GR L 4362; (August, 1951) (Digest)
G.R. No. L-4362; August 31, 1951
Maximino A. Garcia, petitioner-appellant, vs. Patrocinio Pongan, respondent-appellee.
FACTS
A petition for habeas corpus was filed in the Court of First Instance of Cebu by Maximino A. Garcia against Patrocinio Pongan to recover the custody of Teonila Garcia, born on November 18, 1938. Teonila is a natural child of both parties, as they were free to marry at the time of her conception. After a hearing, the lower court denied the appellant’s petition and awarded custody of Teonila to the respondent mother. The petitioner father appealed this judgment. Both parents have recognized the minor child: the father by a court judgment, and the mother voluntarily by testifying under oath in court that Teonila is her natural child, which constitutes a valid means of recognition under the Civil Code. The minor child, being over ten years of age, expressed a preference to live with her mother.
ISSUE
Whether the lower court erred in awarding the custody of the minor natural child, Teonila Garcia, to the respondent mother instead of the petitioner father.
RULING
The Supreme Court affirmed the lower court’s order awarding custody to the mother. The Court held that both parents, having legally recognized the minor as their natural child, jointly exercise parental authority over her. Under Article 316 of the Civil Code, this authority includes the duty and right to keep the child in their company. However, Section 6, Rule 100 of the Rules of Court, though specifically referring to legitimate children of divorced or separated parents, is applicable by analogy to recognized natural children when both parents have recognized the child. This rule permits a child over ten years of age to choose which parent to live with, unless the chosen parent is unfit due to moral depravity, habitual drunkenness, incapacity, or poverty. Since Teonila Garcia was over ten and preferred to live with her mother, and there was no showing that the mother was unfit, the court did not err in awarding her custody. The award serves the best interest of the child.