Wong v. Yap

FIRST DIVISION

[G.R. No. 234963. February 5, 2018.]

NICOLE TRACEY S. WONG, petitioner,vs. JOSECARLO ANTON R. YAP, respondent.

NOTICE

Sis/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedFebruary 5, 2018, which reads as follows:

"G.R. No. 234963 — NICOLE TRACEY S. WONG, Petitioner, v. JOSECARLO ANTON R. YAP, Respondent. — The petitioner's motion for an extension of thirty (30) days within which to file a petition for review on certiorari is GRANTED, counted from the expiration of the reglementary period.

The Court further resolves to DENY the petition for review on certiorari, which assails the Amended Decision dated October 20, 2017 of the Court of Appeals in CA-G.R. SP No. 142646 for failure of petitioner Nicole Tracey S. Wong (petitioner) to sufficiently show that the appellate court committed any reversible error in the assailed ruling.

The instant case arose from an incident in Special Proceedings Case No. 9032, the petition for custody of minor filed by respondent Josecarlo Anton R. Yap (respondent) against petitioner involving their minor daughter, Catherine Marie Wong Yap (Cami). The child was born to the couple out of wedlock on October 22, 2011. In 2013, the couple separated and Cami was raised in the care of respondent's family.

In a Resolution dated December 16, 2014, the Regional Trial Court (RTC) of Angeles City, Branch 59 granted the motion of petitioner to be given special provisional custody over Cami for the holiday period of December 21, 2014 until January 4, 2015. The RTC further resolved that, after said period, petitioner and respondent shall exercise joint provisional custody over Cami. Accordingly, Cami shall stay with petitioner during the weekends and she shall stay with respondent during the rest of the week.

Both parties moved for a reconsideration of the above resolution, but these motions were denied in the RTC Resolution dated July 30, 2015.

Petitioner then filed a petition for certiorari before the Court of Appeals.

Initially, the Court of Appeals granted the petition for certiorari in a Decision dated February 20, 2017 and granted in favor of petitioner sole custody over Cami.

On respondent's motion for reconsideration, however, the Court of Appeals rendered the assailed Amended Decision dated October 20, 2017, which reversed its earlier ruling and upheld the Resolutions dated December 16, 2014 and July 30, 2015 of the RTC.

The Court affirms the findings of the Court of Appeals in the assailed amended decision that the RTC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in awarding in favor of both petitioner and respondent joint provisional custody over Cami during the pendency of Special Proceedings Case No. 9032 in the trial court.

In issuing a provisional order awarding custody of a minor child, the first option in the order of preference therefor is that custody shall be awarded to both parents jointly, as far as practicable. This is explicitly embodied in A.M. No. 02-11-12-SC, 1 as well as in A.M. No. 03-04-04-SC. 2 Section 14 of A.M. No. 03-04-04-SC likewise provides that:

SECTION 14. Factors to consider in determining custody. — In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.

Here, the trial court found that, under the specific circumstances of the case, it is in the best interests of Cami that both parents exercise custody over her. Petitioner — the non-custodial parent in this case — is also entitled to have an opportunity to exercise her parental rights with respect to Cami, even if the child would temporarily be removed from her familiar environment.

Similarly, the Court of Appeals found that, under the prevailing predicament and status of petitioner and respondent, it was more wholesome morally and emotionally for Cami that joint parental custody be exercised over her. While it was understandable for petitioner to assert her right to have sole custody over Cami, the emotional and psychological effects thereof upon Cami should primarily be considered. To suddenly transfer Cami's custody from respondent to petitioner may be traumatizing for the child who, all her life, had been in the company of respondent and the latter's parents.

Lastly, the Court notes that the joint custody ordered by the RTC and the Court of Appeals is only provisional in nature. Therefore, the same does not preclude petitioner from proving her fitness to exercise exclusive parental authority over Cami at the trial of Special Proceedings Case No. 9032.

In fine, the Court finds no reason to disturb the assailed ruling of the Court of Appeals.

SO ORDERED."

Very truly yours,

 

(SGD.) LIBRADA C. BUENADeputy Division Clerk of Court

 

Footnotes

1. Rule on Provisional Orders, which took effect on March 15, 2003. Section 4 of said Rule pertinently provides:

   SECTION 4. Child Custody. — In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child.

xxx xxx xxx

   The court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child's actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child.

2. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minor, which took effect on May 15, 2003. Relevantly, Section 13 thereof states:

   SECTION 13. Provisional order awarding custody. — After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody:

   (a) Both parents jointly;

   (b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;

   (c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;

   (d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

   (e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or

   (f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.