SECOND
DIVISION
G.R. No. 168785 --- Herald
Black Dacasin, Petitioner, versus Sharon Del Mundo Dacasin, Respondent.
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SEPARATE OPINION
ABAD, J.:
I agree with the reasons that the majority of the
Court gave in support of the decision, except one. I am uncomfortable with the proposition that an
agreement between the mother and the father on a joint custody over a child
below seven years of age is void for being contrary to law and public policy. True, the law provides in Article 363 of the
Civil Code that “No mother shall be separated from her child under seven years
of age, unless the court finds compelling reasons for such measure.” The State can think up ways of protecting the
child. But the 1987 Constitution acknowledges
in Article II, Section 12, the natural and primary right and duty of parents to
nurture their children and that the State must support them in this respect.[1]
I submit that, in the matter of child custody, the
mutual will of the child’s parents takes precedence in the absence of
circumstances that justify recourse to the law. The law becomes relevant, only as a default, if
a separated couple cannot agree on the custody of their child. The law should not supplant parental
discretion or unnecessarily infringe on parental authority.
Parents have a natural and fundamental
right to autonomy in the care, custody, and upbringing of their children. The Family Code recognizes this in Article
209:
Art. 209. Pursuant
to the natural right and duty of parents over the person and property of their
unemancipated children, parental authority and responsibility shall include the
caring for and rearing them for civic consciousness and efficiency and the
development of their moral, mental and physical character and well‑being.
(n)
The State ought not to interfere with the right of
parents to bring up their child unless its exercise causes potential harm to him.
The State steps in, through the law,
only if there are compelling reasons to do so. State intrusion is uncalled for where the
welfare of a child is not jeopardized.
Regardless of marital circumstances, the mother and
the father are presumed to be fit and competent to act in the best interest of
their child. They can agree to share parental authority or, if you will,
parental custody even as they decide to live under separate roofs. In a voluntary joint custody the mother might
want to keep the child in her home during schooldays but allow the father to
have him on weekends. And they could
agree on some device for arriving at a consensus on where the child will study
and how his spiritual needs are to be attended to.
The law does not take away from a separating couple
the authority and competence to determine what is best for their child. If they resolve on their own that shared
parental custody is in their child’s best interest, then the law and the courts
have no business vetoing their decision.
The parents enjoy a primary right to make such decision. I cannot concede that, where the child is
below seven years of age, any agreement that diminishes the mother’s absolute
custody over him is void.
The second paragraph of Article 213 of
the Family Code should not be read as prohibiting separated couples from
agreeing to a custody arrangement, other than sole maternal custody, for their
child of tender age. The statutory
preference for the mother’s custody comes into play only when courts are compelled
to resolve custody fights between separated parents. Where the parents settle
the matter out of court by mutual agreement, the statutory preference reserved
to the mother should not apply.
A reading of the entire text of Article 213 shows that the second paragraph applies
only to custody disputes that have reached the courtroom. Thus:
Article 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated
by the Court. The Court shall take into account all
relevant considerations, especially the choice of the child over seven years of
age, unless the parent chosen is unfit.
No child under seven years of age shall be
separated from the mother, unless the
court finds compelling reasons to order otherwise.
It is unmistakable that the
legislative policy is to vest the separated mother with physical custody of the
child under seven years old, in cases
where the courts are called upon to designate a parent for the exercise of
parental authority. The second sentence of
the first paragraph and the second paragraph itself merely qualify the general
rule expressed in the first sentence that “parental authority shall be
exercised by the parent designated by the Court,” in case of parental
separation.
In choosing the parent who will exercise parental
authority, the court must take into account all relevant considerations. One of these is the child’s age, as the court
is directed to give due regard to the child’s choice, if the child is more than
seven years of age. If the child, however,
is below seven years of age, the court cannot separate the child from the
mother, except for compelling reasons. This
is the import of the entire
provision.
Thus, no legislative policy is
violated if separated parents are allowed to voluntarily agree to a child
custody arrangement other than sole maternal custody. It is not the policy of the state to prohibit
separated parents from compromising on child custody even if the child is of
tender age. On the contrary, voluntary
custody agreements are generally favored as it can only work for the best
interest of the child.
It is not logical to say that the Court would be subverting
the legislative policy of avoiding “a tragedy where a mother has seen her baby
torn away from her” if separated parents are allowed to enter into a joint
custody agreement. It can hardly be said
that a child is being “torn away” from the mother, if the mother sees the
wisdom and benefit of sharing custody of the child with the father. The voluntary nature of the agreement negates
any “deep sorrow” or sense of deprivation that the mother may experience on
account of her separation from the child.
Consequently, if separated parents
mutually stipulate to uphold some form of joint authority over their children
of tender age, it cannot in any way be regarded as illegal or contrary to
public policy. Joint parental authority
and custody is the norm and should be viewed as the more desirable custody
arrangement. It encourages continuing
contact with and involvement of both parents in the lives of their children. It can only redound to the minor’s greater
well-being and should thus be favored.
To declare that a joint custody
agreement over minors of tender age contravenes Philippine laws will only
discourage separating couples from sharing parental duties and
responsibilities. It will render shared parenthood illegal and unduly promote
paternal alienation. It also presumes
that separated parents cannot cooperate and compromise for the welfare of their
children. It constitutes undue
interference in the parents’ intrinsic right to direct their relations with
their child.
A joint custody agreement can of
course never be regarded as permanent and unbending. The situations of the mother or the father
and even of the child can change and render performance of such agreement no
longer in the latter’s best interest. If
the parents disagree on what they think is best for the child, recourse to the
Court may be inevitable. But I suggest
that the parent who wants the joint custody agreement changed or set aside bears
the burden of showing to the court the new situations of the parties and how
such arrangement have become unfavorable or detrimental to the child under the
circumstances. This is a consequence of
the presumption that contracts that are valid remain valid unless shown
otherwise.
Here, the agreement between petitioner Herald and his
estranged wife providing for joint custody of their then six-year-old child is
a valid exercise of parental discretion and authority. It is independent of the foreign divorce
decree and may be enforced or repudiated in this jurisdiction, since its object
is the custody of a Filipino-American minor residing in the
I concur in the decision subject to my above
reservations.
ROBERTO
A. ABAD
Associate Justice
[1] Article II,
Sec. 12. The State recognizes the
sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother
and the life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.