2008 Updates in Family Law

8/11/2019 2008 Updates in Family Law

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SURVEY OF THE RECENT

LAWS AND JURISPRUDENCEIN FAMILY LAWS

BY:

ALEX L. MONTECLAR

Dean

College of Law

University of San Carlos


2/117

RECENT LAWS AND SC RULES

WITH SALIENT FEATURES


3/117

R.A. 9255

An Act AllowingIllegitimate Children to

Use the Surname of

their Father, amendingArticle 176 of the Family

Code


4/117

Remember that

It allows illegitimate children to usethe surname of their fatherprovided their filiation has beenexpressly recognized through thefollowing documents:

Record of Birth in the Civil Registrar

Admission in Public Documents

Admission in Private Handwritten

Instruments

It amends Article 176 of the FamilyCode and sets aside the SC ruling inMossesgeld vs. CA.


5/117

R.A. 9262

An Act Defining Violence Against Women

and Children, Providing Protective

Measures for Victims


6/117

It says that.

Violence must be AGAINST the Wife, ex-

Wife, a Woman with Whom the Person has

Sexual Relationship, their children, etc.

Specific on Acts Resulting to Physical,

Sexual, Psychological Harm, or Economic

Abuse, INCLUDING threats thereof.

Jurisdiction is with RTC designated as the

Family Court.

Protection Order is issued for the purpose of

preventing further acts of violence againstwomen or child. It may be issued by the

Barangay Captain (BPO) or the Court

(TPO) or (PPO)


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Protection Order shall prohibit respondent

from harming or communicating with the

petitioner. It may include removal fromthe residence of the petitioner and staying

away from the residence, school, and place

of employment of the petitioner at specified

distance.

Respondent may be ordered to Support the

Petitioner. An appropriate percentage of

the income or salary of the respondent maybe withheld by the Court and

AUTOMATICALLY remitted to the

victim.


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PPO may be filed by

Offended Party

Parents or guardians of the offended party

DSWD

Police Officers

Punong Barangay

Lawyer, counsel, therapist

At least 2 concerned responsible citizens.

Violence Against Women and Children is a Public

Crime.

In cases of Legal Separation, where violence is

alleged as a ground, Art. 58 of the FC shall not

apply.


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Victims Who Are Found to Be Suffering

from Battered Woman Syndrome do not

incur criminal or civil liability even in theabsence of any element of self defense.

Victim shall be entitled to custody and

support.

Barangay Captain or the Court hearing the

Application for Protection Order should not

Attempt to force or unduly Influence

Petitioner to Compromise or Abandon herClaim.

Victim is entitled to Paid Leave of Absence

up to Ten Days in Addition to Other Paid

Leaves under the Labor Code


10/117

A.M. 02-11-10-SC

Rule on Declaration of Absolute Nullity

and Annulment of Voidable Marriages


11/117

ONLY the Husband and the Wife can file aPetition for Declaration of Absolute Nullity.

In case of Voidable Marriages, the action may be

filed by the parties or their parents or guardiansdepending upon the grounds.

A petition must be verified and signed

PERSONALLY by the petitioner.Copy of the Petition MUST BE SERVED to theSol. Gen and Office of the Prosecutor WITHINFIVE (5) DAYS from filing and submit proof of

compliance.

I t says that:


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No Motion to Dismiss except on the Ground ofLack of Jurisdiction over the subject matter orover a person shall be allowed.

Pre-trial is Mandatory

Trial must be done PERSONALLY by the Judge

Decision must state that the Decree of Nullity or

Annulment shall be issued ONLY afterCOMPLIANCE WITH ARTICLES 50 and 52.

NO appeal unless a Motion for Reconsideration orNew Trial was filed.

I t fur ther says that:


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Liquidation, Partition, and Distribution, custody,support of common children, and the Delivery of

Presumptive Legitime shall Take Place AFTERENTRY OF JUDGMENT.

It is the DUTY OF THE PREVAILING PARTY to

CAUSE THE REGISTRATION of the DECREEof Absolute Nullity or Annulment of Marriage.

I t f inal ly says that:


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A.M. NO. 02-11-11-SC

RULE ON LEGAL SEPARATION


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It says that:

Petition may be DENIED or DISMISSED if any ofthe GROUNDS stated in Art. 56 FC is present.

Donations made by innocent spouse in favorof the Offending Spouse may be Revoked.In case of RECONCILIATION, the Spouses shallFile a JOINT MANIFESTATION under OATH with

the court.The FORMER property regime may be

REVIVED or a NEW ONE may be adopted.


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A.M. 02-11-12 SC

RULE ON PROVISIONAL ORDER


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It says that. This Rule Refers to the Provisional Orders issued by the court

during the PENDENCY of the case for Declaration of Nullity ofMarriage, Annulment of Marriage, and Legal Separation.

The provisional Orders may refer to Spousal Support, ChildSupport, Visitation Rights, Hold Departure Order, and Order ofProtection.

These provisional orders may be issued by the court motu propioor upon application under oath by any party with or without a

bond.

Hold Departure Order may be issued by the Court motu proprio

or upon application under oath to prevent the departure of thechild of the parties during the pendency of the case.

Order of Protection may be issued by the Court to prevent a partyfrom Harassing or Intimidating the other party or child, or to stayaway from the other party.


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A.M. 02-11-12 SC

RULE ON PROVISIONAL ORDER


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It says that..

It can be filed by any person whohave rightful custody of the minor.

Motion to Dismiss is NOT allowed.

Answer must be VERIFIED and filedwithin FIVE days from RECEIPT Ofsummons.

After Answer or Expiration of the

Period, the Court may Require aSocial Worker to CONDUCT a studyof the Child and the Parties andSubmit Report.


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It further says that..

Pre-trial is MANDATORY. During

the Pre-trial the case may be referred

to MEDIATION.

After Answer, the court may award

PROVISIONAL ORDER awarding

custody of the child. Doing so, the

court shall consider the BESTINTEREST OF THE CHILD.

HOLD DEPARTURE ORDER may

be issued MOTU PROPIO


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It finally says that..

The Court may Issue Protection Order.

Judgment may award custody of the child to

EITHER PARENTS or TO OTHER PERSON, if

both are unfit.

NO APPEAL shall be allowed unless the appellantfiled a MOTION FOR RECON or NEW TRIAL

within 15 DAYS from notice of judgment.

APPEAL is by Notice of Appeal.

Petition for Habeas Corpus involving CUSTODYOF MINOR must be FILED in the FAMILY

COURT. The WRIT will be ENFORCEABLE

ONLY in the JUDICIAL REGION to which the

FAMILY COURT belongs.


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UPDATES IN JURISPRUDENCE


24/117

MARRIAGE


25/117

Silverio vs. Republic (G.R. No. 174689, Oct.

22, 2007) Sex reassignment or sex change

does not make a man into awoman.

The sex of a person is determinedat the time of birth. There is yet nolaw legally recognizing sex

reassignment, thus, thedetermination of a persons sex atthe time of his birth, if not attendedby error, is immutable.


26/117

Morigo vs. People (G.R. No. 145226, Feb.

6, 2004)

Absence of marriage

ceremony renders the

marriage null and void


27/117

Sevilla vs. Cardenas

(G.R. 167684, July 31, 2006) No marriage license certification

issued by the Local Civil

Registrar must categorically

state that the document does not

exist in his office or that it could

not be found in the register

despite diligent search.

Marriage license

xxxx xxxxx

Xxxxxxxx

xxxxxx


28/117

Alcantara vs. Alcantara

(G.R. No. 167746, Aug. 28, 2007) Absence of marriage

license renders the

marriage void. The

absence must be

apparent on the

marriage contract.

Marriage license

xxxx xxxxx

Xxxxxxxx

xxxxxx


29/117

Villanueva vs. Court of Appeals.

(505 SCRA, Oct. 27, 2006) A threat from NPA on petitioner to marry

respondent is not so overwhelming as to

deprive him of the will to entervoluntarily the marriage thus, it is not

sufficient to annul the marriage .


30/117

Abunado vs. People (G.R. No. 159218,

March 30, 2004) Annulment of marriage is not a

prejudicial question to bigamy case.


31/117

Duncan vs. Glaxo (G.R. No. 162994, Sept.

17, 2004) Marriage prohibition in employment

contract is valid as it is reasonable under

the circumstance because relationship ofemployees of competing companies may

prejudice the interest of the company.


32/117

Star Paper Corporation vs. Simbol

(G.R. No. 164774, April 12, 2006) The company policy provides that no

employee of the company can marry each

other. The company policy is an invalidexercise of management prerogative for

the failure of the employer to present any

evidence of business necessity of the no-

spouse employment policy. Absence ofsuch a bona fide occupational

qualification renders the policy invalid.


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Alvarez vs. Ramirez

(G.R. No. 143439, Oct. 14, 2005) Marital disqualification rule does not

apply if the relationship of the spouses is

already so strained that there is no moreharmony to be preserved nor peace and

tranquility which may be disturbed.


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35/117

Delgado Vda. De la Rosa vs. Heirs of

Damian (January 27, 2006)

Absence of marriage certificate in the

civil registry does not conclusively prove

that there was no marriage. If a man and

woman have lived together as husband

and wife for a long period they are

presumed to have entered into a lawful

contract of marriage. Marriage contract

is not the only evidence of marriage as itcan also be proven by other documents

especially if they have already been

living together as husband and wife.


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De Castro vs. De Castro

(G.R. No. 160172, Feb. 13, 2008) The validity of a void marriage may be

collaterally attacked. Thus, even in action

for Support, the court may pass upon thevalidity of the marriage so long as it is

essential to the determination of the case.


37/117

Ancheta vs. Ancheta

(G.R. No. 145370, March 4, 2004) In cases of Declaration of Nullity of

Marriage and Annulment of Mariage, no

declaration of default can be issued bythe court despite the failure of the

defendant to file answer.


38/117

Lam vs. Chua

(G.R. No. 131286, March 18, 2004) The court cannot grant the nullity of

marriage on the basis of evidences

presented but not alleged in thecomplaint. However, since the defendant

did not question it, then he is now

estopped to question it.


39/117

Tribiana vs. Tribiana

(G.R. No.137359, Sept. 13, 2004) The condition precedent under Art. 151

of the Family Code that in a suit between

members of the same family, there mustbe an allegation of earnest effort to

compromise, is deemed complied with

when the parties have passed through the

barangay level for conciliation as shownby the certification issued by the

barangay.


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ARTICLE 26

OF THE FAMILY CODE


41/117

Republic vs. Orbecido III

(G.R. No. 154380, Oct. 5, 2005) A Filipino spouse who acquired a foreign

nationality and thereafter divorced the

other spouse capacitates the latter to alsoremarry.


42/117

PSYCHOLOGICAL INCAPACITY

(Art. 36 F.C.)


43/117

Dedel vs. C.A.

(G.R. No. 151867, January 29, 2004) Personality disorder, sexual infidelity

or perversion and abandonment do not

constitute psychological incapacity.Likewise, trial court has no jurisdiction to

dissolve church marriage.


44/117

Tenebro vs. C.A.

(G.R. No. 150758, Feb. 18, 2004) Judicial declaration of nullity of the

second marriage on the ground of

psychological incapacity is not a defensein the bigamy case


45/117

Republic vs. Quintero-Hamano

(G.R. No. 149498, May 20, 2004) Art. 36 applies to mixed marriage. There

is no difference between a Filipino

spouse and an alien spouse in so far aspsychological incapacity is concerned.


46/117

Corpus vs. Ochotorena

(A.M. RTJ 04-1861, July 30, 2004) No collusion report of the Public

Prosecutor is a condition sine qua non for

further proceedings to go on indeclaration of nullity of marriage cases.


47/117

Carating-Siayungco vs. Siayungco (G.R.

No. 158896, Oct. 29, 2004) Irreconcilable differences and

conflicting personalities do not

constitute psychological incapacity. An

unsatisfactory marriage is not a null and

void marriage. Burden of proof to show

nullity belongs to the plaintiff.


48/117

Tenorio vs. Tenorio (G.R.No. 138490,

November 24, 2004) Failure to furnish a copy of the Formal

Offer of Exhibits to the OSG and the

Prosecutor is fatal to the petition. The

belated furnishing of the offer may cause

the dismissal of the case. However, the

case may be refilled as the dismissal is

not on the merit but on technicality, thus,res judicata will not set in.


49/117

Buenaventura vs. C.A. (G.R. No. 127358,

March 31, 2005) Award of Moral Damages in Art. 36

cases is not proper.


50/117

Republic vs. Iyoy

(G.R. No. 152577, Sept. 21, 2005) The fact that the wife has already

abandoned the husband, obtained a

divorce against him in the U.S., and

married an American, is no justification

to file a declaration of nullity of marriage

under Art. 36. Psychological Incapacity

must be manifested before the marriage,it must be grave, and incurable.


51/117

Gonzales vs. Gonzales (478 SCRA 327,

Dec. 16, 2005) A marriage declared void on the ground

of psychological incapacity is governed

by co-ownership under Art. 147 F.C.


52/117

Antonio vs. Reyes (G.R. No. 155880, March

10, 2006) The findings of psychiatrist and clinical

psychologist that the wife is a

pathological liar coupled with the

decision of the Metropolitan Tribunal of

the Archdiocese of Manila annulling the

marriage on the ground of the parties lack

of due discretion is sufficient to establishpsychological incapacity of the wife

under Article 36 of the Family Code .


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Republic vs. Melgar

(G.R. No. 139676, March 31, 2006) While an actual, medical, psychiatric, or

psychological examination is not a

condition sine qua non to a finding of

psychological incapacity, an expert

witness would have strengthened her

claim. Petitioners failure to present one

is fatal to her case.


54/117

Peres-Ferrarin vs. Ferrarin

(G.R. No. 162368, July 17, 2006) Respondents leaving the house attitude

whenever the spouses quarelled, violent

tendencies during epileptic attacks,

abandonment and lack of support, and hispreference to spend more time with his

bandmates than his family, were not rooted on

some incapacitating psychological condition but

a mere refusal to assume the essential maritalobligations. There is no evidence that the

defects were incurable and already present at the

inception of the marriage.

lli l (


55/117

Mallion vs. Alcantara (G.R. No. 141528,

October 31, 2006)

Husband filed a case of Declaration of Nullity ofMarriage because of psychological incapacityagainst his wife. The court dismissed it for lackof merit. Later on, he filed again a case ofdeclaration of nullity but this time on the ground

of lack of valid marriage license. The RTCdismissed it on the ground of res judicata. TheS.C. affirmed the dismissal because although thetwo cases are based of different grounds, theyare of the same cause of action, which is to

declare the marriage void. Moreover, whenplaintiff filed the first case, he should haveincluded therein all possible grounds (lack ofvalid license), otherwise, they are deemedwaived.


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Paras vs. Paras

(G.R. No. 147824, Aug 2, 2007) Infidelity, not providing support, dissipating her

business, forging her signature, and being

remiss in his duties as a husband and a father are

not psychological incapacity per se. Even if allthe allegation in the complaint are true, such

traits are at best indicators that he is unfit to

become an ideal husband and father. There is no

proof of juridical antecedence and incurabilitywhich are two of the essential requisites of

psychological incapacity.


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DECLARATION OF

PRESUMPTIVE DEATH


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59/117

Manuel vs. People (G.R. No. 165842, Nov.

29, 2005) The fact that the wife has been absent for

21 years does not create a presumption of

death to justify the husband to marry

again, thus, he can be charged for bigamy


60/117

Republic vs. C.A.

(477 SCRA 276, December 9, 2005) Presumptive death must be anchored on

well founded belief that the spouse must

have already been dead. The present

spouse must exert every deligent effort to

locate the absent spouse and must present

convincing proof to warrant the

presumption of death.


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LEGAL SEPARATION


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PROPERTY RELATIONS


65/117

Vilaranda vs. Villaranda (G.R. No. 153447,

Feb. 23, 2004) Without the wifes consent, the

husbands alienation or encumbrance of

conjugal property prior to the effectivity

of the Family Code is not void, but

merely voidable.


66/117

Joaquino vs. Reyes (G.R. No. 154645, July

13, 2004) Property relation of people living together

without marriage or under a void marriage is

governed by co-ownerships under Art. 147 or

Art. 148. If they have no impediment to marryeach other then they are governed by Art. 147,

otherwise, Art. 148 will apply. Art. 148

requires actual contribution. Registration of

property under the name of the paramour is

tantamount to a donation which is not allowed

under Art. 84 F.C., and so a constructive trust

under Art. 1456 C.C. is created in favor of the

legal wife


67/117

Abalos vs. Macatangay

(G.R. No. 155043, Sept. 30, 2004) Disposition or encumbrance of a conjugal

property requires authority of the court or

a WRITTEN consent of the other spouse,

otherwise, it is null and void


68/117

Ching vs. C.A.

(G.R. No. 124642, Feb. 23, 2004) All properties acquired during marriage

is presumed to be conjugal and it cannot

be made to answer for the loan obligation

of the husband in the absence of proof

that the obligation redounded to the

benefit of the family.


69/117

Villanueva vs. C.A. (G.R. No. 143286,

April 14, 2004) Presumption of conjugality of property

acquired during the marriage. The

contention of a concubine that Art. 148

will apply is misplaced as there is no

proof of her actual contribution. The fact

that some properties were placed in the

name of the concubine is of no moment.She failed to prove that these properties

were bought with her exclusive money.


70/117

Francisco vs. Master Iron Works &

Construction (G.R. No. 151967, Feb. 16,

2005)

In a bigamous marriage, the property

relation of the parties shall be governed

by co-ownership under Art. 148 of theFamily Code. Co-ownership applies only

when there is actual contribution from

both parties.


71/117

Homeowners Savings & Loan Bank vs.

Dailo (G.R. No. 153802, March 11, 2005) Mortgage on conjugal property executed

by the husband without the wifes

consent is void. It is not only the share of

the non consenting spouse that is void,

but the entire encumbrance itself


72/117

Pelayo vs. Perez (G.R. No. 141323, June 8,

2005) Under Art. 166 of the Civil Code, lack of

consent of one spouse to the sale of

conjugal properties by the other spouse

does not automatically make the

disposition null and void. The contract is

merely voidable at the instance of the

wife.The wifes consent does not alwayshave to be express as it may be implied.


73/117

Vda de Ramones vs. Agbayani (G.R. No.

137808, Sept. 20, 2005) Same as the Pelayo vs. Peres ruling.

Failure to nullify the sale within 10 years

(Art. 166 and173 C.C.) makes the sale

valid. The action of the wife to annul the

sale has already prescribed.


74/117

Pintiano-Anno vs. Anno

(G.R. No. 163743, Jan. 27, 2006) For presumption of conjugality to apply,

the one invoking it must first prove that

the subject property was acquired during

the marriage. Failure to prove will mean

that the property is not conjugal


75/117

Go vs. Yamane

(G.R. No. 160762, May 3, 2006) Mere registration of the property in the

name of the wife does not destroy its

conjugal nature. It cannot be made to

answer for the personal obligation of the

wife unless it redounded to the benefit of

the partnership


76/117

Bautista vs. Silva

(502 SCRA 334, Sept. 19, 2006) Sale of conjugal property by the husband

without the consent of the wife is null

and void. The nullity is not only as to the

share of the wife but of the entire

property. The buyer here cannot be

considered a buyer in good faith.


77/117

Ferrer vs. Ferrer

(G.R. No. 166496, November 9, 2006) Improvements made on the exclusive property

of the husband using the conjugal funds is

governed by Article 120 F.C. Ownership of both

the land and improvement belong to the ownerof the property that cost more. In the case at

bar, the land appear to be more valuable than the

improvement, so the property becomes

exclusive property of the husband, subject to

reimbursement of the cost of improvement to

the conjugal partnership.


78/117

Lupo Atienza vs. Yolanda de Castro (G.R.

No. 168698, Nov. 29, 2006) Proof of actual contribution is required

for Article 148 of the Family Code to

apply. If the man who claims to be the

source of the money used to buy the

property fails to prove his actual

contribution then he is not entitled to a

share. Article 148 is intended to fill upthe hiatus in Art. 144 of the Civil Code


79/117

Carandang vs. Heirs of Quirino De Guzman

(G.R. No. 160347, Nov. 29, 2006) Obligation entered into by the husband

and wife are chargeable against the

conjugal partnership. The spouses will

be solidarily liable.


80/117

SBTC vs. Mar Tierra Corp.

(G.R. No. 143382, Nov. 29, 2006) When the husband acted as guarantor or

surety for the loan of another, he does not

act for the benefit of the conjugal

partnership as the benefit is clearly

intended for a third party. Thus, creditor

cannot attach the conjugal house and lot.

He has the burden of proving thatconjugal partnership is benefited from the

transaction.


81/117

MBTC vs. Tan

(G.R. No. 163712, November 30, 2006) The bank foreclosed the 4 parcels of land

mortgaged by the (H) husband. One of the 4titles is registered in the name of H married toW. The wife questioned the foreclosure on that

land which she claimed to be conjugal. The court ruled that the words married to W is

merely descriptive of the civil status of H, and itis not proof that such property is conjugal. The

presumption under Article 116 of the Family

Code cannot apply without proof that theacquisition was during the marriage. Proof ofacquisition is a condition sine qua non for theoperation of the presumption in favor ofconjugal ownership.


82/117


83/117

FAMILY HOME


84/117

Gomez vs. Sta. Ines

(G.R. No. 132537, Oct. 14, 2005) Family home is not exempted for debts

incurred prior to the constitution of the

family home.


85/117

Versola vs. C.A.

(G.R. No. 164740, July 31, 2006) The right to exemption is a personal

privilege granted to debtor and should

be claimed and proven by him before the

public auction. The S.C. ruled in favor

of the respondents due to failure of the

petitioner to prove that the house and lot

was their family home.


86/117

Patricio vs. Dario III

(G.R. No. 170829, Nov. 20, 2006) Grandchild living with his parents in the

house of his grandmother is not

considered a minor beneficiary of the

said grandmother under Art. 159 F.C. So,

partition of the house can be effected

even if the said minor is still living in

said house.


87/117

SUPPORT


88/117

Lam vs. Chua (G.R. No. 131286, March 18,

2004) Judgment for support does not become

final. It is always subject to

modification, depending upon the need of

the child and the capabilities of the

parents to give support. RES

JUDICATA will not apply here.


89/117

Zaguirre vs. Castillo (A.C. No. 4921, Aug.

3, 2005) Support should be claimed in court. It

should not be raised as an ancilliary issue

in a disbarment case against the lawyer

father.


90/117

Mangonon vs. C.A. (G.R. No. 125041, June

30, 2006) An action for support filed by the

legitimate children (twins) against their

father and grandfather will prosper.

Since the father was found to have no

means to provide support, then, the

grandfather of the twins would be liable.


91/117

Lacson vs. Lacson (G.R. No. 150644,

August 28, 2006) Husbands contention that he should not

be made to pay support in arrears, since

no previous extrajudicial nor judicial

demands have been made by respondents

wife and children is untenable because of

the note of commitment to support given

by him before he left them. That note ofcommitment renders the requisite

demand unnecessary


92/117

PATERNITY AND FILIATION


93/117

Potenciano vs. Reynoso

(G.R. No. 140707, April 22, 2003) Filiation may be established by a

holographic as well as notarial wills, but

there is no need for it to be probated for

purposes of establishing filiation.


94/117

Arbolario vs. Court of Appeals (G.R.No.

129163, April 22, 2003) Paternity and Filiation, or the lack of it, is

a relationship that must be judicially

established. Mere cohabitation of the

husband with another woman will not

give rise to a presumption of legitimacy

in favor of the children born of the

second marriage.


95/117

Rivero vs. Court of Appeals ( G.R. No.

141273, May 17, 2005) Civil status of a person cannot be a

subject of a compromise agreement.. As

such, paternity and filiation, or the lack

of the same, is a relationship that must be

judicially established, and it is for the

court to determine its existence or

absence.


96/117

Arnel Agustin vs. Court of Appeals

(G.R. No. 162571, June 15, 2005) The alleged father of an illegitimate child

can be compelled to submit himself to

DNA testing in action for support. It does

not violate the right of a person against

self-incrimination as the kernel of the

right is not against all compulsion but

against testimonial confession.


97/117

Rosendo Herrera vs. Alba (G.R. No.

148220, June 15, 2005) DNA test is now accepted as a valid probative

tool in this jurisdiction to determination. In

assessing its probative value, courts should

consider among others, the following date: 1.)how the samples were collected, 2.) how they

were handled, 3.) the possibility of

contamination of samples, 4.) the procedures

followed in analyzing the samples, 5.) whether

or not the proper standards and procedures were

followed in conducting the tests, and 6.)

qualification of the analyst who conducted the

tests.


98/117

Concepcion vs. Court of Appeals

(G.R. No. 123450, Aug. 31, 2005) The status and filiation of a child cannot

be compromised. Art. 164 of the Family

Code provides that a child who is

conceived or born during the marriage of

his parents is legitimate. Considering that

Jose is not the child of Gerardo, the latter

has no visitorial right to speak of.


99/117

Angeles vs. Maglaya (G.R. No. 153798,

Sept. 2, 2005) A legitimate child is a product of, and, therefore,

implies a valid and lawful marriage. Remove the

element of a lawful union and there is strictly no

legitimate filiation to speak of. In this case, thereis absolutely no proof of marriage between

Francisco and Genoveva, the alleged parents of

petitioner. No marriage certificate or marriage

contract was offered in evidence. No

solemnizing officer was called to the witness

stand.


100/117

Estate of Ong vs. Diaz (G.R. No. 171713,

Dec. 17, 2007) In a case for recognition and support

where the alleged father denied his

filiation, the court may order DNA

testing even after the death of the alleged

father.


101/117

PARENTAL AUTHORITY

ANDCUSTODY OF MINORS


102/117

Briones vs. Miguel

(G.R. No. 156343, Oct. 18, 2004) Parental authority of an illegitimate child

is vested with the mother. The

recognition of the child by the father

could be a ground for ordering the latter

to give support but not the custody of the

child


103/117

Tan vs. Adre (A.M. No. RTJ-05-1898, Jan.

31, 2005) The custody of the child below 7 yrs. of

age in the mother is provisional and does

not preclude the husband to prove

compelling reasons why the mother

should be deprived of such custody


104/117

Gualberto vs. Gualberto (G.R.No. 154994,

June 28, 2005) Under Article 213 of the Family Code no child

under seven years of age shall be separated from

the mother, unless there are compelling reasons

to provide otherwise. The fact that the mother ofthe child is a Lesbian is not a valid reason.

Not even the fact that the mother is a prostitute

or an unfaithful wife is sufficient. To deprive the

wife of custody, the husband must clearly

establish that her moral lapses have had an

adverse effect on the welfare of the child or

have distracted the offending spouse from

exercising proper parental care.


105/117


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Hirsch vs. Court of Appeals

(G.R. No. 174485, July 11, 2007) The grant of joint custody of the child by

the Court of Appeals is an abuse ofdiscretion. In all question regarding the

care and custody of the child, his/herwelfare is the paramount consideration.The so-called tender- age presumptionunder Art. 213 may be overcome only by

compelling reason or evidence of themothers unfitness. Here, the mother wasnot shown to be unfit, thus sole custodyis awarded to her.


107/117

Madrinan vs. Madrinan (G.R. No. 159374,

July 12, 2007) The Court of Appeals have the

jurisdiction to entertain a Petition for

Habeas Corpus in relation to Custody of

Minors cases. R.A. 8369 did not divest

the Court of Appeals and the Supreme

Court of their jurisdiction over habeas

corpus cases involving custody of

minors. The jurisdiction of the Court of

Appeals was further affirmed by A.M.

03-03-04-SC.

il f l


108/117

Wilson Sy vs. Court of Appeals

(G.R. No. 124518, Dec. 27, 2007) In a case for Habeas Corpus in relation to

custody of minors, the grant of support

even if it was not prayed for in the

complaint was declared valid as the

petitioner did not object to it when it was

raised during the trial of the case. He is

now estopped to question it as he is

deemed to have impliedly consented to it.


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CHANGE OF NAME

In re Petition for Change of Name of Julian


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Lin Carulasan Wong (G.R. No. 159966,

March 30, 2005) A petition to drop the middle name of a

person in his birth certificate for

convenience is not allowed. A state has

an interest in the name of a person and itcannot be changed except on grounds

provided for by law.

C il D l (G R N 140305 D


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Cerila vs. Delantar (G.R. No. 140305, Dec.

9, 2005) Annulment and cancellation of birth

certificate. A person whose birth

certificate is sought to be cancelled must

be impleaded and notified as a party,otherwise, judgment is void. The

proceeding is adversarial and not

summary.

R bli C li Kh


112/117

Republic vs. Carlito Kho

(G.R. No.170340, June 29, 2007) Changes in the birth certificate that

pertains to citizenship and civil status are

substantial that warrants adversarial

proceeding under Rule 108 of the Rulesof Court. Respondent have complied with

the requirement under the law,thus, the

grant of the petition by the trial court is

proper.


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ADOPTION

In the Matter of Adoption of Stephanie


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p p

Nathy Astorga Garcia (G.R. No. 148311,

March 31, 2005)

An illegitimate child adopted by his own

father may use the surname of her mother

as her middle name.

L di i R bli


115/117

Landigin vs. Republic

(G.R. No. 164948, June 27, 2006) Adoption must be with the consent of the

surviving parent even if she is already

living abroad. Furthermore, the adopter

must also have the financial capacity toadopt which is wanting in this case.


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Alb C A (G R N 164041 J l 29


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Alba vs. C.A. (G.R. No. 164041, July 29,

2005) Illegitimate children must bear the

surname of the mother except when

recognized by the father (R.A. 9255)

2008 Updates in Family Law

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