G.R. No.

115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,

vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children
horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of who, between
the father and mother, is more suitable and better qualified in helping the children to grow into responsible, well-
adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where
Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital. In
1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant status sometime
later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its
liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of husband and wife. On
August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were on a brief vacation in
the Philippines, Reynaldo and Teresita got married, and upon their return to the United States, their second child, a son,
this time, and given the name Reginald Vince, was born on January 12, 1988.

The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed Reynaldo
for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand, contended that
Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses.

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the
children and went back to California. She claims, however, that she spent a lot of money on long distance telephone
calls to keep in constant touch with her children.

Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet completed,
he was sent back by his company to Pittsburgh. He had to leave his children with his sister, co-petitioner Guillerma Layug
and her family.

Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy
against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually rendered
only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita,
meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition for a writ of habeas
corpus against herein two petitioners to gain custody over the children, thus starting the whole proceedings now
reaching this Court.

On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of visitation
to be agreed upon by the parties and to be approved by the Court.

On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring,
reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals
disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and
conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita.

We believe that respondent court resolved the question of custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code which reads:

Art. 363. In all questions on the care, custody, education and property of the children, the latter's
welfare shall be paramount. No mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.

and of Article 213 of the Family Code which in turn provides:

Art. 213. In case of separation of the parents parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age unless the parent chosen is unfit.
The decision under review is based on the report of the Code Commission which drafted Article 213 that a child below
seven years still needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in
equal measure. The commentaries of a member of the Code Commission, former Court of Appeals Justice Alicia Sempio-
Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that a child below seven years
should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her husband. This is on the
theory that moral dereliction has no effect on a baby unable to understand such action. (Handbook on the Family Code
of the Philippines, 1988 Ed., p. 297.)

The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts
and the law which should apply to those facts. The task of choosing the parent to whom custody shall be awarded is not
a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under
or over seven years of age, the paramount criterion must always be the child's interests. Discretion is given to the court
to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration.
In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all controversies regarding the custody of
minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned,
taking into account the respective resources and social and moral situations of the contending parents", and in Medina
vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother, then
the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner:

. . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight
of the basic principle that "in all questions on the care, custody, education and property of children, the
latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for compelling
reasons, even a child under seven may be ordered separated from the mother (do). This is as it should
be, for in the continual evolution of legal institutions, the patria potestas has been transformed from
the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a
chattel of his parents into a radically different institution, due to the influence of Christian faith and
doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no power,
but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for
the welfare of the minor."

As a result, the right of parents to the company and custody of their children is but ancillary to the
proper discharge of parental duties to provide the children with adequate support, education, moral,
intellectual and civic training and development (Civil Code, Art. 356).

(pp. 504-505.)

In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the best
custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is
over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the court may find
the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit under the
circumstances.

In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh
birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in reputable
schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent with whom
they would want to live. Once the choice has been made, the burden returns to the court to investigate if the parent
thus chosen is unfit to assume parental authority and custodial responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children
and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions
and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically
treated as an arbitrary cut off period and not a guide based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing
the "torture and agony" of a mother separated from her children and the humiliation she suffered as a result of her
character being made a key issue in court rather than the feelings and future, the best interests and welfare of her
children. While the bonds between a mother and her small child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than
that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the
child which is the paramount consideration.

We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to the
choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody.

When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to
determine the effects of uprooting her from the Assumption College where she was studying. Four different tests were
administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were very
negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by Rosalind was an
incident where she saw her mother hugging and kissing a "bad" man who lived in their house and worked for her father.
Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally emblazed because of
constant fears that she may have to leave school and her aunt's family to go back to the United States to live with her
mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising from strong conflict with the
mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations of the child
psychologist show that Rosalind chooses petitioners over the private respondent and that her welfare will be best
served by staying with them (pp. 199-205, Rollo).

At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child Rosalind
refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for. Rosalind was
more attached to her Yaya who did everything for her and Reginald. The child was found suffering from emotional shock
caused by her mother's infidelity. The application for travel clearance was recommended for denial (pp. 206-209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the petition
for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed. Considerations
involving the choice made by a child must be ascertained at the time that either parent is given custody over the child.
The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character
change and becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v.
Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of the child must be
determined as of the time that either parent is chosen to be the custodian. At the present time, both children are over 7
years of age and are thus perfectly capable of making a fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe the
father's contention that the children ignored Teresita in court because such an emotional display as described by
Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals
Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What the
Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the matter.

And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding,
especially as her conduct and demeanor in the courtroom (during most of the proceedings) or
elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent temper
that tended to corroborate the alleged violence of her physical punishment of the children (even if only
for ordinary disciplinary purposes) and emotional instability, typified by her failure (or refusal?) to show
deference and respect to the Court and the other parties (pp. 12-13, RTC Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in turn,
states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner Guillerma
Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which stated that the
allegations of bias and unfairness made by Teresita against the psychologist and social worker were not substantiated.

The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also note
that the examinations made by the experts were conducted in late 1991, well over a year before the filing by Teresita of
the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to support
petitioners' position in litigation, because there was then not even an impending possibility of one. That they were
subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were first
obtained.

Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway
the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The persons
who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their
respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et
al. (17 SCRA 988 [1966]).

The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the
request, not of a public officer or agency of the Government, but of a private litigant, does not
necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to
said documents. Even a non-expert private individual may examine the same, if there are facts within his
knowledge which may help, the court in the determination of said issue. Such examination, which may
properly be undertaken by a non-expert private individual, does not, certainly become null and void
when the examiner is an expert and/or an officer of the NBI.

(pp. 991-992.)

In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185
SCRA 352 [1990]):
 . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering
the ability and character of the witness, his actions upon the witness stand, the weight and process of
the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he
testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the
matters about which he testifies, and any other matters which reserve to illuminate his statements. The
opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the
facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may
be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness
and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is
not reviewable in the absence of an abuse of that discretion.

(p. 359)

It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to observe
their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial court was
correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to
board a plane when they were off-loaded because there was no required clearance. They were referred to her office, at
which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker Lopez in her job
appears to be the interview of minors who leave for abroad with their parents or other persons. The interview was for
purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation. On cross-examination,
Social Worker Lopez stated that her assessment of the minor's hatred for her mother was based on the disclosures of
the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics, and the
public trust reposed on a person of her position in the course of doing her job by falsely testifying just to support the
position of any litigant.

The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder also in
Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the interview.
Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were secured because
Assumption College wanted an examination of the child for school purposes and not because of any litigation. She may
have been paid to examine the child and to render a finding based on her examination, but she was not paid to fabricate
such findings in favor of the party who retained her services. In this instance it was not even petitioner Reynaldo but the
school authorities who initiated the same. It cannot be presumed that a professional of her potential and stature would
compromise her professional standing.

Teresita questions the findings of the trial court that:

1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting
marriage with another man.

2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow NSC
employees.

3. She is incapable of providing the children with necessities and conveniences commensurate to their
social standing because she does not even own any home in the Philippines.

4. She is emotionally unstable with ebullient temper.

It is contended that the above findings do not constitute the compelling reasons under the law which would justify
depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been proved
by clear and convincing evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated from
the mother, without considering what the law itself denominates as compelling reasons or relevant considerations to
otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no difficulty in not awarding
custody to the mother, it being in the best interest of the child "to be freed from the obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and
social outlook of [the child] who was in her formative and most impressionable stage . . ."

Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the difference
between right and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an
environment characterized by emotional stability and a certain degree of material sufficiency. There is nothing in the
records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he has been trying his
best to give the children the kind of attention and care which the mother is not in a position to extend.
The argument that the charges against the mother are false is not supported by the records. The findings of the trial
court are based on evidence.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13,
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven across
the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The two were
married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having contracted a
bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further that she told
Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet
Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given credence, it adds to and not
subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against privacy. Confiding
to one's potential rapist about a prior marriage is not a very convincing indication that the potential victim is averse to
the act. The implication created is that the act would be acceptable if not for the prior marriage.

More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is
unlikely against a woman who had driven three days and three nights from California, who went straight to the house of
Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.

Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo and
respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in Pittsburgh
and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter Rosalind
suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and kissing a boarder in
their house. The record also shows that it was Teresita who left the conjugal home and the children, bound for
California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his
company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that letters and written
messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).

The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling reasons"
is neither meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is
the father, but the illicit or immoral activities of the mother had already caused emotional disturbances, personality
conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to mention her conviction for the
crime of bigamy, which from the records appears to have become final (pp. 210-222, Rollo).

Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother
because his job is in the United States while the children will be left behind with their aunt in the Philippines is
misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the
purchase of a steel mill component and various equipment needed by the National Steel Corporation in the Philippines.
Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated January 30,
1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent return to the
Philippines (ff.
p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their
choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a fit
person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no longer applies as the children are over seven years. Assuming
that the presumption should have persuasive value for children only one or two years beyond the age of seven years
mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody to the mother.
The children understand the unfortunate shortcomings of their mother and have been affected in their emotional
growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside, and the
decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City and
presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody of the minors
Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to
costs.

SO ORDERED.
G.R. No. 113054 March 16, 1995

LEOUEL SANTOS, SR., petitioner-appellant,

vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees.

ROMERO, J.:

In this petition for review, we are asked to overturn the decision of the Court of Appeals1 granting custody of six-year old
Leouel Santos, Jr. to his maternal grandparents and not to his father, Santos, Sr. What is sought is a decision which
should definitively settle the matter of the care, custody and control of the boy.

Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for there is man's law to
guide us and that is, the Family Code.

The antecedent facts giving rise to the case at bench are as follows:

Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were married in Iloilo City in
1986. Their union beget only one child, Leouel Santos, Jr. who was born July 18, 1987.

From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of
his maternal grandparents, private respondents herein, Leopoldo and Ofelia Bedia.

Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter's parents, the respondent
spouses Bedia. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy
because petitioner could not afford to do so.

The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner alleged that he is not
aware of her whereabouts and his efforts to locate her in the United States proved futile. Private respondents claim that
although abroad, their daughter Julia had been sending financial support to them for her son.

On September 2, 1990, petitioner along with his two brothers, visited the Bedia household, where three-year old Leouel
Jr. was staying. Private respondents contend that through deceit and false pretensions, petitioner abducted the boy and
clandestinely spirited him away to his hometown in Bacong, Negros Oriental.

The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.," before the
Regional Trial Court of Iloilo City, with Santos, Sr. as respondent.2

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the
child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.3

Petitioner appealed this Order to the Court of Appeals.4 In its decision dated April 30, 1992, respondent appellate court
affirmed the trial court's
order. 5 His motion for reconsideration having been denied,6 petitioner now brings the instant petition for review for a
reversal of the appellate court's decision.

The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his grandparents and not to
himself. He contends that since private respondents have failed to show that petitioner is an unfit and unsuitable father,
substitute parental authority granted to the boy's grandparents under Art. 214 of the Family Code is inappropriate.

Petitioner adds that the reasons relied upon by the private respondents in having custody over the boy, are flimsy and
insufficient to deprive him of his natural and legal right to have custody.

On the other hand, private respondents aver that they can provide an air-conditioned room for the boy and that
petitioner would not be in a position to take care of his son since he has to be assigned to different places. They also
allege that the petitioner did not give a single centavo for the boy's support and maintenance. When the boy was about
to be released from the hospital, they were the ones who paid the fees because their daughter and petitioner had no
money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States.
Furthermore, petitioner's use of trickery and deceit in abducting the child in 1990, after being hospitably treated by
private respondents, does not speak well of his fitness and suitability as a parent.

The Bedias argue that although the law recognizes the right of a parent to his child's custody, ultimately the primary
consideration is what is best for the happiness and welfare of the latter. As maternal grandparents who have amply
demonstrated their love and affection for the boy since his infancy, they claim to be in the best position to promote the
child's welfare.

The issue to be resolved here boils down to who should properly be awarded custody of the minor Leouel Santos, Jr.
The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria
potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latter' s needs.7 It is a mass of rights and obligations which the law
grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of
their intellect and the education of their heart and senses.8 As regards parental authority, "there is no power, but a task;
no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor."9

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases
authorized by law. 10 The right attached to parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. 11 When a
parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is
merely temporary custody and it does not constitute a renunciation of parental authority. 12 Even if a definite
renunciation is manifest, the law still disallows the same. 13

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep
them in their custody and
company. 14 The child's welfare is always the paramount consideration in all questions concerning his care and
custody. 15

The law vests on the father and mother joint parental authority over the persons of their common children. 16 In case of
absence or death of either parent, the parent present shall continue exercising parental authority. 17 Only in case of the
parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving
grandparent. 18 The situation obtaining in the case at bench is one where the mother of the minor Santos, Jr., is working
in the United States while the father, petitioner Santos, Sr., is present. Not only are they physically apart but are also
emotionally separated. There has been no decree of legal separation and petitioner's attempt to obtain an annulment of
the marriage on the ground of psychological incapacity of his wife has failed. 19

Petitioner assails the decisions of both the trial court and the appellate court to award custody of his minor son to his
parents-in-law, the Bedia spouses on the ground that under Art. 214 of the Family Code, substitute parental authority of
the grandparents is proper only when both parents are dead, absent or unsuitable. Petitioner's unfitness, according to
him, has not been successfully shown by private respondents.

The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) is "depraved, a habitual
drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to
have custody of minor Leouel Santos Jr." 20

The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted as its own the latter's
observations, to wit:

From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor
Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents
the petitioners herein. The petitioners have amply demonstrated their love and devotion to their
grandson while the natural father, respondent herein, has shown little interest in his welfare as
reflected by his conduct in the past. Moreover the fact that petitioners are well-off financially, should be
carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties
with his maternal grandparents might deprive the boy of an eventual college education and other
material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous
financial support to his son, while, upon the other hand, the latter receives so much bounty from his
maternal grandparents and his mother as well, who is now gainfully employed in the United States.
Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to
another, and, in these troubled times, may have pressing and compelling military duties which may
prevent him from attending to his son at times when the latter needs him most, militates strongly
against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender
care of those who can provide for it. 21

We find the aforementioned considerations insufficient to defeat petitioner's parental authority and the concomitant
right to have custody over the minor Leouel Santos, Jr., particularly since he has not been shown to be an unsuitable and
unfit parent. Private respondents' demonstrated love and affection for the boy, notwithstanding, the legitimate father is
still preferred over the grandparents. 22 The latter's wealth is not a deciding factor, particularly because there is no proof
that at the present time, petitioner is in no position to support the boy. The fact that he was unable to provide financial
support for his minor son from birth up to over three years when he took the boy from his in-laws without permission,
should not be sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous
inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of
the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious
efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It
would also give the father a chance to prove his love for his son and for the son to experience the warmth and support
which a father can give.
His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to
different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to
deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of
their duties and assignments, such as temporary separation from their families.

Petitioner's employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a
ground to wrest custody from him.

Private respondents' attachment to the young boy whom they have reared for the past three years is understandable.
Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the
parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact
which has not been proven here.

The strong bonds of love and affection possessed by private respondents as grandparents should not be seen as
incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say whether the
petitioner's financial standing may improve in the future?

WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated April 30, 1992 as well as
its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE. Custody over the minor Leouel Santos Jr.
is awarded to his legitimate father, herein petitioner Leouel Santos, Sr.

SO ORDERED.