Bar Q and A #15

1.) For purpose of this question, assume all formalities and procedural requirements have been complied with. In 1970, Ramon and Dessa got married. Prior to their marriage, Ramon had a child, Anna. In 1971 and 1972, Ramon and Dessa legally adopted Cherry and Michelle respectively. In 1973, Dessa died while giving birth to Larry Anna had a child, Lia. Anna never married. Cherry, on the other hand, legally adopted Shelly. Larry had twins, Hans and Gretel, with his girlfriend, Fiona. In 2005, Anna, Larry and Cherry died in a car accident. In 2007, Ramon died. Who may inherit from Ramon and who may not? Give your reason briefly.

The following may inherit from Ramon:

Michelle, as an adopted child of Ramon, will inherit as a legitimate child of As an adopted child, Michelle has all the rights of a legitimate child. (Sec 18, Domestic Adoption Law)
Lia will inherit in representation of Although Lia is an illegitimate child, she is not barred by Articles 992, because her mother Anna is an illegitimate herself. She will represent Anna as regards Anna's legitime under Art. 902 and as regards Anna's intestate share under Art. 990.

The following may not inherit from Ramon:

Shelly, being an adopted child, she cannot represent This is because adoption creates a personal legal relation only between the adopter and the adopted. The law on representation requires the representative to be a legal heir of the person he is representing and also of the person from whom the person being represented was supposed to inherit. While Shelly is a legal heir of Cherry, Shelly is not a legal heir of Ramon. Adoption created a purely personal legal relation only between Cherry and Shelly.
Hans and Gretel are barred from inheriting from Ramon under 992. Being illegitimate children, they cannot inherit ab intestato from Ramon.

2.) Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Elena, bore him no children although Elena has a daughter Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy's now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandy's birth. All the children, including Amy, now live with Andrew in his house. Is there any legal obstacle to the legal adoption of Amy by Andrew? To the legal adoption of Sandy by Andrew and Elena?

No, there is no legal obstacle to the legal adoption of Amy by Andrew. While a person of age may not be adopted, Amy falls within two exceptions: (1) she is an illegitimate child and she is being adopted by her illegitimate father to improve her status; and (2) even on the assumption that she is not an illegitimate child of Andrew, she may still be adopted, although of legal age, because she has been consistently considered and treated by the adopter as his own child since minority. In fact, she has been living with him until now.

There is a legal obstacle to the adoption of Sandy by Andrew and Elena. Andrew and Elena cannot adopt jointly because they are not married.

3.) Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-year-old foundling who had a severe heart ailment. During the pendency of the adoption proceedings, Rafael died of natural causes. The Office of the Solicitor General files a motion to dismiss the petition on the ground that the case can no longer proceed because of the petitioner’s death. a) Should the case be dismissed? Explain. b) Will your answer be the same if it was Dolly who died during the pendency of the adoption proceedings? Explain.

a) It depends on the stage of the proceedings when Rafael died. If he died after all the requirements under the law have been complied with and the case is already submitted for resolution, the court may grant the petition and issue a decree of adoption despite the death of the adopter. (Sec. 13, RA 8552) Otherwise, the death of the petitioner shall have the effect terminating the proceedings.

b) No, if it was Dolly who died, the case should be dismissed. Her death terminates the proceedings. (Art. 13, RA 8552)

4.) Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of their marriage, Rex begot a child by another woman. He is now 10 years of age. On Lea’s discovery of Rex’s fathering a child by another woman, she filed a petition for legal separation which was granted. Rex now wants to adopt his illegitimate child. A. Whose consent is needed for Rex’s adoption of his illegitimate child? B. If there was no legal separation, can Rex still adopt his illegitimate child? Explain.

A. The consent of the 14-year-old legitimate child, of the 10-year-old illegitimate child and of the biological mother of the illegitimate child are needed for the adoption. (Sec. 7 and 9, RA 8552) The consent of Lea is no longer required because there was already a final decree of legal separation.

B. Yes, he can still adopt his illegitimate child but with the consent of his spouse, of his 14- year-old legitimate child, of the illegitimate child, and of the biological mother of the illegitimate child. (Sec. 7 and 9, RA 8552)

5.) Eighteen-year-old Filipina Patrice had a daughter out of wedlock whom she named Laurie. At 26, Patrice married American citizen John who brought her to live with him in the United States of America. John at once signified his willingness to adopt Laurie. Can John file the petition for adoption? If yes, what are the requirements? If no, why?

No, John cannot file the petition to adopt alone. Philippine law requires husband and wife to adopt jointly except on certain situations enumerated in the law. The case of John does not fall in any of the exceptions. (RA 8552)

6.) Hans Berber, a German national, and his Filipino wife, Rhoda, are permanent residents of Canada. They desire so much to adopt Magno, an 8-year old orphaned boy and a baptismal godson of Rhoda. Since the accidental death of Magno's parents in 2004, he has been staying with his aunt who, however, could hardly afford to feed her own family. Unfortunately, Hans and Rhoda cannot come to the Philippines to adopt Magno although they possess all the qualifications as adoptive parents. Is there a possibility for them to adopt Magno? How should they go about it?

Under RA 8043, establishing the rules for inter- country adoption of Filipino children, the spouses may file an application to adopt a Filipino child with the Inter-country Adoption Board (ICAB) after they have been determined eligible and fit to adopt by the State Welfare Agency or a licensed adoption agency in Canada. The Canadian agency will forward the required supporting documents to the ICAB for matching with a Filipino child. The spouses, after filing a petition with the ICAB, shall be issued the Placement Authority and when all the travel documents of the child who is declared legally eligible for adoption as determined by the ICAB, are ready the adoptive parents or any one of them shall personally fetch the child in the Philippines for adoption in the court of the foreigner’s country.

7.) Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Elena, bore him no children although Elena has a daughter Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy's now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandy's birth. All the children, including Amy, now live with Andrew in his house. a) In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Jane, and Sandy assuming that all of them have the means to support him? b) Can Amy, Jon, Ryan, Jane, and Sandy legally claim support from each other?

a) Andrew can claim support from them all, except from Sandy and Jane, who is not his child, legitimate, illegitimate or adopted.

b) Amy, Jon and Ryan, can legally claim support from each other under Art. 196 of the FC which provides that brothers and sisters not legitimately related, whether of the full or half-blood, are bound to support each other except when the need for support is due to a cause imputable to the claimant’s fault or negligence. Jane and Sandy, however, cannot legally claim support from each other and from Amy, Jon and Ryan because they are not related to any of them.

8.) Under Article 213 of the Family Code, no child under 7 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. 1) Explain the rationale of this provision. 2) Give at least 3 examples of “compelling reasons” which justify the taking away from the mother’s custody of her child under 7 years of age.

1) The rationale of the provision is that a child below 7 years old needs the love and care which only its mother can give. The welfare of the child is given the highest priority and the interest of the child prevails over procedural rules.
2) The following have been considered as “compelling reasons” to deprive a mother of custody:

a. Neglect,
b. Abandonment,
c. Unemployment,
d. Immorality (Espiritu v. CA, 242 SCRA 362 [1995]),
e. Alcoholism,
f. Drug addiction,
g. Maltreatment,
h. Insanity,
i. Highly communicable serious disease,
j. Grave physical handicap,
k. Serious and credible threat by the child to ham himself if separated from his mother. (Luna v. CA 137 SCRA 7 [1985])

9.) Distinguish briefly but clearly between: Substitute parental authority and special parental authority.

In substitute parental authority, the parents lose their parental authority in favor of the substitute who acquires it to the exclusion of the parents. In special parental authority, the parents or anyone exercising parental authority does not lose parental authority. Those who are charged with special parental authority exercise such authority only during the time that the child is in their custody or supervision.

Substitute parental authority displaces parental authority while special parental authority concurs with parental authority.

10.) If during class hours, while the teacher was chatting with other teachers in the school corridor, a 7 year old male pupil stabs the eye of another boy with a ball pen during a fight, causing permanent blindness to the victim, who could be liable for damages for the boy’s injury: the teacher, the school authorities, or the guilty boy’s parents? Explain.

The school, its administrators, and teachers have special parental authority and responsibility over the minor child while under their supervision, instruction or custody (Art.218, FC). They are principally and solidarily liable for the damages caused by the acts or omissions of the unemancipated minor unless they exercised the proper diligence required under the circumstances. (Art. 219, FC) In the problem, the TEACHER and the SCHOOL AUTHORITIES are

liable for the blindness of the victim, because the student who causes it was under their special parental authority and they were negligent. They were negligent because they were chatting in the corridor during the class period when the stabbing incident occurred. The incident could have been prevented had the teacher been inside the classroom at that time. The guilty boy’s PARENTS are subsidiarily liable under Article 219 of the Family Code.

The following may inherit from Ramon:

Michelle, as an adopted child of Ramon, will inherit as a legitimate child of As an adopted child, Michelle has all the rights of a legitimate child. (Sec 18, Domestic Adoption Law)

Lia will inherit in representation of Although Lia is an illegitimate child, she is not barred by Articles 992, because her mother Anna is an illegitimate herself. She will represent Anna as regards Anna's legitime under Art. 902 and as regards Anna's intestate share under Art. 990.

The following may not inherit from Ramon:

Hans and Gretel are barred from inheriting from Ramon under 992. Being illegitimate children, they cannot inherit ab intestato from Ramon.

There is a legal obstacle to the adoption of Sandy by Andrew and Elena. Andrew and Elena cannot adopt jointly because they are not married.

b) No, if it was Dolly who died, the case should be dismissed. Her death terminates the proceedings. (Art. 13, RA 8552)

A. The consent of the 14-year-old legitimate child, of the 10-year-old illegitimate child and of the biological mother of the illegitimate child are needed for the adoption. (Sec. 7 and 9, RA 8552) The consent of Lea is no longer required because there was already a final decree of legal separation.

B. Yes, he can still adopt his illegitimate child but with the consent of his spouse, of his 14- year-old legitimate child, of the illegitimate child, and of the biological mother of the illegitimate child. (Sec. 7 and 9, RA 8552)

No, John cannot file the petition to adopt alone. Philippine law requires husband and wife to adopt jointly except on certain situations enumerated in the law. The case of John does not fall in any of the exceptions. (RA 8552)

a) Andrew can claim support from them all, except from Sandy and Jane, who is not his child, legitimate, illegitimate or adopted.

9.) Distinguish briefly but clearly between: Substitute parental authority and special parental authority.

Substitute parental authority displaces parental authority while special parental authority concurs with parental authority.