SALIENTES vs.
ABANILLA respondent was simply an action for custody, but
August 29, 2006 not habeas corpus. Petitioners assert that habeas
corpus is unavailable against the mother who, under
FACTS: Loran and Marie Antonette are the parents of the law, has the right of custody of the minor. They
Lorenzo Emmanuel. They lived with Marie’s parents. insist there was no illegal or involuntary restraint of
Due to in-law problems, Loran suggested that they the minor by his own mother. There was no need for
transfer to their own house but Marie refused so he, the mother to show cause and explain the custody of
alone, left the house and was, later on, prevented her very own child.
from seeing his son.
Respondent’s Contention (Loran Abanilla)
He then instituted a petition for habeas corpus and
custody. Ordered to show cause why Lorenzo Private respondent counters that petitioners'
Emmanuel should not be discharged from restraint argument based on Article 213 of the Family Code
Marie moved for the reconsideration of the order applies only to the second part of his petition
which the court denied. She went to the CA which the regarding the custody of his son. It does not address
affirmed the denial of the lower court. On certiorari, the first part, which pertains to his right as the father
she contended that there was no evidence at all that to see his son. He asserts that the writ of habeas
the 3-year Lorenzo was under restraint and no corpus is available against any person who restrains
evidence of maternal unfitness to deprive the mother the minor's right to see his father and vice versa. He
Marie of her son of tender years. That the writ is avers that the instant petition is merely filed for delay,
unwarranted considering that there is no unlawful for had petitioners really intended to bring the child
restraint by the mother and considering further that before the court in accordance with the new rules on
the law presumes the fitness of the mother, thereby custody of minors, they would have done so on the
negating any notion of such mother illegally dates specified in the January 23, 2003 and the
restraining her own son. She maintains that Loran had February 24, 2003 orders of the trial court.
the burden of showing a compelling reason but failed
to present even a prima facie proof thereof. Private respondent maintains that, under the law, he
Accordingly, the proper remedy is an action for and petitioner Marie Antonette have shared custody
custody and not habeas corpus as the latter is and parental authority over their son. He alleges that
unavailable against the mother who, under the law, at times when petitioner Marie Antonette is out of
has the right of custody of the minor. Loran, on the the country as required of her job as an international
other hand, argued that under the law, he and Marie flight stewardess, he, the father, should have custody
have shared custody and parental authority over their of their son and not the maternal grandparents.
son. That at times that Marie is out of the country as
required of her job as an international flight ISSUE: Whether or not the petition for habeas corpus
stewardess, he, the father, should have custody of is available and should be granted to the petitioner.
their son and not the maternal grandparents.
RULING
Petitioner’s Contention (Marie Antoinette Salientes
and parents)
Habeas corpus may be resorted to in cases where
rightful custody is withheld from a person entitled
Petitioners contend that the order is contrary to thereto. Under Article 211 of the FC, Loran and Marie
Article 213[7] of the Family Code, which provides that Antonette have joint parental authority over their
no child under seven years of age shall be separated minor son and consequently, joint custody. Further,
from the mother unless the court finds compelling although the couple is separated de facto, the issue of
reasons to order otherwise. They maintain that custody has yet to be adjudicated by the court. In the
herein respondent Loran had the burden of showing absence of a judicial grant of custody to one parent,
any compelling reason but failed to present even both parents are entitled to the custody of their child.
a prima facie proof thereof. In this case, Loran’s cause of action is the deprivation
of his right to see his son, hence, the remedy of
Petitioners posit that even assuming that there were habeas corpus is available to him.
compelling reasons, the proper remedy for private
In a petition for habeas corpus, the child’s welfare is
the supreme consideration. The Child and Youth
Welfare Code unequivocally provides that in all
questions regarding the care and custody of the child,
his welfare shall be the paramount consideration.
Article 213 of the FC deals with the judicial
adjudication of custody and serves as a guideline for
the proper award of custody by the court. Petitioners
can raise it as a counterargument for Loran’s petition
for custody. But it is not a basis for preventing the
father to see his own child. Nothing in the said
provision disallows a father from seeing or visiting his
child under 7 years of age.
