SEPARATE CONCURRING OPINION
LEONEN, SAJ.:
I concur in the ponencia but express my reservation in the use of the term "sole" custody in the dispositive portion.
In affirming the Court of Appeals' Decision and Resolution, the ponencia adopts the language of the appellate court of awarding "sole" custody only to Harryvette Rowena Tagaña-Carnabuci (respondent mother). In my opinion, however, using the term "primary" custody is more accurate and reflective of the custody arrangement.
Child custody arrangements are a complex set of issues that require a careful resolution by the courts. Various factors must be studied to arrive at a fair outcome, but the paramount consideration of them all is the best interest of the child. Thus, these resulting arrangements on who takes custody of minor children are made on a case-to-case basis; there is no blanket arrangement that can be said to work best for all circumstances.
In the same sense that the ponencia articulates the principle that judgments on the custody of minors are not unalterable,1 speaking in absolutes should he avoided as they fail to reflect true and realistic arrangements.
Here, the use of the term "sole" custody implies that the award is absolute and exclusive to respondent mother. By nomenclature, it eliminates David H. Carnabuci (petitioner father) from having any form of custody over their children. However, the dispositive portion acknowledges that petitioner father can have custody over their children, although under very limited circumstances:
ACCORDINGLY, the Petition is DENIED. The December 12, 2022 Decision and March 2, 2023 Resolution of the Court of Appeals in CA-G.R. SP No. 173454 are AFFIRMED.
i. Respondent Harryvette Rowena Tagaña-Carnabuci and petitioner David Carnabuci shall have joint parental authority over the minors Rocco Antonino T. Carnabuci and Zahara Brigitte T. Carnabuci.
ii. Respondent Harryvette Rowena Tagaña-Carnabuci shall have sole custody over the minors Rocco Antonino T. Carnabuci and Zahara Brigitte T. Carnabuci.
iii. Considering that respondent Harryvette Rowena Tagaña-Carnabuci is currently abroad, the children's maternal grandmother, respondent Joselyn B. Espiritu, is allowed to exercise provisional custody over the children.
iv. Petitioner David Carnabuci is allowed visitation rights over his children under the following conditions:
a. Petitioner David Carnabuci shall have visitation rights over the children every Saturdays and Sundays.
b. Petitioner David Carnabuci can also visit the children on special occasions such as but not limited to their birthdays, even if it does not fall on Saturdays or Sundays, as long as it does not prejudice their education.
c. Petitioner may have the children in his custody during holidays or for five days when the children are in their school break, upon prior written consent of Harryvette Rowena-Canabuci. Provided, that petitioner may have his children only in either the celebration of Christmas Day or New Year's Day, subject to the election of the respondents.
d. The children shall always be accompanied by respondent Joselyn B. Espiritu or any person of her choice.
v. Petitioner David Carnabuci is not permitted to bring the children outside the Province or Rizal unless with the permission of either respondent Harryvette Rowena Tagaña-Carnabuci or respondent Joselyn B. Espiritu.
vi. Petitioner is directed to pay in full the accumulated monthly support of PHP 20,000.00 owed to the children beginning from March 2022 up to receipt of this Decision. He is also directed to continue paying the amount of PHP 20,000.00 to the children every month hereafter. This is inclusive of the children’s basic, medical, and miscellaneous expenses. The full amount shall be deposited to respondent Joselyn B. Espiritu's bank account on or before the fifth day of every month. For this purpose, said respondent is directed to give the details of her bank account to the petitioner.
vii. Respondent Joselyn B. Espiritu is directed to account for the monthly support that she will be receiving from petitioner David Carnabuci and to keep all the receipts relative to the children's expenses using the support provided by petitioner David Carnabuci. She shall keep all accounts and documentations in her custody which must be available upon demand.
SO ORDERED.2 (Emphasis supplied)
Paragraph (iv) (c) of the dispositive portion acknowledges that petitioner father may have custody over their children during holidays or for five days during school breaks, subject to certain restrictions. This seemingly contradicts the award of "sole" custody to respondent mother.
Custody, after all, springs from a parent's exercise of parental authority, which petitioner father did not lose here. In Santos v. Court of Appeals,3 which is also cited in the ponencia, this Court said that in 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."4 This highlights the concept that when a parent takes custody over their children, the child's best interest is still the principal consideration.(awÞhi(
As regards the parent, custody is better described as a set of obligations to further the child's "physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses."5 Declaring the exclusion of petitioner father from having any form of custody, even in the limited instances when he has with him the minor children, would seem to remove or diminish his obligations to his children.
Instead, using the term "primary" instead of "sole" when qualifying the term clarifies the difference between the custody exercised by respondent mother, as opposed to the limited custody petitioner father has over their children. It also dispels any doubt as to who has the superior claim to the children's custody, and who has the subordinate claim. At the same time, it preserves the concept that custody over children is a set of duties that neither parent can escape.
In any case, neither the law nor the rules use the term "sole" custody when awarding it to a parent or a qualified person. The Family Code provides:
ARTICLE 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.6
The Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors7 provides:
SECTION 13. Provisional order awarding custody. — After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor, as far as practicable, the following order of preference shall be observed in the award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;
(c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;
(e) The actual custodian or the minor over twenty-one years of age, unless the former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.
SECTION 18. Judgment. — After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children.
In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of who may be its custodian. In determining the amount of support, the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the standard or living the minor has been accustomed to; and (4) the non-monetary contributions that the parents would make toward the care and well-being of the minor.
The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.8
The award of sole custody, while not disallowed, should be carefully used to only cover instances where the best interest of the child would warrant it. The complete deprivation of custody from a parent entails their exclusion from the child's life.
This is contrary to the finding in this case. Respondent mother, and provisionally, the children's maternal grandmother, were only declared as the main custodians of the minor children, with petitioner father having limited visitation rights and temporary custodial rights. Therefore, it is my opinion that this be reflected by using the term "primary" custody instead of "sole" custody.
ACCORDINGLY, I vote to DENY the Petition.
Footnotes
1 Ponencia, p. 20.
2 Ponencia, pp. 24–25.
3 312 Phil. 484 (1995) [Per J. Romero, Third Division].
4 Id. at 487–488.
5 Id. at 487.
6 FAMILY CODE, art. 213.
7 A.M. No. 03-04-04-SC (2003).
8 A.M. No. 03-04-04-SC (2003), secs. 13, 18.
The Lawphil Project - Arellano Law Foundation
