February 2, 2012



     By: Atty. Tito Bundang

Whoever said that “an apple a day keeps the doctor away” may have been unaware that it is not only the apple that maintains a person’s health, but the presence of a loving mother who carefully hands the apple and provides him with the genuine nourishment to keep him in shape. The German-American philosopher and psychologist Erich Fromm once wrote that a “mother’s love is peace. It need not be acquired, it need not be deserved.”

In a recent study in Massachusetts, U.S., researchers from Brandeis University claim that adults who grew up in poor areas and were at greater risk of contracting chronic illnesses like diabetes, stroke or high blood pressure later in life, but had loving nurturing mothers during their growing years, were found to be in better physical health in midlife than others who were not as close to their mothers. Reports on other studies also reveal that a mother’s love is most essential to the mental, emotional, and physical development of the child.  The child’s very first relationship with the mother becomes his model for the relationships he will have throughout his existence.

As if to confirm this fact, Congress passed Republic Act No. 10028, otherwise known as the Expanded Breastfeeding Promotion Act of 2009, which provides that the State adopts as a national policy the practice of “rooming-in” or that of placing the newborn in the same room as, or if possible, beside the mother after delivery up to discharge, to initiate breastfeeding and allow the newborn to feel and connect with his mother’s warmth and caring affection. A mother’s love to a child is a unique and special natural bond that is universally accepted, with science now even confirming it.

The love of a mother for her child has always been recognized in law. “A mother’s concern for her child’s custody is undying—such is a mother’s love”, as the Supreme Court in the case of Teresita Sagala-Eslao v. Court of Appeals, (266SCRA317) so plainly yet poignantly describes it. In Pablo-Gualberto v. Gualberto V (461SCRA450), the High Court discussed that the general rule under Article 213 of the Family Code that, “no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise”, finds reason d’ etre in the basic need of minor children for their mother’s loving care.

Article 363 of the Civil Code from where Article 213 of the Family Code takes its bearing, makes it clear that, “no mother shall be separated from her child under seven years of age unless the court finds compelling reasons for such measure”. This rule, according to the Code Commission, “is recommended in order to avoid a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age….” In Lacson v. San Jose-Lacson (24 SCRA 837), the Court stressed that, “Article 363 prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such a separation is grounded upon compelling reasons as determined by a court.”

Similarly, Article 17 of the Child and Youth Welfare Code (P.D. No. 603) states that in case of separation of parents, no child under five years of age shall be separated from his mother unless the court finds compelling reasons to do so.”

In the above cited Sagala-Eslao case, respondent, after the death of her husband, entrusted the custody of her daughter to her mother-in-law upon the latter’s request. Respondent later remarried and migrated to the U.S. Returning to the Philippines a few months later to take custody of her child, her mother-in-law resisted giving her child back thereby prompting her to file a custody case. The Supreme Court found for the respondent who is the natural mother, noting that when she entrusted the custody of her minor child to her mother-in-law, what she handed was merely a temporary custody and it did not constitute abandonment or renunciation of parental authority. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship, and surrender to a children’s home or an orphan institution. The Court exclaimed that the right of parents for the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship.

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