Best interest of child and tender years doctrine


A Filipino couple, both working in the United States (US), met and fell in love. After three (3) years of living together and having a daughter, they got married. A few months later, the wife gave birth to their second child, but their relationship began to deteriorate. The wife claimed that her husband nagged her too much about money matters while he claimed she was a “spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses.”

Eventually, the relationship turned sour and the wife moved to a different state, leaving her husband and children behind. The husband moved back to the Philippines. Due to the demands of his work, however, he was forced to live in the US once again, so he left his children with his sister. It was only two years later that the mother of the children went to the Philippines to gain custody over her children.

The Regional Trial Court (RTC) gave the father sole parental authority and suspended the mother’s parental authority over her children. Visitation rights were to be agreed upon by the parties and approved by the RTC. The Court of Appeals reversed the trial court’s decision and granted custody to the mother and visitation rights to the father on weekends premised on the tender years doctrine, which provides that “no mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.”

The Supreme Court (SC) sustained the findings and conclusions of the RTC, reiterating that the paramount criterion for granting parental authority is the best interest of the child and not the tender years doctrine –

…[the RTC]gave greater attention to the choice of Rosalind (the daughter) and considered in detail all the relevant factors bearing on the issue of custody… 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.

Citing Unson III v. Navarro, it explained 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.”

The SC further explained the rules in ascertaining the child’s best interest –

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.

Lastly, the Court observed that the children’s age and their choice of parent should have been taken into consideration when assessing the chil­drens best interest –
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… The children understand the unfortunate shortcomings of their mother and have been affected in their emotional growth by her behavior (Espiritu v. Court of Appeals, G.R. No. 115640, 15 March 1995, J. Melo).


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