G.R. No. 162734, 29 August 2006
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 which the trial court granted. However, petitioners contend that the order is contrary to 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. They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to present even a prima facie proof thereof, and 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. Respondent on the other hand, asserts that the writ of habeas corpus is available against any person who restrains the minors’ right to see his father and vice versa.
Whether or not the petition for habeas corpus is available and should be granted to the petitioner.
Yes. Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Article 211 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 respondents cause of action is the deprivation of his right to see his child as alleged in his petition. 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 unequivocally provide that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. 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 of A.M. 03-04-04-SC 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 respondents’ 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.
* Case digest by Liezel O. Lagare, LLB-1, Andres Bonifacio Law School, SY 2017-2018