PEREZ V CA (G.R.No. 118870, March 29, 1996)

Facts:

Ray Perez is a doctor practicing in Cebu while Nerissa, his wife, (petitioner) is a registered nurse.  After six miscarriages, two operations and a high-risk pregnancy, Nerissa finally gave birth to Ray Perez II in New York on July 20, 1992. Ray stayed with her in the U.S. twice and took care of her when she became pregnant.  Unlike his wife, however, he had only a tourist visa and was not employed.

On January 17, 1993, the couple and their baby arrived in Cebu.  After a few weeks, only Nerissa returned to the U.S.  She alleged that they came home only for a five-week vacation and that they all had round-trip tickets.  However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby.  According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working.  She was supposed to come back immediately after winding up her affairs there.

When Nerissa came home a few days before Ray II’s first birthday, the couple was no longer on good terms.  They had quarrels. Nerissa did not want to live near her in-laws and rely solely on her husband’s meager income of P5,000.00. On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession.  He maintained that it would not be difficult to live here since they have their own home and a car. Despite mediation by the priest, the couple failed to reconcile.

Nerissa filed a petition to surrender the custody of their son to her.

The trial court issued an Order awarding custody to Nerissa citing the second paragraph of Article 213 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.

Upon appeal by Ray Perez, the Court of Appeals reversed the trial court’s order and held that granting custody to the boy’s father would be for the child’s best interest and welfare.

Issue:

Who should have rightful custody of a child?

Held:

Nerissa. Aside from Article 213 of the Family Code, the Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides:

“SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are divorced or living separately and apart from each other, and the questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.” (Italics supplied)

The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise.  The use of the word “shall” in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character.

The general rule that a child under seven years of age shall not be separated from his mother finds its reason in the basic need of a child for his mother’s loving care. Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.

It has long been settled that in custody cases, the foremost consideration is always the welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

In the case, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Nerissa’s present work schedule is not so unmanageable as to deprive her of quality time with her son.  Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Also, delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids under the eagle eyes of the mother. 

Although Ray’s is a general practitioner, the records show that he maintains a clinic, works for several companies on retainer basis and teaches part-time. He cannot possibly give the love and care that a mother gives to his child.