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Proper remedy and adequate proof.

In the battle for custody of a minor, parentage must be convincingly shown by the person claiming to be the real mother or father of the child. At present, parentage can be proven already not only by conventional method but also by the modern scientific method called DNA testing.

But even if this new modern scientific method appears to be more reliable and definite to determine who is the real parent of the child, can the conventional method be still used and relied upon in determining parentage? If so, what is the proper remedy that should be filed in court? These are the issues to be resolved in this case of Anita and Ambo. Anita and Ambo are husband and wife with six children, the youngest being Sonny.

When Sonny was only four months old Anita and Ambo became estranged and already separated thus forcing Anita to work as a laundry woman in the house of Levi and her common law husband, Jess. Usually, Levi would take care of Sonny while Anita is doing laundry.

One time Levi went to Anita's house to fetch her for an urgent laundry. Since Anita was on her way to do some marketing, she asked Levi to wait until she returned.

She also left Sonny. under the care of Levi.

When Anita returned from the market, Levi and Sonny were gone. So Anita rushed to the house of Levi but Levi's maid told her that Levi went out for a stroll with Sonny and would come back later.

Anita thus left and returned to Levi's house three days later only to discover that Levi had moved to another place. So she complained to her Barangay Chairman and to the police who seemed unmoved by her pleas for assistance.

The disappearance of Sonny somehow caused Anita and Ambo to be reconciled and reunited to look for their missing son in other places. But notwithstanding their serious efforts, they saw no traces of Sonny.

Four years later Anita read in a tabloid about the death of Jess whose remains were lying in state in another province. Anita lost no time in going there and saw her son for the first time when the brother of Jess pointed him out to her who was then already named Jess Jr.

But despite demands, Levi refused to return the boy to her. Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1 So Anita and Ambo already filed in the Regional Trial Court (RTC) a Petition for Habeas Corpus to recover their son.

They presented as witnesses the registered nurse who assisted in the delivery of Sonny at her clinic who submitted the clinical records of Sonny, and the brother of Jess who said that Jess was already sterile and could not bear a child, and that he boy named Jess Jr was only an adopted son. Levi on the other hand claimed that despite her ligation she still gave birth to Jess Jr at age 42 in a clinic of a midwife as evidenced by a birth certificate registered by Jess Sr.

, in the local Civil Registrar. But the RTC still ruled in favor of Anita and Ambo and ordered Levi to immediately release Sonny and turn him over to Anita and Ambo.

Levi peacefully surrendered the child but still filed a notice of appeal with the Court of Appeals (CA) which reversed and set aside the RTC decision on the ground that habeas corpus is not the proper remedy and that the evidence presented by Anita was not sufficient to establish that she was the mother of the minor. So Levi got back the minor forcing Anita and Ambo to file an appeal to the Supreme Court (SC).

And according to the SC, the CA decision is wrong. The writ of habeas corpus extends to all cases in which the rightful custody of any person is withheld from the person entitled thereto.

It is the proper remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of another of his own free will. In the habeas corpus proceeding, the minor's identity is relevant and material.

It must be shown that Sonny is the same as Jess Jr. whom Levi insists to be her offspring.

The SC ruled that a close scrutiny of the records of this case reveal that the evidence presented by Anita is sufficient to establish that Jess. Jr is actually Anita's missing son Sonny.

First, Levi herself admitted that after the birth of her second child, she underwent ligation before she cohabited with Jess Sr. The midwife who allegedly delivered Jess Jr.

after the ligation, was not presented in court nor are the records, log book, or discharge order from the clinic submitted. Second, Jess Sr's brother testified that Jess Sr.

is already sterile because of an accident and he admitted to him that Jess Jr. is only an adopted son.

Third, the birth certificate of Jess Jr. was filed by Jess Sr.

himself, instead of the midwife or doctor as required by law. Furthermore the birth certificate stated that Jess Sr.

and Levi were legally married which is false because even Levi herself admitted that she is only the common law wife. Fourth, when the child and Anita appeared in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes which are competent and material to establish parentage.

Fifth, the nurse who assisted Anita in giving birth, presented clinical records establishing Anita's motherhood of Sonny. The SC further said that even if there is a new scientific method of definitely proving parentage of a child which is the DNA testing, parentage can still be resolved by using conventional method as in this case but eventually courts should apply and use the DNA method So the SC reversed the CA decision and reinstated the RTC decision granting the writ of habeas corpus in favor of Anita and Ambo Sr.

and custody of their son Sonny (Tijing and Tijing vs/. Diamante, G.

R. 125901, March 8, 2001) Email: attyjosesison@gmail.

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Publication:Philippines Star (Manila, Philippines)
Date:Dec 19, 2017
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