Legal presumptions
A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The Philippine Star) - November 14, 2018 - 12:00am

Our laws provide special safeguards and care for children including appropriate legal protection before and after birth. In case of assault on the children’s rights by those who take advantage of their innocence and vulnerability, and in all questions regarding their care, custody, education and property, as well as actions concerning them whether undertaken by private or social welfare institutions, courts of law, administrative authorities or legislative bodies, their best interests shall be the primary consideration (UN Convention on Rights of the Child, PD 603 Section 8). This is the principle applied in this case of Harry and Jessica.

Almost a year after Harry and Jessica got married, Jessica gave birth to Zander. Their marriage however did not last long because Harry filed a Petition before the Regional Trial Court (RTC) to have it annulled on the ground of bigamy. Harry claimed that before he married Jessica, she was already married to Niko for almost nine years and said marriage was never annulled. Harry also found out that Niko was still alive and residing at another village within the city.

Jessica did not deny marrying Niko when she was 20 years old, but she averred that the marriage was a sham and that she never lived with him at all. But the RTC ruled that her first marriage to Niko was still valid and existing, so it annulled her marriage to Harry for being bigamous. As a result, Zander was also declared as an illegitimate child. Jessica moved for a reconsideration of a portion of said decision granting Harry, visitation rights any Sunday between 8 a.m. to 12 p.m. She argued that there was nothing in the law granting such rights in favor of the putative father of an illegitimate child. She further asked that Zander’s surname be changed to her maiden name following the rule that an illegitimate child shall use the mother’s surname. Harry opposed her motion and insisted on his visitation rights and retention of his surname.

The RTC denied Jessica’s motion ruling that the emotional and psychological well being of the boy would be better served if he were allowed to maintain relationships with his father in order to have a father figure that the mother cannot give. The RTC relied on Section 8, PD 603 providing that the best interest of the child shall be the primary consideration on this matter. This ruling was reversed by the Court of Appeals (CA) which declared that since Jessica was legitimately married to Niko when Zander was born, Zander is the legitimate child of their legal and subsisting marriage and cannot be deemed to be the illegitimate child of the void and non-existent marriage between Jessica and Harry. Consequently, Harry cannot claim custody or visitorial rights over Zander or impose his name upon the child as it is without legal basis and would then destroy the existing marriage between Jessica and Niko.

And the Supreme Court (SC) also affirmed the CA decision. The SC said that every reasonable presumption should be made in favor of legitimacy (Article 167 Family Code). This is also based on the broad principles of natural justice and the supposed virtue of the mother as well as on the policy to protect the innocent offspring from the odium of illegitimacy. To overthrow this presumption, it must be shown beyond reasonable doubt that Niko had no access to Jessica and that there is physical impossibility of sexual intercourse between Niko and Jessica within the first 120 days of the 300 days preceding the birth of the child. In this case, when Harry and Jessica were living together in a Village, Niko was living in a nearby village which is a scant four kilometers away. Besides no evidence was presented to disprove personal access between Jessica and Niko, so the separation between Jessica and her first and lawful husband Niko is not such as to make it physically impossible for them to engage in the marital act. Thus the presumption of legitimacy of Zander as the issue of Niko and Jessica stands.

As a legitimate child, Zander shall have the right to bear the surnames of his father Niko and Jessica (Article 176, Family Code). A person’s surname or family name identifies the family to which he belongs and is passed on from parent to child. Hence Harry cannot impose his surname on Zander who is, in the eyes of the law, not related to him.

While Article 49 of the Family Code grants visitation rights to a parent deprived of custody of his children, such right flow from the natural right of both parent and child to each other. There being no such parent-child relationship between Harry and Zander, Harry has no legally demandable right to visit Zander (Concepcion vs. CA and Almonte, G.R. 123450, August 31, 2005)

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