Substitute
and Special Parental Authority
Article 216. In default
of parents or a judicially appointed guardian, the following persons shall
exercise substitute parental authority over the child in order indicated:
1. The
surviving grandparent, as provided in Art. 214;
2. The oldest
brother and sister, over twenty-one years of age, unless unfit or disqualified;
and
3. The
child’s actual custodian, over twenty-one years of age, unless unfit or
disqualified.
Whenever the appointment of a judicial
guardian over the property of the child becomes necessary, the same order of
preference shall be observed. (39a,351a,354a)
Rules:
1. The Law
states that the surviving grandparents are preferred over all other persons.
2. The
custody of a child may be awarded to strangers as provided by law. In certain cases,
if the parents are separated either legally or de facto or both parents are
incapable of taking care of their own child, the court may designate people to
entrust the care, custody and control of a child. (Chua v. Cabangbang, 26 SCRA
791)
3. Parents
are not deprived of the custody and care of their child unless for a cause
(Ibañez de Aldecoa v. Hongkong and shanghai Banking Corp., 30 Phil. 228). The
Law has a strong presumption that the child’s welfare will be best served by
their parents. The burden of proof is on the opposing party even they have the
actual custody of the child.
The legal custody of a child is not
entitled to the aunt of a minor, it is only to the persons as stated in article
126.
Article 217. In case of
foundlings, abandonment, neglected or abused children and other children
similarly situated, parental authority shall be entrusted in summary judicial
proceedings to heads of children’s homes, orphanages and similar institutions
duly accredited by the proper government agency.
A child whose parent are unknown is a
foundling and an abandoned child is the one who has no parental care or
guardianship for at least 6 months.
CASE DIGEST
Chua vs.
Cabangbang
Facts: As a youth Pacita Chua supported
herself by working as a hostess in a nightclub. Without the benefit of marriage,
she had a secret sexual relationship with a man. She first lived with Chua Ben
in 1950 by whom she had a child who died in infancy. Afterwards she cohabited
with Sy Sia Lay by whom she had two children named Robert and Betty Chua Sy. Later,
they separate.
Finding no one to fall back on after their
separation, Pacita Chua lingered in and around nightclubs and gambling joints,
until she met Victor Tan Villareal. In due time she became the latter's
mistress. Which she gave birth to another child. when this last child was still
an infant, she and Villareal separated. Without means to support the said
child, Pacita Chua gave her away to a comadre in Cebu.
Bartolome Cabangbang and his wife, a
childless couple, acquired the custody of the child Betty who was then barely
four months old. They have since brought her up as their own. They had her
christened as Grace Cabangbang.
It is the lower court's finding that
the child was given to the Cabangbang spouses by Villareal with the knowledge
and consent of Pacita Chua.
Pacita Chua thru counsel demanded the
surrender to her of the custody of the child. Failing to secure such custody. Betty
Chua Sy also known as Grace Cabangbang to be under the custody of respondents
Mr. and Mrs. Cabangbang.
ISSUE: Whether
or not Mr. and Mrs. Cabangbang may have the custody of the child even the
couple are not related by consanguinity or affinity?
HELD: Yes! from
the moment the child was given to them respondent Flora Cabangbang took care of
her as if she were her own flesh and blood, had her baptized, and when she
reached school age enrolled her in a reputable exclusive school, for girls. However,
the petitioner has no regular source of income, and it is doubtful, to say the
very least, that she can provide the child with the barest necessities of life,
let alone send her to school. There is no insurance at all that the alleged
father, Sy Sia Lay would resume giving the petitioner support once she and the
child are reunited.
When petitioner abandoned the child, she
lost her parental authority over the child.
the law provides that in certain cases
the custody of a child may be awarded even to strangers, as against either the
father or the mother or against both. Thus, in proceedings involving a child
whose parents are separated — either legally or de facto — and where it appears
that both parents are improper persons to whom to entrust the care, custody and
control of the child, "the court may either designate the paternal or
maternal grandparent of the child, or his oldest brother or sister, or some
reputable and discreet person to take charge of such child, or commit it to and
suitable asylum, children's home, or benevolent society."
·
Family
Code of the Philippines Judge
Albano, Ed Vincent S. (2017)
Prepared
by:
Kath
Lyn B. Flores
College of Law
Laguna State Polytechnic University
Santa Cruz Laguna
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