G.R. No. 118870. March 29, 1996.
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS and RAY C. PEREZ, respondents.

FACTS

Petitioner Nerissa Z. Perez and respondent Ray C. Perez are a married couple. After a difficult pregnancy, Nerissa gave birth to their son, Ray Perez II, in New York on July 20, 1992. Nerissa, a nurse, was a resident alien employed in the U.S., while Ray, a doctor, practiced in Cebu. In January 1993, the family visited the Philippines. Nerissa returned to the U.S. alone after a few weeks, alleging it was a vacation, while Ray remained with the child, claiming they had agreed to reside permanently in the Philippines. Their relationship deteriorated.
Nerissa filed a petition for habeas corpus to obtain custody of their son. The Regional Trial Court awarded custody to Nerissa, applying Article 213 of the Family Code, which mandates that no child under seven years shall be separated from the mother unless compelling reasons exist. The Court of Appeals reversed this decision, awarding custody to the father, Ray, finding compelling reasons to deviate from the maternal preference rule.

ISSUE

Whether the Court of Appeals erred in reversing the trial court and awarding custody of the minor child to the father, thereby finding compelling reasons to separate the child under seven from the mother under Article 213 of the Family Code.

RULING

The Supreme Court REVERSED the Court of Appeals and REINSTATED the trial court’s order awarding custody to the mother. The Court emphasized that Article 213 establishes a mandatory rule: a child under seven years old shall not be separated from the mother. The word “shall” is imperative. The provision creates a strong presumption in favor of maternal custody, which can be overcome only by “compelling reasons” for the child’s welfare.
The Court found no such compelling reasons in this case. The appellate court’s rationale—that the father could provide a stable home in the Philippines while the mother worked abroad—did not constitute a compelling reason to override the statutory mandate. The mother’s employment abroad, by itself, does not render her unfit or pose a detriment to the child’s well-being sufficient to separate him from her care during his tender years. The paramount consideration is the child’s welfare, and for children under seven, the law presumes this welfare is best served by being with the mother. The father’s arguments pertained more to practical conveniences and parental preference rather than the compelling circumstances required by law to justify depriving a young child of maternal custody.