THIRD DIVISION
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MARIE ANTONETTE ABIGAIL C. SALIENTES, Petitioners, -
versus - |
G.R. No. 162734 Present: QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ. |
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Respondents. |
Promulgated: August 29, 2006 |
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DECISION
QUISUMBING, J.:
The instant petition assails the Decision[1] dated
The facts of the case are as follows:
Private respondent Loran S.D. Abanilla
and petitioner Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived
with Marie Antonette’s parents, petitioners Orlando B.
Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent
suggested to his wife that they transfer to their own house, but Marie Antonette refused.
So, he alone left the house of the Salientes. Thereafter, he was prevented from seeing his son.
Later, Loran S.D. Abanilla in his personal
capacity and as the representative of his son, filed a Petition for Habeas
Corpus and Custody,[3] docketed as Special
Proceedings No. 03-004 before the
Upon verified Petition for a Writ of Habeas
Corpus by Petitioners, the Respondents Marie Antonette
Abigail C. Salientes, Orlando B. Salientes
and Rosario C. Salientes are hereby directed to
produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31,
2003 at 1:00 o’clock in the afternoon and to show cause why the said child
should not be discharged from restraint.
Let this Writ be served by the Sheriff or any
authorized representative of this Court, who is directed to immediately make a
return.
SO ORDERED.[4]
Petitioners moved for reconsideration which the court denied.
Consequently, petitioners filed a petition for certiorari with the Court
of Appeals, but the same was dismissed on
WHEREFORE, the petition is hereby DISMISSED
for lack of merit.
SO ORDERED.[5]
Petitioners moved for reconsideration, which was denied on
Hence, petitioners interposed this appeal by certiorari anchored on the
following grounds:
1.
The Court of Appeals erred in not pronouncing
the respondent judge gravely abused his discretion, amounting to lack or in
excess of jurisdiction in issuing an order for the petitioner-mother to first
show cause why her own three-year old child in her custody should not be
discharged from a so-called “restraint” despite no evidence at all of restraint
and no evidence of compelling reasons of maternal unfitness to deprive the
petitioner-mother of her minor son of tender years. The assailed orders, resolutions and decisions
of the lower court and the Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing a writ of habeas corpus which clearly is not warranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void.
3. Contrary to the Court of Appeals decision, the “Sombong vs. CA” case supports rather than negates the position of the petitioners.
4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule
5. The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of any compelling reason of the unfitness of the petitioner-mother;
6.
The Court of Appeals failed to see that the New
Rules on Custody SUFFICES AS REMEDY.[6]
Plainly put, the issue is: Did the Court of Appeals err when
it dismissed the petition for certiorari against the trial court’s orders
dated
Petitioners contend that the order is contrary to Article 213[7] of the Family
Code, which provides that no child under seven years of age shall be separated
from the mother unless the court finds compelling reasons to order
otherwise. They maintain that herein respondent
Loran had the burden of showing any compelling reason but failed to present
even a prima facie proof thereof.
Petitioners posit that even assuming that there were compelling reasons, the
proper remedy for private respondent was simply an action for custody, but not habeas
corpus. Petitioners assert that habeas
corpus is unavailable against the mother who, under the law, has the right
of custody of the minor. They insist
there was no illegal or involuntary restraint of the minor by his own mother. There was no need for the mother to show
cause and explain the custody of her very own child.
Private respondent counters that petitioners’ argument based on Article
213 of the Family Code applies only to the second part of his petition
regarding the custody of his son. It
does not address the first part, which pertains to his right as the father to
see his son. He asserts that the writ of
habeas corpus is available against any person who restrains the minor’s
right to see his father and vice versa.
He avers that the instant petition is merely filed for delay, for had
petitioners really intended to bring the child before the court in accordance
with the new rules on custody of minors, they would have done so on the dates
specified in the
Private respondent maintains that, under the law, he and petitioner Marie
Antonette have shared custody and parental authority
over their son. He alleges that at times
when petitioner Marie Antonette is out of the country
as required of her job as an international flight stewardess, he, the father,
should have custody of their son and not the maternal grandparents.
As correctly pointed out by the Court of Appeals, the assailed January
23, 2003 Order of the trial court did not grant custody of the minor to any of
the parties but merely directed petitioners to produce the minor in court and
explain why they are restraining his liberty.
The assailed order was an interlocutory order precedent to the trial
court’s full inquiry into the issue of custody, which was still pending before
it.
Under Rule 41, Section 1[8] of the Rules of Court,
an interlocutory order is not appealable but the
aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that the court
gravely abused its discretion in issuing the interlocutory order. In the present case, it is incumbent upon
petitioners to show that the trial court gravely abused its discretion in
issuing the order.
Habeas corpus
may be resorted to in cases where rightful custody is withheld from a person
entitled thereto.[9] Under Article 211[10] of the Family
Code, respondent Loran and petitioner Marie Antonette
have joint parental authority over their son and consequently joint
custody. Further, although the couple is
separated de facto, the issue of custody has yet to be adjudicated by
the court. In the absence of a judicial
grant of custody to one parent, both parents are still entitled to the custody
of their child. In the present case, private
respondent’s cause of action is the deprivation of his right to see his child
as alleged in his petition.[11] Hence, the remedy of habeas corpus is
available to him.
In a petition for habeas corpus, the child’s welfare is the
supreme consideration. The Child and Youth Welfare Code[12]
unequivocally provides that in all questions regarding the care and custody,
among others, of the child, his welfare shall be the paramount consideration.[13]
Again, it bears stressing that
the order did not grant
custody of the minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why private respondent is prevented from
seeing his child. This is in line with
the directive in Section 9[14] of A.M.
03-04-04-SC[15]
that within fifteen days after the filing of the answer or the expiration of
the period to file answer, the court shall issue an order requiring the
respondent (herein petitioners) to present the minor before the court. This was exactly what the court did.
Moreover, Article 213 of the Family Code deals with the judicial adjudication
of custody and serves as a guideline for the proper award of custody by the
court. Petitioners can raise it as a counter
argument for private respondent’s petition for custody. But it is not a basis for preventing the
father to see his own child. Nothing in
the said provision disallows a father from seeing or visiting his child under
seven years of age.
In sum, the trial court did not err in issuing the orders dated
WHEREFORE, the petition is DENIED. The Decision dated
SO ORDERED.
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LEONARDO A. QUISUMBING Associate Justice |
WE CONCUR:
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ANTONIO T. CARPIO Associate Justice |
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CONCHITA CARPIO MORALES Associate Justice |
DANTE O. TINGA Associate Justice |
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PRESBITERO J. VELASCO,
JR. Associate Justice |
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A T T E S T A T I O N
I attest that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
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LEONARDO A. QUISUMBING Associate Justice Chairperson |
C E R T I F I C A T I O N
Pursuant to Section
13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
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ARTEMIO V. PANGANIBAN Chief Justice |
[1] Rollo, pp. 11-15. Penned by Associate Justice Eubulo G. Verzola with Associate Justices Amelita G. Tolentino, and Edgardo F. Sundiam concurring.
[2]
[3]
[4]
[5]
[6]
[7] ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
[8] SECTION 1. Subject of appeal. – . . .
No appeal may be taken from:
x x x x
(c) an interlocutory order;
x x x x
In all of the above instances where the judgment or
final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65.
[9] Rules
of Court, Rule 102, Sec. 1. To what habeas corpus extends. –
Except as otherwise expressly provided by law, the writ of habeas corpus
shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.
[10] ART. 211. The father and the mother shall jointly
exercise parental authority over the persons of their common children. In cases of disagreement, the father’s decision
shall prevail, unless there is a judicial order to the contrary.
[11] Rollo, pp. 75-77.
[12] Presidential Decree No. 603, as amended.
[13]
[14] SEC. 9. Notice of mandatory pre-trial. - Within fifteen
days after the filing of the answer or the expiration of the period to file
answer, the court shall issue an order: (1) fixing a date for the pre-trial
conference; (2) directing the parties to file and serve their respective
pre-trial briefs in such manner as shall ensure receipt thereof by the adverse
party at least three days before the date of pre-trial; and (3) requiring
the respondent to present the minor before the court. [Emphasis
supplied.]
[15] Rules on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors.