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Nerissa Perez vs. Court of Appeals Case Digest

Facts: Ray Perez, a doctor, and Nerissa, a registered nurse were married. They had a son named RJ. In 1998, Nerissa began working in the United States. She became a resident alien in February 1992. Ray stayed with her in the U.S. twice but unlike his wife, however, he had only a tourist visa and was not employed.

In 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the U.S. She alleged that they came home only for a five-week vacation and that they all had round-trip tickets. However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby. According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working. She was supposed to come back immediately after winding up her affairs there.

When Nerissa came home a few days before RJ's first birthday, the couple was no longer on good terms. Nerissa was forced to move to her parents home. Nerissa filed a petition for habeas corpus asking respondent Ray to surrender the custody of their son, RJ, to her.

The trial court awarded the custody of RJ to Nerissa, citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. The CA reversed the trial court's order and awarded custody of the boy to his father.

Issue:  As between father and mother, who should have rightful custody of a child under 7 years of age?

Held:  When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It 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.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise."

Since the Code does not qualify the word separation to mean legal separation decreed by a court, couples who are separated in fact, such as petitioner and private respondent, are covered within its terms.

The provisions of law quoted above 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 use of the word shall in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character.

The general rule that a child under seven years of age shall not be separated from his mother finds its raison detre in the basic need of a child for his mothers loving care. Only the most compelling of reasons shall justify the courts awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.

The decision under review casts doubt on petitioners capability to take care of the child, particularly since she works on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is alleged that she cannot properly attend to him. This conclusion is as unwarranted as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Second, many a mother, finding herself in such a position, has invited her own mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after the child until he is able to take care of himself. Others go on leave from work until such time as the child can be entrusted to day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids or yayas under the eagle eyes of the mother. (Nerissa Perez vs. Court of Appeals, G.R. No. 118870. March 29, 1996)

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