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Agnes Gamboa-Hirsch v. Hon. Court of Appeals and Franklin Harvey Hirsch

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Court/Judicial body: Supreme Court of the Republic of the Philippines
Date: 11 July 2007 CRC
Provisions: Article 3: Best interests of the child
Other international provisions: None
Domestic provisions: Family Code, Article 213 Child and Youth Welfare Code

Case summary

Background: The mother of a three year old child told the father that she would be taking the child on a brief vacation. The father later discovered that she and the child would not be returning to the family home. The father petitioned the Court of Appeals (CA), which granted joint custody of the child to both the mother and father. This petition by the mother asks the Supreme Court to set aside this decision of the CA.

Issue and resolution: Custody dispute between the two biological parents of a child. The Court revoked the joint custody order and awarded sole custody of the child to the mother.

Court reasoning: Article 3 of the CRC requires that the best interests of the child shall be a primary consideration, and national law, in the same way, provides that the welfare of the child shall be the primary consideration. A “tender-age presumption” exists in Article 213 of the Family Code, under which a mother is to be preferred in awarding custody of children under the age of seven. This presumption can be overturned only by compelling evidence of the mother’s unfitness. The mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease. Here, the mother was not shown to be unsuitable or grossly incapable of caring for her child, therefore there was no compelling reason to take the child from the mother’s custody.
Excerpt citing CRC and other relevant human rights The Convention on the Rights of the Child provides that “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 (emphasis supplied).” The Child and Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care and custody, among others, of the child, his/her welfare shall be the paramount consideration.

CRIN comments: CRIN believes that this decision is not consistent with the CRC. CRIN notes the right of the child to develop relationships with both their parents under Article 9 of the CRC. In this case, the Court failed to consider the best interests of the child in continuing her relationship with her father. The best interests of the child should be evaluated on a case by case basis, rather than through rigid legislative presumptions such as the “tender-age presumption”.

Citation: G.R. No. 174485, 11 July 2007

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