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Nerissa Z. Perez (petitioner) v. The Court of Appeal and Ray C. Perez  (respondents)

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Court/Judicial body:  Supreme Court of the Philippines
Date: 29 March 1996 CRC
Provisions:  Article 3: The best interests of the child
Domestic provisions: Article 213 of the Family Code: No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Rule 99, Section 6 (Adoption and Custody of Minors): 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. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.

Case summary

Background: This case concerned a custody dispute between the two parents of a young child. The father was living in the Philippines and the mother – in New York. As part of the couple’s separation, the mother sought a court order and was awarded custody of the child based on Article 213 of the Family Code which states that no child under seven years of age shall be separated from the mother unless there are compelling reasons to order otherwise. This decision was later reversed by the Court of Appeal which held that, based on the facts, granting custody to the child’s father would be in the child’s best interest and welfare. The current case before the Supreme Court is the final appeal made by the mother.

Issue and resolution: Custody of child following parental separation. After a detailed review of the considerations to be taken into account when assessing custody cases, the Court granted the mother’s appeal and awarded her custody.

Court reasoning: It was said that when deciding on the custody of a child based on the Family Code, the court’s duty is to make a decision based on the best interest and welfare of the child and not to declare which party committed the greater fault in their domestic quarrel. The provisions of law 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 rationale for this provision was explained by the Code Commission: “The general rule is recommended in order to avoid many 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 divorce decree will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation.”

The Court observed that, given the children’s basic need for their mothers’ loving care, only the most compelling reasons can justify the courts 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. The Court then referred to the best interest principle in Article 3 of the CRC and turned to an examination of the  relevant factors presented by the contending parents, such as their material resources, social and moral situations. The Court referred to previous case law, in which an exception was made to the rule that custody should be awarded to the mother in circumstances such as neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease. However, in this case, based on the presented facts, court could not find any compelling reasons to deny the mother custody of the child and concluded that a mother’s role in the life of her child, is well-nigh irreplaceable.

Excerpt citing CRC and other relevant human rights 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.”

CRIN comments:  CRIN believes this case in inconsistent with the CRC. Although the Court correctly refers to the best interests principle, as required by the Convention, they only apply it when assessing whether there are grounds to overcome the presumption that the mother be awarded custody, rather than assess which parent’s custody would best serve the interests of the child.

Citation:  G.R. No. 118870

Link to full judgement: