CIVIL LAW PERSONS & FAMILY RELATIONS
the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.
Support must be demanded and the right to it established before it becomes payable. For the right to support does not arise from the mere fact of relationship, even from relationship of parents and children, but from ‘imperative necessity’ without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded. (Sy vs. CA, G.R. No. 124518, Dec.
17, 2007)
Payment of the amount for support starts only from the time support has been judicially or extra-judicially demanded for the right to support does not arise from the mere fact of relationship but from imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist, unless support is demanded (Jocson vs. Empire Insurance Co., G.R. No. L-10792, April 30, 1958).
Performance of obligation to support (Art. 204) 1. Paying the allowance fixed; or
2. Receiving and maintaining in the family dwelling the person who has a right to receive support provided that there is no moral or legal obstacle to do so.
Note: The law provides that the husband, who is obliged to support the wife, may fulfill the obligation either by paying her a fixed pension or by maintaining her in his own home at his option. However, this option given by law is not absolute. The law will not permit the husband to evade or terminate his obligation to support his wife if the wife is driven away from the conjugal home because of his wrongful acts. In the case at bar, the wife was forced to leave the conjugal abode because of the lewd designs and physical assault of the husband, she can therefore claim support from the husband for separate maintenance even outside the conjugal home (Goitia vs. Campos-Rueda G.R. No. G.R. No. 11263, November 2, 1916).
As to how the obligation to support can be performed, Art.
204 provides that the person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has the right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto, such as the strained relationship between the parties (Ma. Belen B.
Mangonon vs. CA, G.R. No. 125041, June 30, 2006).
Exemption of support from attachment or execution The right to receive support as well as money or property
obtained as such support shall not be levied upon on attachment or execution (Art. 205). But in case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution (Art. 208).
Only salary "due" the judgment debtor is subject to attachment and execution, and then only if it is not made to appear by the affidavit of the debtor or otherwise that such earnings are necessary for the support of his family.
Under the Revised Rules, so much of the earnings of the debtor for his personal services within the month preceding the levy as are necessary for the support of his family (Sec. 12, Rule 39) is exempt from execution (Avendaño vs. Alikapala, G.R. No. L-21189 November 28, 1964).
Parental authority is the sum total of the right of the parents over the persons and property of their unemancipated children. It is pursuant to the natural right and duty of parents over the same and it includes caring for and rearing of such children for civic consciousness and efficiency and the development of their moral and physical character and well-being (Art. 209).
Parental Preference Rule
The natural parents, who are of good moral character and who can reasonably provide for the child, are ordinarily entitled to custody as against all other persons (Sta.
Maria, M., Persons and Family Relations, 2010, p. 789).
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution.
When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company (Sagala-Eslao vs. CA, G.R. No. 116773, January 16, 1997).
The right of custody accorded to parents springs from the exercise of parental authority. (Santos vs. CA, G.R. No.
113054 March 16, 1995)
P
ARENTALA
UTHORITY(PA)
PERSONS & FAMILY RELATIONS CIVIL LAW
Rules on the exercise of parental authority
Joint parental authority by the father and mother over the persons of their common children, whether legitimate or illegitimate. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary (Art. 211)
Under Art. 176, parental authority of illegitimate children is generally with the mother. To harmonize Art. 176 with Art.
211, joint parental authority may be exercised over illegitimate children if:
1. The father is certain, and
2. The illegitimate children are living with the said father and mother who are cohabiting without the benefit of marriage or under a void marriage not falling under Arts.
36 and 53.( Sta. Maria, M., Persons and Family Relations, 2010, p. 781)
Note: The recognition by the father could be a ground for ordering him to give support, but not custody of the child.
Only if the mother defaults can the father assume such custody or authority. Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority shall justify deprivation of her parental authority and the award of custody to someone else (Briones vs.
Miguel, G.R. No. 156343 October 18, 2004).
Duties of Children towards their Parents
1. To observe respect and reverence toward their parents;
2. To obey their parents as long as they are under their parental authority.
Rule of filial privilege
No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other (Art. 215, FC in relation to Sec. 25, Rule 130 of the Rules on Evidence)
In Emma Lee vs. CA (G.R. No. 177861, July 13, 2010), the person (Tiu) who invoked the filial privilege, claims that she is the stepmother of petitioner Lee. The Supreme Court declared that the privilege cannot apply because the rule applies only to “direct” ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter does not have a common ancestry by her stepmother. Relative thereto, Art. 965 of the NCC provides that the direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends.
Consequently, Tiu can be compelled to testify against petitioner Emma Lee.
This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven declared that he was testifying as a witness against his father of his own accord and only "to tell the truth” (People vs. Invencion, G.R. No. 131636 March 5, 2003).
In line with the filial privilege under Art. 215 of the Family Code is the marital privilege provided for under Sec. 24 (a) of Rule 130 of the Rules of Court which states that:
The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants.
Rules in case parental authority cannot be exercised jointly (Art. 212 to 214)
Cause of absence of
parent Effect on parental authority Absence or death of one
parent
PA continued by the parent present or surviving parent
In case of remarriage of
the surviving parent PA continued to be exercised by surviving parent unless court appoints another person a guardian
Note: The new spouse, by virtue of his or her marrying the surviving parent, does not automatically possess parental authority over the children of the surviving parent unless such new spouse adopts the children.
(Sta. Maria, M., Persons and Family Relations, 2010, p. 784)
Legal separation of
parents PA shall be exercised
by the parent
designated by the court
CIVIL LAW PERSONS & FAMILY RELATIONS
Exception:
If child is under seven years old, the mother shall have custody over said child.
Exception to the exception:
Unless the court finds compelling reasons to order otherwise.
Death, absence or unsuitability of both parents
Substitute parental authority shall be exercised by the surviving grandparent.
In case several survive, the court shall consider the best interests of the child in the designation.
Doctrines regarding the maternal preference granted by Art. 213 par. 2 as decided in Dacasin vs. Dacasin (G.R. No. 168785 February 5, 2010)
Maternal preference cannot be subject to an agreement between the separated spouses: Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.
As to the bias favoring the mother over the father in case of separation: At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges.
These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.
As to the limited period of application of preference:
Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated
parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt.
Writ of habeas corpus in child custody cases
Habeas corpus may be resorted in cases where rightful custody is withheld from a person entitled thereto (Salientes vs. Abanilla G.R. No. 162734 August 29, 2006).
The controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relived from unlawful imprisonment or detention, as in the .case of adults, but on the court’s view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any persons, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child’s welfare is the supreme consideration (Sombong vs. CA, G.R. No.
111876. January 31, 1996).
Maternal Preference/ Tender Years Rule
General Rule: No child under 7 years of age shall be separated from the mother.
Exception: When the court finds compelling reason to order otherwise. The welfare and well-being of the child is the paramount consideration in awarding custody.
SUBSTITUTE PARENTAL AUTHORITY (Art. 216) Persons who will exercise parental authority in the default of parents or a judicially appointed guardian, in the order indicated:
1. Surviving grandparent
2. Oldest brother or sister over 21 years of age unless unfit or disqualified
3. Actual custodian over 21 years of age unless unfit or disqualified
The same order of preference shall be observed when appointment of guardian over property of child becomes necessary.
Private respondents' (grandparents) demonstrated love and affection for the boy, notwithstanding, the legitimate
PERSONS & FAMILY RELATIONS CIVIL LAW
father is still preferred over the grandparents. The latter's wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give (Santos vs. CA, G.R. No. 113054 March 16, 1995).
Note: The person exercising substitute parental authority shall have the same authority over the person of the child as the parents (Art. 233).
Rule in case of foundlings, abandoned, neglected or abused children and other children similarly situated:
(Art. 217) Foundling
Newborn child abandoned by its parents who are unknown (Bouvier’s Law Dictionary, 3rd Revision, p. 1293) Abandoned child
One who has no proper parental care or guardianship, or those whose parents or guardians have deserted him for a period of at least six continous months [Art. 141 (2), PD 603]
Neglected child
One whose basic needs have been deliberately unattended or inadequately attended and may be done through physical or emotional neglect [Art. 141 (3), PD 603]
Abused child
Can come within the emotionally-neglected child (Sta.
Maria, M., Persons and Family Relations, 2010, p. 804) Parental authority shall be entrusted in summary judicial proceeding to:
1. Heads of children’s homes, 2. Orphanages, or
3. Similar institutions duly accredited by the proper government agency (Art. 217)
SPECIAL PARENTAL AUTHORITY (Art. 218 and 219) Can only be exercised over minors while under their supervision, instruction or custody. The authority and supervision also attach to all authorized activities whether inside or outside the school, entity or institution.
The following shall be held principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor:
1. School
No distinction between academic or non-academic (arts and trades)
Note: In Amadora vs. CA (G.R. No. L-47745 April 15, 1988), the Court has come to the conclusion that the Art. 218 and 219 should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices."
2. Administrators and teachers
3. Individual, entity or institution engaged in child care As held in the case of Palisoc vs. Brillantes (G.R. No. L-29025 October 4, 1971), the phrase "so long as (the students) remain in their custody" means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school. In the view of the Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended.
Note: In no case shall the persons exercising special parental authority inflict corporal punishment upon the child (Art. 233).
CIVIL LAW PERSONS & FAMILY RELATIONS
SPECIAL PARENTAL AUTHORITY AND SUBSTITUTE PARENTAL AUTHORITY DISTINGUISHED
Special PA Substitute PA Rests on the theory that
while the child is in the care and custody of the person/s exercising special parental authority, the parents temporarily relinquish parental authority
Exercised in case of death, absence, or unsuitability of parents
Concurrent with parental authority
NOT exercised
concurrently with the exercise of parents Liability is principal and
solidary with the minor under their custody
Liability is only subsidiary, that is, only if the persons with special parental authority cannot satisfy their liability.
Defense of exercise the proper diligence required under the particular circumstances may extinguish liability
No such defense is available in case of acts or omissions committed while the child is in the custody of the person exercising special parental authority.
In acts and omissions committed outside the custody of the school, entity or institution, for the primary liability of the parents to attach under Art. 221, the unemancipated child must be living in their company AND under their parental authority.
The principle of parental liability (under Art. 221) is a species of vicarious liability, or the doctrine of imputed
The principle of parental liability (under Art. 221) is a species of vicarious liability, or the doctrine of imputed