground to wrest relation to Art. 55. Nothing is to prevent the court from
custody from him. depriving the children in favor of the guilty spouse – the one
who is proven to be a homosexual or lesbian. Nor is there
ESLAO vs. COURT OF APPEALS anything stopping the Court from the determining the
Take note that the temporary custody in favor of Teresita custody of the minor child.
when Maria entrusted her with the custody of the minor child,
that does not amount to renunciation or abandonment. The SALIENTES vs. ABANILLA
Supreme Court held that the right attached to parental Take note that there are special proceedings that ought to
authority is purely personal. The waiver of parental be observed in habeas corpus cases, especially pertaining to
authority is allowed only in cases where the law allows the delivery of the body of minor children.
it - adoption, guardianship, surrender to children’s This was the marriage of Loran and Antoinette who bore
homes or an orphan institution. It would appear that the named Emmanuel. Loran filed a petition of habeas corpus
cases where parental authority may be waived, it has to go with a prayer for custody on the basis the when Loran left
through some sort of proceeding. Either judicial or their house, he was prohibited from seeing their son.
administrative proceeding. Definitely, the mere transfer of Antoinette alleged that she was entitled to the custody of
custody in favor of another, that will not amount to a Emmanuel. She contended that there was no evidence at all
renunciation or abandonment. This case implicitly gives that the 3 year old Emmanuel was restraint, nor were there
you the idea that renunciation or abandonment must evidence presented that show Antoinette as an unfit mother
be permanent, not temporary. which would deprive her of custody from Emmanuel.
If there is some reason that exists where parental Take note that according to the Supreme Court, the writ of
relationship is against the best interest of the child, then the habeas corpus is a remedy/action/petition that may be filed
parental authority on account of that relationship, such as or resorted to in cases where the rightful custody of a child
one that is abusive, the relationship may be severed. But is withheld from a person entitled thereto. It does not
that is not up to the parties to decide. It must properly be in determine to whom the custody of the child shall
threshed out in court proceedings. pertain to. It is not an action that will permanently
determine the nature of the custody – will it be in favor of
LAXAMANA vs. LAXAMANA the mother or the father.
Take note that with respect to custody of minor children,
obviously, since in this case they are 14 and 15, they are There are two important elements/requisites to habeas
entitled to choose which parent they will stay with or which corpus:
parent shall exercise custody over them. But there is a 1. That the person filing I must have had rightful custody
rendition of this choice: while it is true that the law allows over the child/children
children to choose, the Supreme Court held that the 2. That the rightful custody has been withheld by some
choice of the children must be one which is other person or persons (from the petitioner)
categorical. In fact, the Supreme Court pointed out that the  In this case, the basis for the action of habeas corpus was
nature of the choice rendered before the proceedings of the that Loran and Marie Antimonite, under Art. 211, have joint
trial court was a defective choice. Why? The trial court merely parental authority over Emmanuel, which cannot be
stated that the children were asked whether they would like disputed as between them unless they go through a
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proceeding wherein only one of them will be granted by the Stephanie being below 7 years of age, her custody must be
court sole custody of Emmanuel. Since they currently have in favor of Harold. If you enforce that foreign divorce decree
joint custody, either of them may exercise parental here in the Philippines, would that be given effect as in the
authority over the minor child, such that even if there is a case of Dacasin? Obviously not because it goes against our
Tender Age Presumption, (especially if they’re legitimate) public policy – the custody of minor children below 7 years,
this presumption does not erase the fact that joint parental absent compelling reasons, will be in favor of the mother.
custody must be exercised between the mother and father.
 Art. 213 of the Family Code is only a presumption; it Chapter 5. Suspension or Termination of Parental
deals with eh judicial adjudication of custody and serves as Authority
a guideline for the proper award of custody by the Court.
Art. 213 and custody of children is a separate and distinct Art. 228. Parental authority terminates permanently:
issue from the writ of habeas corpus which literally means (1) Upon the death of the parents;
only the delivery of the body. You just have to show the (2) Upon the death of the child; or
children, show that they are safe and argue before the judge (3) Upon emancipation of the child. (327a)
was there an unlawful withholding of their custody as to the
other person or petitioner. Then the judge will determine in  Under this provision, these are instances where parental
the habeas corpus proceedings the visitation right of the authority terminates permanently.
parents, the Court may thereafter determine the judicial  Upon the emancipation of children, the provisions of the Civil
adjudication of the permanent custody of the children. Code have already been amended. This amendment came
 NOTE: Habeas corpus is not an action to determine custody. to the passage of R.A 6809. It used to be that emancipation
It is an action to determine whether there was an unlawful happen in different forms, even emancipation in marriage.
withholding or refusal to surrender custody over the minor But now under the current law, emancipation takes place by
child in favor of some person entitled thereto. the attainment of the age of majority. Unless otherwise
provided for in another, the age of majority commences at
GAMBOA-HIRSCH vs. CA the age of 18 years of age. The effect of emancipation is
The custody over the minor child does not automatically stop that it shall terminate parental authority over the person
at the Tender Age presumption wherein custody shall and property of the child who shall be qualified and
immediately be with the mother. It should not stop there. responsible of all the acts of civil liability.
You also have to show, such as in this case, that there was  Question: What are these instances that even if children
also no compelling reason to deprive the mother from are already of age, their parents still exercise a certain
custody over the minor. Remember that the Tender Age extent of parental authority?
Presumption is ONLY a presumption. If facts will exist Answer: If these children decide to get married and they
(such as in the problem I will give you in the exam) to are between the age of 18-21, parents are still expected to
deprive the mother over the custody of the child, even if the render or give parental consent; and 21-25, parental advice.
child is below 7 years of age, take note, the existence or These are the instances where even if you are emancipated,
absence of a compelling reason must be explained in relation because you are of age, you still need the parental authority
to the best interest of the child. of parents as parents exercise a level of parental authority
over your person despite being of age.
DACASIN vs. DACASIN  In case where you reach the age of 18 years old and above
In this case, take note that the Supreme Court reminds you but you are incapacitated to take care of your own, your
that Art. 213 is not a strait jacket. The Tender Age parents by default become your legal guardian as well.
Presumption is not automatic such that any child below 7
years of age will automatically be under the custody of the Art. 229. Unless subsequently revived by a final judgment,
mother. The Court will still determine the existence of parental authority also terminates:
compelling reasons and the like. Nevertheless, this seeming (1) Upon adoption of the child;
harshness with the sole custody of one parent against the (2) Upon appointment of a general guardian;
other is tempered by ancillary agreements; meaning other, (3) Upon judicial declaration of abandonment of the child in
smaller agreements in the custody judgement whereby the a case filed for the purpose;
other parent who does not have sole custody may be given (4) Upon final judgment of a competent court divesting the
visitation rights or may be given instances where he or she party concerned of parental authority; or
is given temporary custody of the minor child. Art. 213 only (5) Upon judicial declaration of absence or incapacity of the
determines the final or parental authority in case of person exercising parental authority. (327a)
disagreement. That is the rule we ought to follow, but
nothing is preventing the Court from ruling otherwise,  Although parental authorities may preliminarily be
especially in cases where compelling reasons exists against terminated, the same may be subsequently revived by final
the mother. judgement through summary proceedings which will allow
The special circumstance surrounding the case is that it you to revive the parental authority formerly terminated.
sprung out of divorce proceedings. Take note that the divorce  Upon adoption of the child and appointment of a
decree, insofar as it awards custody over the child in favor general guardian.
of the mother Sharon, that was allowed only because this  Question: When does parental authority revest in case of
divorce decree was aligned or is the same as our public adoption, especially with respect to the biological parents?
policy. What is our public policy? Art. 213. That is why the Answer: In case that the adoption decree is rescinded
Supreme Court stated that any post-divorce custodial which can be rescinded only by the adopted or only the
agreement cannot be given effect because that would also minor child if. Upon appointment of general guardian,
go against our public policy. general guardian usually has the authority to administer and
manage not only the person but the entirety of his or her
 To tweak your brain: What if Herald and Sharon got a property. Special guardians are appointed for a specific
divorce decree which ruled that despite the minor child purpose. So, at the end of the guardianship, the court may
21
(4th Exam Coverage)
also decree a judgment to revive the former parental instances under the law are very specific. By the passage of
authority. the city ordinance, it will not automatically suspend or
 Upon judicial declaration of abandonment of the child terminate the parental authority unless you fall under ART
in a case filed for the purpose 231 (2), where the grounds enumerated herein include
 The children will be committed to the care of those agencies instances resulting from culpable negligence of parent.
appointed or allowed with the DSWD to take care of  If parents are found to be culpably negligent with respect to
foundlings, abandoned children, until they are subsequently acts of his or her child, then those parents may be deprived
adopted or until their parents resurface. or terminated of parental authority temporarily.
 Upon final judgment of a competent court divesting
the party concerned of parental authority Art. 232. If the person exercising parental authority has
 There are instances that limit ones capacity to act, and subjected the child or allowed him to be subjected to sexual
because of that, it may be that it would carry with it your abuse, such person shall be permanently deprived by the
disqualification to have custody over your child, especially if court of such authority. (n)
a crime usually involves moral turpitude. But, subsequently,
if it is allowed or subsequently decided by the court that you Art. 233. The person exercising substitute parental authority
may be given a parental authority, then it is only upon that shall have the same authority over the person of the child as
final judgement which will revive the parental authority. the parents.
 Upon judicial declaration of absence or incapacity of In no case shall the school administrator, teacher of
the person exercising parental authority individual engaged in child care exercising special parental
 Since there is judicial declaration, judging a parent or the authority inflict corporal punishment upon the child. (n)
parents to be absentees or to be incapacitated, the only way
to revive the former parental authority is through a final RA 7610 CHILD ABUSE, EXPLOITATION AND
judgment declaring the absentism to have already ceded or DISCRIMINATION
declaring the capacity for which they were formerly
incapacitated. Section 3. Definition of Terms. –
(a) "Children" refers to person below eighteen (18) years of age
Art. 230. Parental authority is suspended upon conviction of or those over but are unable to fully take care of themselves or
the parent or the person exercising the same of a crime protect themselves from abuse, neglect, cruelty, exploitation or
which carries with it the penalty of civil interdiction. The discrimination because of a physical or mental disability or
authority is automatically reinstated upon service of the condition;
penalty or upon pardon or amnesty of the offender. (330a) (b) "Child abuse" refers to the maltreatment, whether habitual
or not, of the child which includes any of the following:
 If parents are incarcerated on account of their conviction, 1) Psychological and physical abuse, neglect, cruelty,
take note that parental authority is merely suspended, it is sexual abuse and emotional maltreatment;
not terminated but it is necessary that the penalty of the 2) Any act by deeds or words which debases, degrades or
crime so convicted with respect to the parent, so imposed demeans the intrinsic worth and dignity of a child as a
with respect to the parent, it is necessary that the penalty human being;
must carry with it civil interdiction. 3) Unreasonable deprivation of his basic needs for
survival, such as food and shelter; or
Art. 231. The court in an action filed for the purpose in a 4) Failure to immediately give medical treatment to an
related case may also suspend parental authority if the injured child resulting in serious impairment of his
parent or the person exercising the same: growth and development or in his permanent
(1) Treats the child with excessive harshness or cruelty; incapacity or death.
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or Section 27. Who May File a Complaint. – Complaints on
(4) Subjects the child or allows him to be subjected to acts cases of unlawful acts committed against the children as
of lasciviousness. enumerated herein may be filed by the following:
The grounds enumerated above are deemed to include cases a) Offended party;
which have resulted from culpable negligence of the parent b) Parents or guardians;
or the person exercising parental authority. c) Ascendant or collateral relative within the third degree
If the degree of seriousness so warrants, or the welfare of of consanguinity;
the child so demands, the court shall deprive the guilty party d) Officer, social worker or representative of a licensed
of parental authority or adopt such other measures as may child-caring institution;
be proper under the circumstances. e) Officer or social worker of the Department of Social
The suspension or deprivation may be revoked and the Welfare and Development;
parental authority revived in a case filed for the purpose or f) Barangay chairman; or
in the same proceeding if the court finds that the cause g) At least three (3) concerned responsible citizens where
therefor has ceased and will not be repeated. (33a) the violation occurred.
 ILLUSTRATION: The local government of Davao City has Section 28. Protective Custody of the Child. – The offended
imposed a curfew for minor children. During that time, it party shall be immediately placed under the protective custody
was said that in accordance with the city ordinance, if of the Department of Social Welfare and Development pursuant
children are caught and those children do not comply with to Executive Order No. 56, series of 1986. In the regular
the curfew, then parents will be terminated of all parental performance of this function, the officer of the Department of
authority, and the children will be committed to the DSWD. Social Welfare and Development shall be free from any
So, although it may be a good way to market curfew with administrative, civil or criminal liability. Custody proceedings
respect to children, take note that such is not true, at least shall be in accordance with the provisions of Presidential Decree
with respect to parental authority. It is because the No. 603.
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** If children are abused by their own parents, since that is a Art. 238. Until modified by the Supreme Court, the
form of child abuse, take note that substitute parental authority procedural rules provided for in this Title shall apply as
or protective custody may be exercised immediately by the regards separation in fact between husband and wife,
DSWD. Custody proceedings shall ensue afterwards. abandonment by one of the other, and incidents involving
parental authority. (n)
CRIMES OR ACTS PUNISHED UNDER R.A NO. 7610
Section 5. Child Prostitution and Other Sexual Abuse., Applicability of Procedural Rule
Section 6. Attempt To Commit Child Prostitution. The following cases require summary court proceedings:
Section 7. Child Trafficking 1. Article 100 (2) – which involves cases of separation in
Section 8. Attempt to Commit Child Trafficking. fact between husband and wife under the regime of
Section 9. Obscene Publications and Indecent Shows. absolute community and where the consent of one
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation spouse to any transaction of the other, is required by
and Other Conditions Prejudicial to the Child's Development. – law;
2. Article 127(2) – which involves cases of separation in
TORRES vs. PEOPLE fact between husband and wife under the regime of
Take note that the act of slapping a child with a wet t-shirt, conjugal partnership of gains and where the consent
no matter what your intention is (such as for the betterment of one spouse to any transaction of the other, is
of the child), that act amounts to child abuse because it is a required by law;
form of cruelty; it is a condition which exposes the child’s 3. Article 42 – which involves an action for the declaration
development to prejudiced. In this case Clifford was held of the presumptive death of an absent spouse believed
liable for acts amounting to child abuse in violation of Sec. to be dead;
10 (a) of RA 7610. 4. Article 51 - which involves the delivery of presumptive
There are appropriate measures to intervene and discipline legitimes by means of mutual agreement requiring
children, without resorting to violence. It is immaterial judicial approval;
what your relationship to the child is or the earnest 5. Article 69 - which involves a disagreement in the fixing
efforts of disciplining the child by slapping him or her. of family domicile;
That still amounts to child abuse. Take note the RA 6. Article 73 - which involves objection by one spouse to
7610 is mala prohibita. The mere commission of these acts the exercise by other spouse of any legitimate
will amount to criminal liability for child abuse or in violation profession, occupation, business or activity;
of RA 7610. Intent to do so, no matter how in good faith you 7. Article 96 - which involves a disagreement in the joint
alleged yourself to be, that is immaterial because obviously, administration and enjoyment of the community
this is mala prohibita. property;
8. Article 124 – which involves a disagreement in the joint
TITLE X administration and enjoyment of the conjugal
EMANCIPATION AND AGE OF MAJORITY partnership;
9. Article 217 – which involves the entrusting of parental
Art. 234. Emancipation takes place by the attainment of authority over foundlings, abandoned, neglected or
majority. Unless otherwise provided, majority commences at abused children and other children similarly situated to
the age of twenty-one years. heads of children’s homes, orphanages, and similar
Emancipation also takes place: institutions duly accredited by the proper government
(1) By the marriage of the minor; or agency;
(2) By the recording in the Civil Register of an agreement in 10. Article 225 – which involves the fixing of the bond of
a public instrument executed by the parent exercising parents
parental authority and the minor at least eighteen years of  NOTES: In those previous provisions, if the law provides
age. Such emancipation shall be irrevocable. (397a, 398a, that there will be a summary hearing or proceeding, the
400a, 401a) rules of procedure that will be observed will be Title 9 of the
Family Code, from Article 239 onwards. Technical rules like
Art. 235. The provisions governing emancipation by recorded in ordinary rules of court are not observed.
agreement shall also apply to an orphan minor and the
person exercising parental authority but the agreement must Chapter 2. Separation in Fact
be approved by the court before it is recorded. (n)
Art. 239. When a husband and wife are separated in fact, or
Art. 236. Emancipation for any cause shall terminate one has abandoned the other and one of them seeks judicial
parental authority over the person and property of the child authorization for a transaction where the consent of the other
who shall then be qualified and responsible for all acts of civil spouse is required by law but such consent is withheld or
life. (412a) cannot be obtained, a verified petition may be filed in court
alleging the foregoing facts.
Art. 237. The annulment or declaration of nullity of the The petition shall attach the proposed deed, if any,
marriage of a minor or of the recorded agreement mentioned embodying the transaction, and, if none, shall describe in
in the foregoing. Articles 234 and 235 shall revive the detail the said transaction and state the reason why the
parental authority over the minor but shall not affect acts required consent thereto cannot be secured. In any case, the
and transactions that took place prior to the recording of the final deed duly executed by the parties shall be submitted to
final judgment in the Civil Register. (n) and approved by the court. (n)
TITLE XI Art. 240. Claims for damages by either spouse, except costs
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW of the proceedings, may be litigated only in a separate
Chapter 1. Prefatory Provisions action. (n)
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Art. 241. Jurisdiction over the petition shall, upon proof of 1. Petition with the proper court for the issuance of an
notice to the other spouse, be exercised by the proper court order for disciplinary measures against an erring child;
authorized to hear family cases, if one exists, or in the 2. Petition to set aside or modify the father’s decision in
regional trial court or its equivalent sitting in the place where case of disagreement on the parents’ joint exercise of
either of the spouses resides. (n) legal guardianship over the property of their common
unemancipated child; and
Art. 242. Upon the filing of the petition, the court shall notify 3. Petition for approval of agreement between an
the other spouse, whose consent to the transaction is orphaned minor at least 18 years of age and the person
required, of said petition, ordering said spouse to show cause exercising parental authority over him under Article
why the petition should not be granted, on or before the date 235 (FC) is no longer with repeal of said article.
set in said notice for the initial conference. The notice shall  Concept of Verification
be accompanied by a copy of the petition and shall be served o A pleading is verified only by an affidavit stating
at the last known address of the spouse concerned. (n) that the person verifying has read the pleading and
that the allegation thereof are true and correct of
Art. 243. A preliminary conference shall be conducted by the his own knowledge and belief. Verifications based
judge personally without the parties being assisted by on “information and belief” or upon “knowledge,
counsel. After the initial conference, if the court deems it information and belief” shall be deemed insufficient
useful, the parties may be assisted by counsel at the and shall be treated as unsigned pleading.
succeeding conferences and hearings. (n)  NOTES: Petitions involving parental authority must also be
verified, when the law speaks of verified, it means that the
Art. 244. In case of non-appearance of the spouse whose petition must be under oath because as a rule, petitions and
consent is sought, the court shall inquire into the reasons for complaints need not be verified in order for them to be filed
his failure to appear, and shall require such appearance, if in court unless when the rules so requires, and a petition
possible. (n) may be verified through affidavit.
Art. 245. If, despite all efforts, the attendance of the non- Art. 250. Such petitions shall be verified and filed in the
consenting spouse is not secured, the court may proceed ex proper court of the place where the child resides. (n)
parte and render judgment as the facts and circumstances
may warrant. In any case, the judge shall endeavor to Art. 251. Upon the filing of the petition, the court shall notify
protect the interests of the non-appearing spouse. (n) the parents or, in their absence or incapacity, the individuals,
entities or institutions exercising parental authority over the
child. (n)
Art. 246. If the petition is not resolved at the initial
conference, said petition shall be decided in a summary
hearing on the basis of affidavits, documentary evidence or Art. 252. The rules in Chapter 2 hereof shall also govern
oral testimonies at the sound discretion of the court. If summary proceedings under this Chapter insofar as they are
testimony is needed, the court shall specify the witnesses to applicable. (n)
be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses. (n) Chapter 4. Other Matters Subject to Summary
Proceedings
Art. 247. The judgment of the court shall be immediately
final and executory. (n) Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41,
51, 69, 73, 96, 124 and 127, insofar as they are applicable.
Art. 248. The petition for judicial authority to administer or
(n)
encumber specific separate property of the abandoning
spouse and to use the fruits or proceeds thereof for the
support of the family shall also be governed by these rules. TITLE XII
(n) FINAL PROVISIONS
 This provision pertains to the judicial relief that the spouse Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1
may resort to in case of abandonment under Articles 100 of Republic Act No. 386, otherwise known as the Civil Code
and 127. of the Philippines, as amended, and Articles 17, 18, 19, 27,
 Separate Property of Abandoning Spouse; 28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No.
Authorization for Administration or Encumbrance 603, otherwise known as the Child and Youth Welfare Code,
Only as amended, and all laws, decrees, executive orders,
 This article is the procedural aspect of Article 100 (2-3) and proclamations, rules and regulations, or parts thereof,
of Article 127 (2-3) of the Family Code. It does not cover inconsistent herewith are hereby repealed.
the sale or alienation of the separate property of the
abandoning spouse. Art. 255. If any provision of this Code is held invalid, all the
other provisions not affected thereby shall remain valid.
Chapter 3. Incidents Involving Parental Authority
Art. 256. This Code shall have retroactive effect insofar as it
Art. 249. Petitions filed under Articles 223, 225 and 235 of does not prejudice or impair vested or acquired rights in
this Code involving parental authority shall be verified. (n) accordance with the Civil Code or other laws.
 Petitions Covered REPUBLIC vs. COURT OF APPEALS

 The following petitions contemplated under the article must In civil procedure, you will encounter that there are different
be verified under this article: types of action such as criminal or civil actions. In civil
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actions we have ordinary civil actions, special civil actions out. It being final, obviously, you cannot make an appeal –
and special proceedings. this is in line with the case of Republic vs. Lorino.
Ordinary civil actions are very lengthy which last about What then is the proper remedy if not an appeal, it should
5 to 10 years, assuming it all goes smoothly. These actions be a petition for certiorari as cited in the case of Republic vs.
are governed by the Rules of Court. Ordinarily, there are Tango. On the basis of what? The basis of grave abuse of
procedures that one must observe, as the procedures are discretion amounting to lack or excess of jurisdiction whereas
very lengthy. Whereas in special proceedings, it is special appeal is a form of review, meaning a higher court will review
because the proceedings are abbreviated. It is shorter the decision of the lower court. Take note however, that a
and more expedient. As cited in this case, there are also petition for review is not a form of appeal.
different type of special proceedings. There is the settlement What happens if it is found that there was grave abuse of
of the estate, guardianship, adoption, etc. One of it is under discretion amounting to lack or excess of jurisdiction? The
Rule 72 is the declaration of presumptive death on the part decision shall be null and void. It is as if no decision had been
of the absentee spouse. rendered from the beginning.
In ordinary civil cases, it usually involves a cause of action.
If there is a right which exists with respect to the complainant TITLE XIII
and that right is violated by some other person or persons. Use of Surnames (n)
The violation of that right will give rise to an obligation or the
vindication of some right. Whereas in special proceedings, Art. 364. Legitimate and legitimated children shall principally
we do not necessarily observe the existence of a cause of use the surname of the father.
action. So there is no right that is vindicated. In special
proceedings, it usually determines status or other matters in
a particular case such as adoption or guardianship. You don’t Art. 365. An adopted child shall bear the surname of the
determine some wrong or account for some damage. adopter.
In the same breadth, with respect to the judicial declaration
of presumptive death in relation to Art. 41, you only cater or  NOTE: You must correlate the provisions under Art. 174 and
tackle the issue involving the status of a person, which is the 176 with respect to the provisions under the New Civil Code
status of the petitioner – can a subsequent marriage be with the use of surnames.
contracted considering the consequence of a well-founded  Take note that it is obvious the with respect to legitimate
belief that the absentee spouse is already dead. and illegitimate children, they shall principally use the
surname of the father. In relation to Art. 174 of the Family
REPUBLIC vs. LORINO Code, the right to the use of the surname is with respect to
The Republic thorough the OSG appealed the judgement of the legitimate children. It cannot be compelled or mandated
the trial court. Was this correct? No. The Republic is by the parents.
incorrect. The Supreme Court said held that it was improper  However, under Art. 364 gives them the right to choose
or erroneous for the Republic to make an appeal considering whether not to bear that surname. The reasons for it is that
that the judgement of presumptive death is immediately final it is their right and they may waive such right. Moreover,
and executory (Art. 247, FC). It was also erroneous on the nothing is prohibiting them from changing their surname,
part of the RTC to give due course to the Republic’s appeal absent compelling reasons. Like for example the child has
and order the transmittal of the entire records of the case to an abusive father or is under the sole parental authority of
the Court of Appeals. Since an appeal is incorrect due to the the mother. To bear the surname of the father is therefore
judgement being final and executory, what should be the not mandatory. There is no level of compulsion there. With
proper remedy? It should have been a petition for certiorari respect to adopted children however, they shall bear the
(also provided for in Republic vs. Tango) surname of their adopter.
 NOTE: Art. 366, 367 and 368 of the New Civil Code have
CONCEPT OF PROCEDURES already been repealed. In its place, we have Art. 176 of the
From the time of rendition of judgement or when the court Family Code which provides that illegitimate children shall
makes a decision, in ordinary civil cases, there has to lapse a use the surname of the mother.
period of 15 days from the receipt of judgement before the
decision becomes final. When a decision becomes final, its Art. 366. A natural child acknowledged by both parents shall
“finality” partakes two senses. In the first sense, a final principally use the surname of the father. If recognized by
judgement completely disposes the issue or controversy of the only one of the parents, a natural child shall employ the
case. Second, it may also mean that the 15-day period of within surname of the recognizing parent.
which one has to make an appeal, has already lapse and
therefore, since it is final, it is immutable and cannot be Art. 367. Natural children by legal fiction shall principally
deterred. employ the surname of the father.
REPUBLIC vs. TANGO Art. 368. Illegitimate children referred to in article 287 shall
In special proceedings such as actions involving the judicial bear the surname of the mother.
declaration of presumptive death, take note that it is a
summary proceeding. It is a special proceeding at that. It Art. 369. Children conceived before the decree annulling a
being a special or summary proceeding, what is the effect? voidable marriage shall principally use the surname of the
It is not an ordinary civil action, meaning, you don’t have to father.
wait the lapse of 15 days before it becomes final. That is why
Art. 247 provides that judgements rendered by the court  Take note of Art. 369 as it does not give a complete rule
shall be immediately final and executory. Final as in it such that if the child was conceived after, the surname of
completely disposes the issue of the case and executory, the mother shall be used if she had not yet remarried. A
meaning whatever judgement rendered by the court in the child born into a voidable marriage, which was valid prior to
decision or judgement, it may already be executed or carried
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is annulment, is a legitimate child. Being a legitimate child,  On the other hand, there are instances where you may go
he/she shall principally use the surname of the father. through an administrative body under special circumstances
 If the child was conceived after, it shall use the surname of which are under RA 9048 and RA 10172. Take note that
the mother in so long as the mother has not remarried. these instances will allow you to make certain corrections
without going through the court. This is the initial
Art. 370. A married woman may use: distinction.
(1) Her maiden first name and surname and add her
husband’s surname, or Art. 377. Usurpation of a name and surname may be the
(2) Her maiden first name and her husband’s surname, or subject of an action for damages and other relief.
(3) Her husband’s full name, but prefixing a word indicating
that she is his wife, such as “Mrs.” Art. 378. The unauthorized or unlawful use of another
person’s surname gives a right of action to the latter.
 The woman may even retain her full surname/maiden name
as if she was not married because the law is only permissive: Art. 378. The unauthorized or unlawful use of another
“A married woman MAY use…” person’s surname gives a right of action to the latter.
Art. 371. In case of annulment of marriage, and the wife is Art. 379. The employment of pen names or stage names is
the guilty party, she shall resume her maiden name and permitted, provided it is done in good faith and there is no
surname. If she is the innocent spouse, she may resume her injury to third persons. Pen names and stage names cannot
maiden name and surname. However, she may choose to be usurped.
continue employing her former husband’s surname, unless:
(1) The court decrees otherwise, or Art. 380. Except as provided in the preceding article, no
(2) She or the former husband is married again to another person shall use different names and surnames.
person.
RA 9255 – An Act Allowing Illegitimate Children to Use
Art. 372. When legal separation has been granted, the wife the Surname of Their Father, Amending for the Purpose
shall continue using her name and surname employed before Article 176
the legal separation. General rule: Illegitimate children shall use the surname of
their mother. However, under Art. RA 9255, illegitimate children
 Remember that legal separation does not sever the marital may use the surname of the father if their filiation has been
bond. expressly recognized by the father through any record of birth
appearing in the civil register, or when there is an admission in
Art. 373. A widow may use the deceased husband’s surname a public document or private handwritten instrument made by
as though he were still living, in accordance with article 370. the father. However, the father may establish proof of non-
filiation.
Art. 374. In case of identity of names and surnames, the
younger person shall be obliged to use such additional name REPUBLIC vs. CA AND VICENCIO
or surname as will avoid confusion. Remember: In proceedings for change of name, it is a
privilege not a matter of right address to the sound
Art. 375. In case of identity of names and surnames between discretion of the Court, which has the duty to consider
ascendants and descendants, the word “Junior” can be used carefully the consequences of the change of name, and to
only by a son. Grandsons and other direct male descendants deny the same, unless reasons are shown.
shall either: Generally, according to the Supreme Court, the change of
(1) Add a middle name or the mother’s surname, or name must be based on PROPER AND REASONABLE
(2) Add the Roman numerals II, III, and so on. CAUSES. Absence such causes, the change of name cannot
be allowed.
 Remember that Art. 374 and Art. 375 are only applicable Under the New Civil Code, that legitimate and legitimated
in identical names and surnames. children, shall principally bear the surname of the father.
Principally, that means that the right is dependent on the
Art. 376. No person can change his name or surname without legitimate child. Nevertheless, if there is an action or petition
judicial authority. instituted to change one’s name, there must be a showing of
proper and reasonable reason for that change. Otherwise, it
 Take note this must be taken in relation to Art. 103 and 108, might cause confusion.
Rules of Court. Art. 376 provides the general rule that in Question: What is the confusion that it would cause in this
order to change your name or surname, you have to case? With respect to Cynthia’s parentage.
undergo judicial proceeding. You cannot sub sue a pseudo Answer: Obviously, she is not in any way related to the
name or assume another identity without judicial authority step-father. She is in fact a legitimate child of Fe and Pablo,
form the courts. that is why necessarily the absence of proper and reasonable
 NOTE: However, there are special circumstances where the cause, she must bear the surname Vicencio and not the
law allows for administrative measures. Meaning instead of surname Yu.
going through judicial authorities, you go through
administrative bodies. Rule 103 and Rule 108 are under the IN RE: PETITION OF JULIAN LIN CARULASAN WANG
Rules of Court. They are the rules you have to observe if Middle names serve to identify the maternal lineage or
you file a judicial action in relation to your change of name filiation of a person, as well as, further distinguish him from
or in relation to a change of entries in the civil register. Since others who may have the same given name and surname as
they are Rules of Court, you have to go through the Court he has.
because it goes to the general rule under Art. 376. In case of Alfon vs. Republic, the Supreme Court actually
apply that, since Art. 364 of the New Civil Code only provides
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that, legitimate and legitimated children shall principally use relation to his parents, and successional rights, either as
the surname of the father. The Supreme Court held that, legitimate or illegitimate child. That is why, no one could just
there is mandatory requirement or there is no come to court and haphazardly ask a change of name
prohibition in the law that the child who is legitimate because it will have an effect, not only as to the identity of
or illegitimate may opt not to choose the surname of that person but also as to the determination of their status,
the father. their lineage, determination of their filiation, and ultimately
In the case at bar, it was alleged that since the Singaporean their successional rights.
society does not require the presentation of one’s middle
name in any record that they have in the Singapore. Julian REMO vs. SECRETARY
alleged that it would facilitate better his filiation into First, with respect to the issue under Art. 370, it is correct.
Singaporean society. That is improper. Especially when; a A married woman may use the following options: it will be
change of name cannot be allowed if it would blur the line of the first name, surname, and etc. But, the fact that the word
parentage or it would blur the filiation. MAY is used and it is permissive, it will not foreclose the
Children whether they legitimate or illegitimate, may have possibility that once a woman has already chosen a surname;
right, not only with respect to the father but they also have that surname or by the manner by which it has presented
successional rights with respect to the mother. That is why the full name, that cannot be changed upon her own
wrapping up the middle name would blur that line. It would liking, that cannot be changed arbitrarily.
no longer be identified the maternal lineage, which may Basically, the Supreme Court is saying, that while the notice
prejudice the minor child, such as the claim for legitimes or is permissive, for as long as the married woman has already
the claim for support. chosen the manner by which prevent her surname or full
According to the Supreme Court, if indeed Julian want to name. That choice cannot be override after all option. It is
change and take away his middle name on the basis that he not allowed that she is the only who will decide.
is the legitimate child and he opts not to carry with him the The Supreme Court applied the passport law (Take note the
middle name, he may do so; not during the time of his consideration under this law). In this case, the Supreme
minority but at the time when he consciously and already Court is saying that, there may be instances where married
legally understand the precautions, consequences of the women may choose to change their surname but those
petition. instances must be present first, before a change in the name
The Supreme Court said, it is not prohibited that you drop is allowed.
your middle name. It just that, taking away of the middle Question: What are those instances?
name or the basis of petition for the change of name must Answer: The declaration of nullity of marriage, the
be one which is proper and reasonable causes. Mere annulment of the marriage, legal separation, or even
convenient to imaginary stipulate to another society that is legitimation; if she is a legitimate child.
not part of the reason. Since those instances are also not existing in the present
case, the Supreme Court held that the choice of Maria to
IN THE MATTER OF ADOPTION OF STEPHANIE NATHY change her name would make it seem as if she was not
ASTORGA GARCIA married, which is a fact that should be reflected in her
When the child is adopted the law requires that the surname passport.
of the adopted child must be that of the adopter, but there Accordingly, the Supreme Court said, is not up to her. Upon
is no rule which regulate the usage of the middle name her election of what name, she will choose; she has to use
with respect to adopted children. that name all through out. Unless, those circumstances
According to the Supreme Court, the intention of the which were discussed by the Supreme Court will happened
adoption laws that we have in the Philippines, must be in or will exist.
favor of the adopted child in case of doubt, and more Take note: Once a married woman has already chosen the
importantly since adopted children are to be vested with a surname for the manner by which she will present her entire
status as of that legitimate children, it would actually aid the full name, that choice cannot be override after an option.
purpose of the law; if Stephanie would be allowed to carry There must be proceeding that will be undertaken for
out the surname of her mother as her own middle name. reverting back to the previous maiden name or her maiden
That is the importance, or that is necessary because it would full name.
help her to trace her maternal line, and it would be as if that
Stephanie is truly a legitimate child because the law does not GRANDE vs. ANTONIO
anymore distinguish between the legitimate and those who First, with respect to legitimate children, the court held that,
are adopted. the best interest of the child it is more suited for illegitimate
children not only to be fair to the parental authority of the
REPUBLIC vs. CAPOTE mother but also to bare the surname of the mother. It is not
With respect to change of surname, you apply Rule 103 for the purpose to identify the illegitimate, but because the
because that change of name is substantial. It is substantial law presumes under Art. 176 that by default and in the
because it would determine your filiation. It may change in absence of recognition, the mother’s surname should be
such a manner; if you are legitimate you will become reflected by the surname of the illegitimate children.
illegitimate. Second, the important construction or interpretation of Art.
In this case, the law requires that with respect to illegitimate 176. Just because Art. 176, it allows paternal recognition or
children, they must bear the surname of their mother by acknowledgement, and meaning what the father has already
default. In case that there is recognition by the father, that acquire knowledge about the illegitimate child; the child may
is the time where they can bear the surname of their father. bear the surname of the father. Just because that recognition
More importantly, this was the case in relation to Art. 176, under the law exist, it does not mean that it is mandatory
with respect to the usage of surnames with regard to required or it may be compelled. That was the entirety of the
illegitimate children, by default it should be to the mother. action of Antoio was.
According to the Supreme Court, there is a connection Antonio was arguing that since Art. 176 allows me to
between a person’s name to its identity, to the status; in acknowledge my illegitimate children, naturally my
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illegitimate children should bear my surname. That is neither name changed, or some other person on his behalf, and shall
the choice of the father nor the choice of the mother. set forth:
Ultimately, it must be the choice of the illegitimate children. (a) That the petitioner has been a bona fide resident of the
But, as a default and in the meantime, that the minor province where the petition is filed for at least three (3) years
children cannot choose, Art. 176 of the Family Code allows prior to the date of such filing;
the illegitimate children will bear the surname of the mother. (b) The cause for which the change of the petitioner's name is
Finally, with respect to parental authority, this case discusses sought;
the general rule on parental authority with respect to the (c) The name asked for.
illegitimate children, they shall be under the parental Section 3. Order for hearing. — If the petition filed is sufficient
authority of the mother. It is because the best interest of the in form and substance, the court, by an order reciting the
child, no other care can be given to children better than that; purpose of the petition, shall fix a date and place for the hearing
than the care of the mother. That is a presumption, even if thereof, and shall direct that a copy of the order be published
in relation to the tender age presumption, no child below before the hearing at least once a week for three (3) successive
seven years of age will be separated from the mother, unless weeks in some newspaper of general circulation published in the
compelling reason exist that will warrant or show that the province, as the court shall deem best. The date set for the
mother is unfit to have custody over the children. In this hearing shall not be within thirty (30) days prior to an election
case, the Supreme Court followed the general rule. Since nor within four (4) month after the last publication of the notice.
there was no showing that Grande was unfit or since no Section 4. Hearing. — Any interested person may appear at
compelling reason to existed why the minor children should the hearing and oppose the petition. The Solicitor General or
be separated from the mother, illegitimate children should the proper provincial or city fiscal shall appear on behalf of the
be under the parental authority of the mother. Government of the Republic.
Section 5. Judgment. — Upon satisfactory proof in open court
IN COMPARISON WITH CASE OF MASBATE: on the date fixed in the order that such order has been
In Masbate, there was a question: Was there a sufficient published as directed and that the allegations of the petition are
compelling reason to deprive the mother of parental true, the court shall, if proper and reasonable cause appears for
authority over the children? More importantly, there was a changing the name of the petitioner, adjudge that such name
question of preference: In default of the mother since they be changed in accordance with the prayer of the petition.
are illegitimate, to whom should the substitute parental Section 6. Service of judgment. — Judgments or orders
authority should be exercise? It must be the rendered in connection with this rule shall be furnished the civil
grandparents. In this case, it was the father, who according registrar of the municipality or city where the court issuing the
to the Supreme Court had actual custody over the children. same is situated, who shall forthwith enter the same in the civil
The Supreme Court held, with respect to the father register.
exercising substitute parental authority, that was allowed
because the father was the actual custodial, and there was RULE 108
an allegation of the existence of the compelling reason Cancellation or Correction of Entries In The Civil
against the mother. Registry
Section 1. Who may file petition. — Any person interested in
 Know when to apply these cases (Masbate case and Grande any act, event, order or decree concerning the civil status of
case), because the issue on parental authority is very broad; persons which has been recorded in the civil register, may file
parental authority of themselves, parental authority of a verified petition for the cancellation or correction of any entry
guardian, substitute parental authority. relating thereto, with the Court of First Instance of the province
 These issues in parental authority, either over the person of where the corresponding civil registry is located.
the minor or over the property of the minor; they are issues, Section 2. Entries subject to cancellation or correction. — Upon
separate and distinct from the surname. good and valid grounds, the following entries in the civil register
 The usage of a surname is a separate right, from the right may be cancelled or corrected: (a) births: (b) marriage; (c)
to exercise parental authority. deaths; (d) legal separations; (e) judgments of annulments of
 That is why do not think, that just because parental marriage; (f) judgments declaring marriages void from the
authority is given in favor of the father and those children beginning; (g) legitimations; (h) adoptions; (i)
are illegitimate children, it will not automatically mean that acknowledgments of natural children; (j) naturalization; (k)
it must be the surname of the father that the children shall election, loss or recovery of citizenship; (l) civil interdiction; (m)
bear because there are requisites and these are different judicial determination of filiation; (n) voluntary emancipation of
provisions. a minor; and (o) changes of name.
 TO MAKE A CLEAR DISTINCTION BETWEEN THESE Section 3. Parties. — When cancellation or correction of an
TOPICS: FILIATION, SUPPORT, PARENTAL entry in the civil register is sought, the civil registrar and all
AUTHORITY, and SURNAME. But all of them have persons who have or claim any interest which would be affected
relationship with filiation. thereby shall be made parties to the proceeding.
Section 4. Notice and publication. — Upon the filing of the
UNDER THE RULES OF PROCEDURE: petition, the court shall, by an order, fix the time and place for
the hearing of the same, and cause reasonable notice thereof
RULE 103 to be given to the persons named in the petition. The court shall
Change of Name also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
Section 1. Venue. — A person desiring to change his name province.
shall present the petition to the Court of First Instance of the Section 5. Opposition. — The civil registrar and any person
province in which he resides, or, in the City of Manila, to the having or claiming any interest under the entry whose
Juvenile and Domestic Relations Court. cancellation or correction is sought may, within fifteen (15) days
Section 2. Contents of petition. — A petition for change of from notice of the petition, or from the last date of publication
name shall be signed and verified by the person desiring his of such notice, file his opposition thereto.
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Section 6. Expediting proceedings. — The court in which the custody of the illegitimate child. Since it appears on the face
proceeding is brought may make orders expediting the of the subject birth certificates that the mother did not sign
proceedings, and may also grant preliminary injunction for the the documents, the local civil registrar.
preservation of the rights of the parties pending such
proceedings. CHUA vs. REPUBLIC
Section 7. Order. — After hearing, the court may either dismiss The Supreme Court ruled that in order to avoid confusion,
the petition or issue an order granting the cancellation or the last name from “Kiat” to “Chua” must be allowed because
correction prayed for. In either case, a certified copy of the for one, Eric has been known to the public and to the
judgment shall be served upon the civil registrar concerned who community at large as “Chua,” and second, all of his
shall annotated the same in his record. credentials and all of his official documents bore the
last name “Chua” except for his Certificate of Live
GAN vs. REPUBLIC Birth.
The determination of the proper usage of the surname was Hence, if there will be a compulsion from the Court
not determined at the time of the filing of the action because that Eric will be forced to use the name “Kiat,” then
at that time, when the action was filed the family code was that would ultimately force Eric to change and alter all
already effective. The determination of one’s surname those documents to conform with the Certificate of
will be properly in relation to the governing law at the Live Birth.
time of their birth because at birth the surname will be In Republic v. Coseteng-Magpayo, the Court enumerated
determined in the Records of Birth. In this case, the Supreme several recognized grounds that can be invoked by a person
Court use the provisions of the New Civil Code, not the desirous of changing his name, to wit:
provisions under the Family Code. a) when the name is ridiculous, dishonorable or
Assuming that Emilita was born during the Family Code was extremely difficult to write or pronounce;
already effective. Question: May Emilita still seek the b) when the change results as a legal consequence such
correction of her surname. Answer: NO, because of absence as legitimation;
of any proof showing that she was acknowledge by the c) when the change will avoid confusion;
father. That fact did not appear in the certificate of live birth. d) when one has continuously used and been known
Obviously, being an illegitimate child, by default must bear since childhood by a Filipino name, and was unaware
the surname of Basilio. of alien parentage;
e) a sincere desire to adopt a Filipino name to erase signs
 Question: What is the remedy or what instance could of former alienage, all in good faith and without
happen where Emilita may be allowed to change her prejudicing anybody; and
surname? f) When the surname causes embarrassment and there
Answer: LEGITIMATED is no showing that the desired change of name was for
 This case idea, that not everything can be change at your a fraudulent purpose or that the change of name
whim. Even if you do rely on the proper procedure; even if would prejudice public interest.
you do apply on the proper remedy, there must be sufficient
ground which exist, which will warrant the change of name. REPUBLIC vs. GALLO
Even if you avail the proper remedy but the grounds do not This case was decided prior to RA 10172. Here, the Supreme
exist, then you cannot change your name. Court held that with respect to the change in the entry of
Gallo’s biological sex, it shall be governed by Rule 108 as RA
REPUBLIC vs. SALI 9048 does not recognize clerical errors pertaining to one’s
The Supreme Court ruled that in this case, the petition, sex or gender as under the latter, such was considered not
insofar as it prayed for the change of Sali’s first name, was as a mere clerical error or summary correction but a
not within the RTC's primary jurisdiction. It was improper substantial correction. Hence, since it is substantial at that
because the remedy should have been administrative, time—before the passage of RA 10172—then it must be
i.e., filing of the petition with the local civil registrar corrected under Rule 108 and not Rule 103 as the latter
concerned. For failure to exhaust administrative pertains to substantial changes in the name.
remedies, the RTC should have dismissed the petition Article 376 and Article 412 requires judicial authority before
to correct Sali's first name. any person may change his name or any entry in the civil
register.
BARCELOTE vs. REPUBLIC Thus, filing a case immediately with the Court, if what
Section 5 of Act No. 3753, otherwise known as the Civil is the governing law is RA 9048, would be improper. If
Registry Law, states: that is a clerical error, and if it is indeed alleged as
In case of an illegitimate child, the birth certificate such, an direct action in court is improper. Rather,
shall be signed and sworn to jointly by the parents of what must be done is to exhaust all remedies before
the infant or only the mother if the father refuses. In administrative bodies, such as with the City Civil
the latter case, it shall not be permissible to state or reveal Register, Municipal Civil Register, or the Consular
in the document the name of the father who refuses to General.
acknowledge the child, or to give therein any information
by which such father could be identified. REPUBLIC vs. VIRGIE TIPAY
Thus, it is mandatory that the mother of an illegitimate FACTS: Virgel sought the correction of several entries in his
child signs the birth certificate of her child in all cases, birth certificate. In his birth certificate issued respectively by
irrespective of whether the father recognizes the child as his the Local Civil Registrar of Governor Genoroso, Davao
or not. The only legally known parent of an illegitimate child, Oriental and the National Statistics office, reflect his gender
by the fact of illegitimacy, is the mother of the child who as “FEMALE” and his first name as “VIRGIE.” It further
conclusively carries the blood of the mother. The mother appears that the month and day of birth in the LCR’s copy
must sign and agree to the information entered in the birth was blank, while in the NSO-issued birth certificate indicates
certificate because she has the parental authority and that he was born on May 12, 1976. He sought the correction
29
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of the entries in his birth certificate the following: (a) his Art. 383. In the appointment of a representative, the spouse
gender from “FEMALE” to “MALE;” (b) his first name, from present shall be preferred when there is no legal separation.
“VIRGIE” to “VIRGEL;” and (c) his month and date of birth to If the absentee left no spouse, or if the spouse present is a
“FEBRUARY 25, 1976.” minor, any competent person may be appointed by the court.
SC: The RTC was correct in taking cognizance of the petition (183a)
for correction of entries in Virgel’s birth certificate.
RA 9048 defined clerical or typographical error as a mistake CHAPTER 2
committed in the performance of clerical work, which is Declaration of Absence
harmless and immediately obvious to the understanding. It
was further amended in 2011, when RA 10172 was passed Art. 384. Two years having elapsed without any news about
to expand the authority of local civil registrars and the Consul the absentee or since the receipt of the last news, and five
General to make changes in the day and month in the date years in case the absentee has left a person in charge of the
of birth, as well as in the recorded sex of a person when it is administration of his property, his absence may be declared.
patently clear that there was a typographical error or mistake (184)
in the entry.
Unfortunately, however, when Virgel filed the petition for Art. 385. The following may ask for the declaration of
correction with the RTC in 2009, RA 10172 was not yet in absence:
effect. As such, to correct the erroneous gender and (1) The spouse present;
date of birth in Virgel’s birth certificate, the proper (2) The heirs instituted in a will, who may present an
remedy was to commence the appropriate action authentic copy of the same;
adversarial proceedings with the RTC, pursuant to (3) The relatives who may succeed by the law of intestacy;
Rule 108 of the Rules of Court. The changes in the entries (4) Those who may have over the property of the absentee
pertaining to the gender and date of birth are indisputably some right subordinated to the condition of his death. (185)
substantial corrections, outside the contemplation of a
clerical or typographical error that may be corrected Art. 386. The judicial declaration of absence shall not take
administratively. effect until six months after its publication in a newspaper of
general circulation. (186a)
RA 9048 – AN ACT AUTHORIZING THE CITY OR
MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL CHAPTER 3
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME Administration of the Property of the Absentee
OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED
OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE Art. 387. An administrator of the absentee’s property shall
ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE be appointed in accordance with article 383. (187a)
PHILIPPINES
Art. 388. The wife who is appointed as an administratrix of
RA 10172 – AN ACT FURTHER AUTHORIZING THE CITY
the husband’s property cannot alienate or encumber the
OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
husband’s property; or that of the conjugal partnership,
GENERAL TO CORRECT CLERICAL OR TYPOGRAPHICAL
without judicial authority. (188a)
ERRORS IN THE DAY AND MONTH IN THE DATE OF
BIRTH OR SEX OF A PERSON APPEARING IN THE CIVIL
Art. 389. The administration shall cease in any of the
REGISTER WITHOUT NEED OF A JUDICIAL ORDER,
following cases:
AMENDING FOR THIS PURPOSE REPUBLIC ACT 9048
(1) When the absentee appears personally or by means of
an agent;
TITLE XIV
(2) When the death of the absentee is proved and his testate
Absence
or intestate heirs appear; and
(3) When a third person appears, showing by a proper
CHAPTER 1
document that he has acquired the absentee’s property by
Provisional Measures in Case of Absence
purchase or other title.
In these cases the administrator shall cease in the
Art, 381. When a person disappears from his domicile, his
performance of his office, and the property shall be at the
whereabouts being unknown, and without leaving an agent
disposal of those who may have a right thereto. (190)
to administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person
 For paragraph 1, if the absentee personally reappears or
to represent him in all that may be necessary.
even be represented through an agent, the administration
This same rule shall be observed when under similar
shall cease.
circumstances the power conferred by the absentee has
 For paragraph 2, if the absentee is proven dead, the legal
expired. (181a)
status of absenteeism will not apply because the absentee
would no longer be absent but dead. Proof may be
382. The appointment referred to in the preceding article
established through a death certificate.
having been made, the judge shall take the necessary
 For paragraph 3, a third party has acquired the absentee’s
measures to safeguard the rights and interests of the
property either by onerous or gratuitous title.
absentee and shall specify the powers, obligations and
remuneration of his representative, regulating them,
CHAPTER 4
according to the circumstances, by the rules concerning
Presumption of Death
guardians. (182)
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Art. 390. After an absence of seven years, it being unknown Art. 396. Those who may have entered upon the inheritance
whether or not the absentee still lives, he shall be presumed shall appropriate the fruits received in good faith so long as
dead for all purposes, except for those of succession. the absentee does not appear, or while his representatives
The absentee shall not be presumed dead for the purpose of or successors in interest do not bring the proper actions.
opening his succession till after an absence of ten years. If (198)
he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his TADEO-MATIAS vs. REPUBLIC
succession may be opened. (n) The Supreme Court denied the appeal as the said case should
not have been filed on the basis of Art. 41 of the Family Code
 This pertains to instances of presumptive death, Art. 390 as the petitioner do not wish to remarry and is subject to
applies for all purposes except for succession or remarriage. Articles 390 and 391 of the Civil Code. Considering that such
For example, when the law speaks of all purposes under Art. is only for the declaration that his husband who is a member
390, a claim for death benefits or insurance is applicable. of the military is already dead.
In view of the foregoing circumstance, the Court deems it
Art. 391. The following shall be presumed dead for all necessary to issue the following guidelines culled from
purposes, including the division of the estate among the relevant law and jurisprudential pronouncements to aid the
heirs: otiteo public, PVAO and the AFP in making or dealing with claims of
(1) A person on board a vessel lost during a sea voyage, or death benefits which are similar to that of the petitioner:
an aeroplane which is missing, who has not been heard of 1. The PVAO and the AFP can decide claims of death
for four years since the loss of the vessel or aeroplane; benefits of a missing soldier without requiring the
(2) A person in the armed forces who has taken part in war, claimant to first produce a court declaration of the
and has been missing for four years; presumptive death of such soldier. In such claims, the
(3) A person who has been in danger of death under other PVAO and the AFP can make their own determination,
circumstances and his existence has not been known for four on the basis of evidence presented by the claimant,
years. (n) whether the presumption of death under Articles 390
and 391 of the Civil Code may be applied or not. It
 For purposes of remarriage in regard to presumptive death, must be stressed that the presumption of death
this is where you apply Art. 41 of the Family Code. under the Articles 390 and 391 of the Civil Code
 Under Art. 390 and 391, take note that no judicial arises by operation of law without need of a court
proceeding is necessary as the presumption of the law declaration, once the factual conditions
already attaches insofar as the conditions or requisites are mentioned in the said articles are established.
shown to exist. Whereas Art. 384 and Art. 41 of the Family Hence, requiring the claimant to further secure a court
Code require declaration in order to establish presumptive death of
a missing soldier is not proper and contravenes
Art. 392. If the absentee appears, or without appearing his established jurisprudence on the matter.
existence is proved, he shall recover his property in the 2. In order to avail of the presumption, therefore, the
condition in which it may be found, and the price of any claimant need only to present before the PVAO or
property that may have been alienated or the property appropriate office of the AFP, as the case may be, any
acquired therewith; but he cannot claim either fruits or rents. evidence which shows that years and/or under the
(194) circumstances prescribed under the Articles 390 and
391 of the Civil Code, obviously, the evidence referred
CHAPTER 5 to here, excludes a court declaration of presumptive
Effect of Absence Upon the Contingent Rights of the death.
Absentee 3. The PVAO or the AFP as the case may be may then
weigh the evidence submitted by the claimant and
Art. 393. Whoever claims a right pertaining to a person determine their sufficiency to establish the requisite
whose existence is not recognized must prove that he was factual conditions specified under Articles 390 and 391
living at the time his existence was necessary in order to of the Civil Code in order for the presumption of death
acquire said right. (195) to arise. If the PVAO or the AFP determines that the
evidence submitted by the claimant is sufficient, they
Art. 394. Without prejudice to the provision of the preceding should not hesitate to apply the presumption of death
article, upon the opening of a succession to which an and pay the latter’s claim.
absentee is called, his share shall accrue to his coheirs,
unless he has heirs, assigns, or a representative. They shall TITLE X
all, as the case may be, make an inventory of the property. Funerals
(196a)
Art. 305. The duty and the right to make arrangements for
Art. 395. The provisions of the preceding article are the funeral of a relative shall be in accordance with the order
understood to be without prejudice to the action of petition established for support, under article 294. In case of
for inheritance or other rights which are vested in the descendants of the same degree, or of brothers and sisters,
absentee, his representatives or successors in interest. the oldest shall be preferred. In case of ascendants, the
These rights shall not be extinguished save by lapse of time paternal shall have a better right.
fixed for prescription. In the record that is made in the
Registry of the real estate which accrues to the coheirs, the Art. 306. Every funeral shall be in keeping with the social
circumstance of its being subject to the provisions of this position of the deceased.
article shall be stated. (197)
Art. 307. The funeral shall be in accordance with the
expressed wishes of the deceased. In the absence of such
31
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expression, his religious beliefs or affiliation shall determine
the funeral rites. In case of doubt, the form of the funeral Art. 409. In cases of legal separation, adoption,
shall be decided upon by the person obliged to make naturalization and other judicial orders mentioned in the
arrangements for the same, after consulting the other preceding article, it shall be the duty of the clerk of the court
members of the family. which issued the decree to ascertain whether the same has
been registered, and if this has not been done, to send a
Art. 308. No human remains shall be retained, interred, copy of said decree to the civil registry of the city or
disposed of or exhumed without the consent of the persons municipality where the court is functioning. (n)
mentioned in articles 294 and 305.
Art. 410. The books making up the civil register and all
Art. 309. Any person who shows disrespect to the dead, or documents relating thereto shall be considered public
wrongfully interferes with a funeral shall be liable to the documents and shall be prima facie evidence of the facts
family of the deceased for damages, material and moral. therein contained. (n)
Art, 310. The construction of a tombstone or mausoleum Art. 411. Every civil registrar shall be civilly responsible for
shall be deemed a part of the funeral expenses, and shall be any unauthorized alteration made in any civil register, to any
chargeable to the conjugal partnership property, if the person suffering damage thereby. However, the civil
deceased is one of the spouses. registrar may exempt himself from such liability if he proves
that he has taken every reasonable precaution to prevent the
VALINO vs. ADRIANO unlawful alteration. (n)
LANDMARK CASE INVOLVING THE PROVISIONS OF
FUNERALS Art. 412. No entry in a civil register shall be changed or
Not all wishes of the dead must be complied with, even if you corrected, without a judicial order. (n)
respect the dead. With respect to funeral rights, it is a right
and duty to recognize under the law. This right and duty Art. 413. All other matters pertaining to the registration of
cannot be carried out by anyone, at the will or at the decision civil status shall be governed by special laws. (n)
of the decedent himself, especially in this case that the one
who died was a lawyer. The lawyer should have known that SUMMARY OF CIVIL REGISTER
although there are formalities that the law may allow the  Under Art. 407 provides that events and judicial decrees
wishes of the decedent to govern the manner by which he or concerning the civil status of persons, they have to be
she will be buried. These wishes are not absolute, and must recorded in the civil register. So what are these matters that
not be contrary to law otherwise, it would render nugatory ought to be recorded in the civil register? You have to look
Article 305 providing that the arrangements for the funeral at Art. 408. Look at your birth certificate.
is not only a duty but also a right. In carrying out this right,  So, what happens when there are controversies in cases of
the right is not absolute such that it must not be contrary to legal separation, adoption, naturalization and other judicial
law. The Court held that despite decedent making a wish and orders? Take note that it shall be the duty of the clerk of the
making it express, that wish or the manner by which the court which issued the decree to ascertain whether the same
funeral arrangements will be carried out, it should not be has been registered, and if this has not been done, to send
contrary to law such that those persons who have the right a copy of said decree to the civil registry of the city or
and duty to make the arrangements should not be deprived municipality where the court is functioning. So under Art.
of such a right. The persons who has a right to make such 410, the books making up the civil register and all
arrangements are enumerated in Article 199 of the Family documents relating thereto shall be considered public
Code. documents and shall be prima facie evidence of the facts
therein contained. What are their probative value? They are
TITLE XVI prima facie evidence of the facts therein contained which
Civil Register means that the quantum of proof, which if uncontroverted,
may support the conclusion or judgement to which they
Art. 407. Acts, events and judicial decrees concerning the pertain. Prima facie is not conclusive. It may still be assailed.
civil status of persons shall be recorded in the civil register.
(325a) SILVERIO vs. REPUBLIC
Sexual reassignment surgery will not become a basis for
Art. 408. The following shall be entered in the civil register: change of name and more importantly to change one's
(1) Births; gender, unless there is a law to that effect allowing that, then
(2) marriages; that is the time where you can apply Rule 108. But even
(3) deaths; under the current laws, if R.A 10172 was effective during the
(4) legal separations; time that Rommel filed the petition, still the petition should
(5) annulments of marriage; be denied, because R.A NO. 10172 and 9048 are only
(6) judgments declaring marriages void from the beginning; applicable in instances of clerical or typographical error.
(7) legitimations; Obviously, there was no error that Rommel was indicated as
(8) adoptions; male before who is now alleged to be a female because of
(9) acknowledgments of natural children; his sexual reassignment surgery. Nevertheless, that is not a
(10) naturalization; basis to change gender under Rule 108/103
(11) loss, or
(12) recovery of citizenship; REPUBLIC vs. CAGANDAHAN
(13) civil interdiction; In Silverio, it was voluntary on the part of Rommel to
(14) judicial determination of filiation; undergo sexual reassignment surgery to conform Rommel's
(15) voluntary emancipation of a minor; and thinking that she or he was a woman trapped in a man's
(16) changes of name. (326a) body. To actualize that experience, Rommel
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(4th Exam Coverage)
underwent sexual reassignment surgery which was not assailed because as presented, there was no marriage
"natural" because that was Rommel's choice. The Court actually to speak of. This does not collaterally attack a
cannot give basis or support a change in one's first name and marriage which exists and is alleged to be void, because in
sex entry in the Civil Register. But if the change is not this case there no marriage at all, it was alleged to be a clear
through sexual reassignment surgery, the change is natural clerical error. Given that error, the recourse was Rule 108
because of some pre-existing condition, such as Congenital because it was not necessarily to cancel that entry and in
adrenal hyperplasia on the part of Jennifer Cagandahan, then that cancellation of entry, it was for the purpose in order that
it may be allowed because there was no supervening Olaybar may contract a subsequent marriage. So, according
intervention from any medical treatment or procedure to to the Court, in allowing the correction of the subject
change one's sex. So, that's the distinction between Silverio certificate of marriage by cancelling the wife portion thereof,
and Cagandahan. Again, in Cagandahan, it was natural to the trial court did not in any way declare the marriage as
develop male hormones, it was uncontrolled. It is obvious void because there was no marriage to speak of. The
that the ruling in Cagandahan may be apply only in similar language of the Court is lose because is would seem that the
instances, where a person is afflicted with some condition Court is saying that the declaration of marriage as void
any be not necessarily congenital adrenal hyperplasia but requires prior marriage before it can be declared as void.
some medical condition which will naturally allow them When you know Articles 35-38, void marriages are legally
assume a sex identity different from the sex they were born inexistent from the very beginning. This is a case where to
with. In that case, the Court held that the reckoning point of reflect the fact that there was no marriage at all, it was
the identification of one's sex will not be at the time of birth necessary to cancel that entry in the civil register, and in so
because that is where it is deceptive, it must be at the time cancelling since it involves a substantial change in the entry,
that they reach the age of majority and elect, because one which involves status of being married or not, this is the
technically they have both sexes, they just have to elect reason why Rule 108 is applicable.
which one they want, here Jennifer happens to elect the male
because he identify himself as male because of the natural
development of his body. The Court said that in conformity
with the change in entry from female to male, it is only
biological that Jennifer may be allowed to change first name
from Jennifer to Jeff.
CORPUZ vs. STO. TOMAS

Remember that Rule 108 talks about or enumerates one of
the grounds, status of persons, so it will indicate their if you
are single or married. Since you are divorce abroad,
naturally, from married you will become single again in the
Philppines. That is why the foreign divorce decree and all the
requirements under Rule 132 Section 25-26 must be
presented in Court. The proceeding that you will follow in
court to enforce that foreign divorce decree, must be in
relation to Rule 108 because it is rule 108 which caters to
substantial changes in the entries in the Civil registry. This is
the entry pertaining to marital status. The Court held that
the alien spouse cannot claim any right under the second
par. of Article 26 by way of a substantive right because this
right is established in favor of Filipino spouse. Since Article
26(2) pertains to the legal capacity that Filipino spouse to
remarry, the alien spouse cannot claim that right because
this right only pertains to Filipino spouses.
IWASAWA vs. GANGAN

When the law speaks of prima facie evidence, this means
that facts stated therein which remain unrebutted will be
taken or presented as evidence until they are sufficiently
contracted or they are rebutted. Nevertheless, since they are
prima facie evidence, it may be relied on, evidences which
are sufficient to support the conclusion to which the facts
relay. That is why since the allegation was there bigamy,
these entries in the civil registrar are prima facie such that it
may be relied upon to support the conclusion that indeed
there was bigamy because of contracting the previous
marriage without dissolving the prior marriage.
REPUBLIC vs. OLAYBAR

Take note that the reason why Rule 108 was applicable. The
issue was it would seem that this is a collateral attack on the
validity of one's marriage because as indicated in the
document, it would seem that Olaybar was previously
married to some Korean. Nevertheless, the Court held that
this is not an instance where the validity of marriage is
33

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Persons and Family Relations Reviewer

(4th Exam Coverage)

Art. 180. The effects of legitimation shall retroact to the time

Art. 189. Adoption shall have the following effects:

LANDINGIN vs. REPUBLIC

CASTRO vs. GREGORIO

BARTOLOME vs. SSS

 Petitions Covered REPUBLIC vs. COURT OF APPEALS

CORPUZ vs. STO. TOMAS

IWASAWA vs. GANGAN

REPUBLIC vs. OLAYBAR

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