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G.R. No. 168785. February 5, 2010.*

HERALD BLACK DACASIN, petitioner, vs. SHARON DEL
MUNDO DACASIN, respondent.

Civil Law; Contracts; Parties to a contract are free to stipulate

the terms of agreement subject to the minimum ban on stipulations
contrary to law, morals, good customs, public order, or public
policy.—In this jurisdiction, parties to a contract are free to
stipulate the terms of agreement subject to the minimum ban on
stipulations contrary to law, morals, good customs, public order,
or public policy. Otherwise, the contract is denied legal existence,
deemed “inexistent and void from the beginning.” For lack of
relevant stipulation in the Agreement, these and other ancillary
Philippine substantive law serve as default parameters to test the
validity of the Agreement’s joint child custody stipulations.
Same; Same; The Family Code; Child Custody; Sole parental
custody of a child less than seven years old—The relevant
Philippine law on child custody for spouses separated in fact or in
law is that no child under seven years of age shall be separated
from the mother; This is mandatory grounded on sound policy of
consideration; Agreement’s object to establish a post-divorce joint
custody regime between respondent and petitioner over their child
under seven years old contravenes Philippine Law.—At the time
the parties executed the Agreement on 28 January 2002, two facts
are undisputed: (1) Stephanie was under seven years old (having
been born on 21 September 1995); and (2) petitioner and
respondent were no longer married under the laws of the United
States because of the divorce decree. The relevant Philippine law
on child custody for spouses separated in fact or in law (under the
second paragraph of Article 213 of the Family Code) is also
undisputed: “no child under seven years of age shall be separated
from the mother x x x.” (This statutory awarding of sole parental
custody to the mother is mandatory, grounded on sound policy
consideration, subject only to a narrow exception not alleged to
obtain here.) Clearly then, the Agreement’s object to establish a
post-divorce joint custody regime between respondent and
petitioner over their child under seven years old contravenes
Philippine law.

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* SECOND DIVISION.

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Same; Same; Same; Same; The agreement would be valid if

the spouses have not divorced or separated because the law
provides for joint parental authority when spouses live together.—
The Agreement is not only void ab initio for being contrary to law,
it has also been repudiated by the mother when she refused to
allow joint custody by the father. The Agreement would be valid if
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the spouses have not divorced or separated because the law

provides for joint parental authority when spouses live together.
However, upon separation of the spouses, the mother takes sole
custody under the law if the child is below seven years old and
any agreement to the contrary is void. Thus, the law suspends the
joint custody regime for (1) children under seven of (2) separated
or divorced spouses. Simply put, for a child within this age
bracket (and for commonsensical reasons), the law decides for the
separated or divorced parents how best to take care of the child
and that is to give custody to the separated mother.
Same; Family Code; Marriages; Divorce; An alien spouse of a
Filipino is bound by a divorce decree obtained abroad.—The
argument that foreigners in this jurisdiction are not bound by
foreign divorce decrees is hardly novel. Van Dorn v. Romillo, 139
SCRA 139 (1985) settled the matter by holding that an alien
spouse of a Filipino is bound by a divorce decree obtained abroad.
There, we dismissed the alien divorcee’s Philippine suit for
accounting of alleged post-divorce conjugal property and rejected
his submission that the foreign divorce (obtained by the Filipino
spouse) is not valid in this jurisdiction.
Same; Same; Same; It should be clear by now that a foreign
divorce decree carries as much validity against the alien divorcee
in this jurisdiction as it does in the jurisdiction of the alien’s
nationality irrespective of who obtained the divorce.—We
reiterated Van Dorn in Pilapil v. Ibay-Somera, 174 SCRA 653
(1989) to dismiss criminal complaints for adultery filed by the
alien divorcee (who obtained the foreign divorce decree) against
his former Filipino spouse because he no longer qualified as
“offended spouse” entitled to file the complaints under Philippine
procedural rules. Thus, it should be clear by now that a foreign
divorce decree carries as much validity against the alien divorcee
in this jurisdiction as it does in the jurisdiction of the alien’s
nationality, irrespective of who obtained the divorce.

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ABAD, J., Separate Opinion:

Family Code; Child Custody; In the matter of child custody,
the mutual will of the child’s parent takes precedence in the
absence of circumstances that justify recourse to the law.—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.
Same; Same; 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.—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

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matter out of court by mutual agreement, the statutory preference

reserved to the mother should not apply.
Same; Same; No legislative policy is violated if separated
parents are allowed to voluntarily agree to a child custody
arrangement other than sole maternal custody.—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.

PETITION for review on certiorari of orders of the Regional

Trial Court of Makati City, Br. 60.
   The facts are stated in the opinion of the Court.
  Puyat, Jacinto & Santos for petitioner.

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  Poblador, Bautista & Reyes for respondent.

CARPIO, J.:

The Case

For review1 is a dismissal2 of a suit to enforce a post-

foreign divorce child custody agreement for lack of
jurisdiction.

The Facts

Petitioner Herald Dacasin (petitioner), American, and

respondent Sharon Del Mundo Dacasin (respondent),
Filipino, were married in Manila in April 1994. They have
one daughter, Stephanie, born on 21 September 1995. In
June 1999, respondent sought and obtained from the
Circuit Court, 19th Judicial Circuit, Lake County, Illinois
(Illinois court) a divorce decree against petitioner.3 In its
ruling, the Illinois court dissolved the marriage of
petitioner and respondent, awarded to respondent sole
custody of Stephanie and retained jurisdiction over the case
for enforcement purposes.
On 28 January 2002, petitioner and respondent executed
in Manila a contract (Agreement4) for the joint custody of
Stephanie. The parties chose Philippine courts as exclusive
forum to adjudicate disputes arising from the Agreement.
Respondent undertook to obtain from the Illinois court an
order “relinquishing” jurisdiction to Philippine courts.
In 2004, petitioner sued respondent in the Regional
Trial Court of Makati City, Branch 60 (trial court) to
enforce the Agreement. Petitioner alleged that in violation
of the Agreement, respondent exercised sole custody over
Stephanie.

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1 Under Rule 45 of the 1997 Rules of Civil Procedure.

2  In the Orders dated 1 March 2005 and 23 June 2005 issued by the
Regional Trial Court of Makati City, Branch 60.

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3 Petitioner did not contest the proceedings.

4  Denominated “Compromise Agreement on Child Custody and
Support.”

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Respondent sought the dismissal of the complaint for,

among others, lack of jurisdiction because of the Illinois
court’s retention of jurisdiction to enforce the divorce
decree.

The Ruling of the Trial Court

In its Order dated 1 March 2005, the trial court

sustained respondent’s motion and dismissed the case for
lack of jurisdiction. The trial court held that: (1) it is
precluded from taking cognizance over the suit considering
the Illinois court’s retention of jurisdiction to enforce its
divorce decree, including its order awarding sole custody of
Stephanie to respondent; (2) the divorce decree is binding
on petitioner following the “nationality rule” prevailing in
this jurisdiction;5 and (3) the Agreement is void for
contravening Article 2035, paragraph 5 of the Civil Code6
prohibiting compromise agreements on jurisdiction.7

_______________

5 Under Article 15 of the Civil Code which provides: “Laws relating to

family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living
abroad.”
6 This provides: “No compromise upon the following questions shall be
valid: x x x (5) The jurisdiction of courts[.]”
7 The trial court held (Records, pp. 157-158):
[H]aving expressly recognized the validity of the Illinois Court’s
judgment [petitioner] is bound by its provisions including the provision
that the Court would maintain sole jurisdiction to implement and enforce
the provisions of the said judgment which necessarily included guidelines
for the child’s custody.
[Petitioner] being admittedly an American, following the nationality
rule which Philippine civil laws adhere to, the Judgment of the Illinois
Court would be binding upon him since the judicial disposition refers to
matters of status or legal capacity of a person.
xxxx
Moreover, this Court cannot act upon [petitioner’s] prayer to enforce
the terms of the said Compromise Agreement the said agreement being
invalid and therefore, void, precisely because it

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Petitioner sought reconsideration, raising the new

argument that the divorce decree obtained by respondent is
void. Thus, the divorce decree is no bar to the trial court’s
exercise of jurisdiction over the case.
In its Order dated 23 June 2005, the trial court denied
reconsideration, holding that unlike in the case of
respondent, the divorce decree is binding on petitioner
under the laws of his nationality.
Hence, this petition.

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Petitioner submits the following alternative theories for

the validity of the Agreement to justify its enforcement by
the trial court: (1) the Agreement novated the valid divorce
decree, modifying the terms of child custody from sole
(maternal) to joint;8 or (2) the Agreement is independent of
the divorce decree obtained by respondent.

The Issue

The question is whether the trial court has jurisdiction

to take cognizance of petitioner’s suit and enforce the
Agreement on the joint custody of the parties’ child.

_______________

  seeks to transfer jurisdiction over the issue of child custody from the
Illinois Court to this Court by agreement of the parties, when the previous
Court had already effectively asserted its authority to act upon all matters
relating to the said issue.

In this regard, Art. 2035 of the Civil Code expressly states that no
compromise upon the questions of civil status of persons, validity of
marriage, or legal separation, future support, jurisdiction of courts and
future legitimate shall be valid.
8  As a corollary claim, petitioner submits that the stipulation in the
Agreement “vesting” exclusive jurisdiction to Philippine courts over
conflicts arising from the Agreement, even if void for being contrary to
Article 2035, paragraph 5 of the Civil Code, is severable from and does not
affect the validity of the other terms of the Agreement on joint custody.

663

The Ruling of the Court

The trial court has jurisdiction to entertain petitioner’s
suit but not to enforce the Agreement which is void.
However, factual and equity considerations militate
against the dismissal of petitioner’s suit and call for the
remand of the case to settle the question of Stephanie’s
custody.

Regional Trial Courts Vested With Jurisdiction

to Enforce Contracts
Subject matter jurisdiction is conferred by law. At the
time petitioner filed his suit in the trial court, statutory
law vests on Regional Trial Courts exclusive original
jurisdiction over civil actions incapable of pecuniary
estimation.9 An action for specific performance, such as
petitioner’s suit to enforce the Agreement on joint child
custody, belongs to this species of actions.10 Thus,
jurisdiction-wise, petitioner went to the right court.
Indeed, the trial court’s refusal to entertain petitioner’s
suit was grounded not on its lack of power to do so but on
its thinking that the Illinois court’s divorce decree stripped
it of jurisdiction. This conclusion is unfounded. What the
Illinois court retained was “jurisdiction x x x for the
purpose of enforcing all and sundry the various
provisions of [its] Judgment for Dissolution.”11
Petitioner’s suit seeks the enforcement not of the “various

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provisions” of the divorce decree but of the post-divorce

Agreement on joint child custody.

_______________

9 Section 19, paragraph 1, Batas Pambansa Blg. 129, as amended by

Republic Act No. 7691, provides: “Jurisdiction in civil cases.—Regional
Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil
actions in which the subject of the litigation is incapable of pecuniary
estimation; x x x x”
10 See Ortigas & Company, Limited Partnership v. Herrera, 205 Phil.
61; 120 SCRA 89 (1983).
11 Records, p. 17 (emphasis supplied).

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Thus, the action lies beyond the zone of the Illinois court’s
so-called “retained jurisdiction.”

Petitioner’s Suit Lacks Cause of Action

The foregoing notwithstanding, the trial court cannot

enforce the Agreement which is contrary to law.
In this jurisdiction, parties to a contract are free to
stipulate the terms of agreement subject to the minimum
ban on stipulations contrary to law, morals, good customs,
public order, or public policy.12 Otherwise, the contract is
denied legal existence, deemed “inexistent and void from
the beginning.”13 For lack of relevant stipulation in the
Agreement, these and other ancillary Philippine
substantive law serve as default parameters to test the
validity of the Agreement’s joint child custody
stipulations.14
At the time the parties executed the Agreement on 28
January 2002, two facts are undisputed: (1) Stephanie was

_______________

12 Article 1306 of the Civil Code provides: “The contracting parties may
establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy.”
13 Article 1409, paragraph 1 of the Civil Code provides: “The following
contracts are inexistent and void from the beginning: (1) Those whose
cause, object or purpose is contrary to law, morals, good customs, public
order or public policy; x x x x”
14 It can be inferred from the terms of the Agreement that the parties
intended to be bound by Philippine law on its intrinsic validity (this is
evident, for instance, from the stipulation selecting Philippine courts as
exclusive forum to settle “any legal issue or dispute that may arise from
the provisions of [the] Agreement and its interpretation x x x” (Records,
p. 19; emphasis supplied). At any rate, Philippine law has the most
substantial connection to the contract, considering its object (custody of a
Filipino-American child), subject (Filipino-American child under seven
years of age, born of a Filipino mother, both of whom reside in the
country) and parties (Filipina mother and alien father).

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under seven years old (having been born on 21 September

1995); and (2) petitioner and respondent were no longer
married under the laws of the United States because of the
divorce decree. The relevant Philippine law on child
custody for spouses separated in fact or in law15 (under the
second paragraph of Article 213 of the Family Code) is also
undisputed: “no child under seven years of age shall be
separated from the mother x x x.”16 (This statutory
awarding of sole parental custody17 to the mother is
mandatory,18 grounded on sound policy consideration,19
subject only to a narrow exception not

_______________

15  Including those marriages whose vinculum has been severed (see
SEMPIO-DY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES 67-68 [1988]).
16 The provision states: “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.” (Emphasis supplied)
17 Gamboa-Hirsch v. Court of Appeals (Res.), G.R. No. 174485, 11 July
2007, 527 SCRA 320 (reversing the Court of Appeals’ ruling mandating
joint custody and awarding sole custody to the mother).
18 Perez v. Court of Appeals, 325 Phil. 1014; 255 SCRA 661 (1996). For
children over seven, custody decisions are guided by the standard of “best
interest of the child.”
19 Our discussion in Pablo-Gualberto v. Gualberto V, G.R. No. 154994,
28 June 2005, 461 SCRA 450, 471-472, on the statutory genealogy and
policy grounding of the second paragraph of Article 213 is enlightening:
[A]rticle 213 takes its bearing from Article 363 of the Civil Code, which
reads:
Art. 363. In all questions on the care, custody, education and
property of children, the latter’s welfare shall be paramount. No
mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.

666

alleged to obtain here.20) Clearly then, the Agreement’s

object to establish a post-divorce joint custody regime
between respondent and petitioner over their child under
seven years old contravenes Philippine law.
The Agreement is not only void ab initio for being
contrary to law, it has also been repudiated by the mother
when she refused to allow joint custody by the father. The
Agreement would be valid if the spouses have not divorced
or separated because the law provides for joint parental
authority when spouses live together.21 However, upon
separation of the spouses, the mother takes sole custody
under the law if the child is below seven years old and any
agreement to the contrary is void. Thus, the law suspends
the joint custody regime for (1) children under seven of (2)
separated or divorced

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The general rule that children under seven years of age shall not be
separated from their mother finds its raison d’etre in the basic need of
minor children for their mother’s loving care. In explaining the rationale
for Article 363 of the Civil Code, the Code Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for compelling reasons for the good
of the child: those cases must indeed be rare, if the mother’s heart is not to
be unduly hurt. If she has erred, as in cases of adultery, the penalty of
imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any
effect upon the baby who is as yet unable to understand the situation.
(Report of the Code Commission, p. 12)
20 Sole maternal custody is denied only for “compelling reasons” such
as “neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or
affliction with a communicable disease” (Id., at 476; internal citation
omitted).
21 Civil Code, Article 211, as amended.

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spouses. Simply put, for a child within this age bracket

(and for commonsensical reasons), the law decides for the
separated or divorced parents how best to take care of the
child and that is to give custody to the separated mother.
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 213.22
It will not do to argue that the second paragraph of
Article 213 of the Family Code applies only to judicial
custodial agreements based on its text that “No child under
seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order
otherwise.” To limit this provision’s enforceability to court
sanctioned agreements while placing private agreements
beyond its reach is to sanction a double standard in custody
regulation of children under seven years old of separated
parents. This effectively empowers separated parents, by
the simple expedient of avoiding the courts, to subvert a
legislative policy vesting to the separated mother sole
custody of her children under seven years of age “to avoid a
tragedy where a mother has seen her baby torn away from
her.”23 This ignores the legislative basis that “[n]o man can
sound the deep sorrows of a mother who is deprived of her
child of tender age.”24
It could very well be that Article 213’s bias favoring one
separated parent (mother) over the other (father)
encourages paternal neglect, presumes incapacity for joint
parental cus-

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22 See note 20.

23 See note 19.
24 Id.

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tody, robs the parents of custodial options, or hijacks

decision-making between the separated parents.25
However, these are objections which question the law’s
wisdom not its validity or uniform enforceability. The
forum to air and remedy these grievances is the legislature,
not this Court. 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.
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. Lastly, even supposing that petitioner and
respondent are not barred from entering into the
Agreement for the joint custody of Stephanie, respondent
repudiated the Agreement by asserting sole custody over
Stephanie. Respondent’s act effectively brought the parties
back to ambit of the default custodial regime in the

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25 This line of argument can be subsumed under the rubric of “unfair

state intervention” but this complaint can very well be leveled against the
entire field of family law where the state injects itself on a host of areas
impinging on the decision-making capacity and autonomy of individuals
ranging from the intensely personal (e.g. who can marry [Article 5, Family
Code], where to marry [Article 5, Family Code], who can celebrate the
marriage [Article 5, Family Code], and how to relate to one’s spouse
[Articles 68-72]) to proprietary (e.g. Articles 74-125, Family Code, on
property relations of spouses and Articles 194-208, Family Code, on
support) to familial (e.g. Articles 209-233, Family Code, on parental
authority).

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second paragraph of Article 213 of the Family Code vesting

on respondent sole custody of Stephanie.
Nor can petitioner rely on the divorce decree’s alleged
invalidity—not because the Illinois court lacked
jurisdiction or that the divorce decree violated Illinois law,
but because the divorce was obtained by his Filipino
spouse26—to support the Agreement’s enforceability. The
argument that foreigners in this jurisdiction are not bound
by foreign divorce decrees is hardly novel. Van Dorn v.
Romillo27 settled the matter by holding that an alien
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spouse of a Filipino is bound by a divorce decree obtained

abroad.28 There, we dismissed the alien divorcee’s
Philippine suit for accounting of alleged post-divorce
conjugal property and rejected his submission that the
foreign divorce (obtained by the Filipino spouse) is not valid
in this jurisdiction in this wise:

“There can be no question as to the validity of that

Nevada divorce in any of the States of the United States.
The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is
contending in this case is that the divorce is not valid and
binding in this jurisdiction, the same being contrary to
local law and public policy.

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26 Petitioner hooks his argument on Gonzales v. Gonzales (58 Phil. 67 [1933]),

Arca v. Javier (95 Phil. 579 [1954]) and Tenchavez v. Escaño (122 Phil. 752; 15
SCRA 355 [1965]). These cases, involving Filipino spouses, merely applied the
“nationality rule” (now embodied in Article 15 of the Civil Code) to reject
validating foreign divorce decrees obtained by Filipino spouses to circumvent the
no-divorce rule in this jurisdiction. They are no authority to support petitioner’s
submission that as to aliens, foreign divorce decrees are void here.
27 223 Phil. 357; 139 SCRA 139 (1985).
28 Id., at pp. 361-363. Van Dorn spawned the second paragraph of Article 26
granting to Filipino spouses of aliens who obtain foreign divorce decrees the right
to remarry. (Republic v. Orbecido III, G.R. No. 154380, 5 October 2005, 472 SCRA
114).

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     It is true that owing to the nationality principle embodied in

Article 15 of the Civil Code, only Philippine nationals are covered
by the policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However,
aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid
according to their national law. In this case, the divorce in
Nevada released private respondent from the marriage
from the standards of American law, under which divorce
dissolves the marriage.
xxxx
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing to
sue in the case below as petitioner’s husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his
own country’s Court, which validly exercised jurisdiction over
him, and whose decision he does not repudiate, he is estopped by
his own representation before said Court from asserting his right
over the alleged conjugal property.” (Emphasis supplied)

  We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to

dismiss criminal complaints for adultery filed by the alien
divorcee (who obtained the foreign divorce decree) against
his former Filipino spouse because he no longer qualified as
“offended spouse” entitled to file the complaints under
Philippine procedural rules. Thus, it should be clear by now
that a foreign divorce decree carries as much validity

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against the alien divorcee in this jurisdiction as it does in

the jurisdiction of the alien’s nationality, irrespective of
who obtained the divorce.

The Facts of the Case and Nature of Proceeding

Justify Remand
Instead of ordering the dismissal of petitioner’s suit, the
logical end to its lack of cause of action, we remand the case
for the trial court to settle the question of Stephanie’s cus-

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29 G.R. No. 80116, 30 June 1989, 174 SCRA 653.

671

tody. Stephanie is now nearly 15 years old, thus removing

the case outside of the ambit of the mandatory maternal
custody regime under Article 213 and bringing it within
coverage of the default standard on child custody
proceedings – the best interest of the child.30 As the
question of custody is already before the trial court and the
child’s parents, by executing the Agreement, initially
showed inclination to share custody, it is in the interest of
swift and efficient rendition of justice to allow the parties
to take advantage of the court’s jurisdiction, submit
evidence on the custodial arrangement best serving
Stephanie’s interest, and let the trial court render
judgment. This disposition is consistent with the settled
doctrine that in child custody proceedings, equity may be
invoked to serve the child’s best interest.31
  WHEREFORE, we REVERSE the Orders dated 1
March 2005 and 23 June 2005 of the Regional Trial Court
of Makati City, Branch 60. The case is REMANDED for
further proceedings consistent with this ruling.
 SO ORDERED.

Brion, Del Castillo and Perez, JJ., concur.

_______________

30 Bagtas v. Santos, G.R. No. 166682, 27 November 2009.

31 Thus, in habeas corpus proceedings involving child custody, judicial
resolutions extend beyond the custodial right of persons exercising
parental authority over the child and reach issues on custodial
arrangements serving the child’s best interest (see Bagtas v. Santos, Id.,
remanding a habeas corpus petition to determine the fitness of the legal
custodians notwithstanding that the question of illegal withholding of
custody has been mooted by the transfer of the child’s physical custody to
the habeas corpus petitioners).

672

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

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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:

_______________

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.

673

“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.

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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 par-
674

ents. 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
675

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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 sug-
676

gest 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 Philippines. Although Herald’s complaint
before the trial court appears to be one for specific
performance, it is, at heart, an action for custody and
enforcement of parental rights. Being so, the Regional Trial
Courts have exclusive original jurisdiction over the action.

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I concur in the decision subject to my above

reservations.

Orders reversed, case remanded.

Note.—A foreign divorce can be recognized here,

provided the divorce decree is proven as a fact and as valid
under the national law of alien spouse. (Bayot vs. Court of
Appeals, 570 SCRA 472 [2008])
——o0o—— 

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