Republic of the Philippines

Supreme Court
Manila

EVELYN ADLER.,
Complainant,

- versus - Civil Case No. 00302-302

FRANK ADLER..,
Respondent,
x--------------------------------------x

RESPONDENT’S POSITION PAPER

RESPONDENT, through the undersigned counsels and unto this

Honorable Court, most respectfully submits this Position Paper.

PREFATORY STATEMENT

The child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of
happiness, love and understanding.1

It is always the paramount criterion in questions of custody to let the

welfare and well-being of the child prevail. “Children are not mere chattels,
nor are they mere playthings for their parents. Absolute right of parents
over the destinies and the lives of their children has, in the modern
changed social conditions, yielded to the considerations of their welfare
as human beings so that they may grow up in a normal balanced manner
to be useful members of the society and the guardian court in case of a
dispute between the mother and the father is expected to strike a just and
proper balance between the requirements of welfare of the minor children
and the rights of their respective parents over them.”2

ACTION

The defense respectfully submits before this Honorable Court that

legal custody of the minor child of Diane Adler (deceased), Mary Adler, be
granted in favor of Frank Adler for it best serves the interest, welfare and
well-being of the child.

1
United Nations Human Rights Convention on the Rights of the Child, Preamble
2
Rosy Jacob vs Jacob A. Chakramakkal., 1973 SCR (3) 918, 5 April, 1973
 THE PARTIES

1. Herein Complainant is Mary Adler’s maternal grandmother.

She can be served with summons by this Honorable Court through her
counsel.

2. Defendant, on the other hand, is the uncle and guardian of

Mary Adler. He is duly represented by the EH302 LAW FIRM through
undersigned counsels and can likewise be served with summons from this
Honorable Court.

STATEMENT OF THE FACTS

Mary Adler is the seven-year-old daughter of the deceased, Diane

Adler, a scholar and mathematician who had devoted her life to solving the
Navier-Stokes problem, one of the unsolved Millenium Prize Problems.
However, she tragically took her own life. Prior to her suicide, she had left
Mary, then only six months old, to her only brother, Frank Adler to whom
she entrusted the care and welfare of the child. The child’s natural father
was never heard of, and the deceased’s mother, herein complainant,
Evelyn Adler, was blatantly absent throughout this agreement, as the
deceased’s unexpected pregnancy, had caused her much disappointment.

Thus, Mary Adler grew up under the care and custody of her uncle,
herein respondent, Frank Adler. From a young age, she had shown signs
of superb intelligence. Her kindergarten teacher, Ms. Bonnie Stevenson
declared that the child was gifted as she was able to solve mathematical
problems well beyond her years.

Upon learning of the formidable mathematical prodigy, complainant

now seeks to gain custody of Mary and mover her to Massachusets,
believing that the child is a “one-in-a-billion” prodigy who should be
specially tutored in preparation for a life devoted in Mathematics, much as
Diane was.

However, respondent remains adamant that his sister would want

her daughter to be in a normal school to have friends and have the
childhood which she never had. The defendant maintains that his custody
would be to the best interest of the child, as a normal childhood, would
afford her the best chance to grow and develop holistically.

2
 ISSUE/S

WHETHER THE CUSTODY OF MARY ADLER, A MINOR, BE GRANTED

IN FAVOR OF HER UNCLE, FRANK ADLER ON THE FOLLOWING
GROUNDS:

I. Frank Adler’s continued custody of Mary Adler (minor) will best

promote her psychological and emotional well-being and in addition,
fulfill the wishes of her mother, Diane Adler on how she wanted Mary
to be raised and reared.

II. Frank Adler has the financial capacity to provide for Mary Adler
contrary to complainant’s exaggerated accounts of the deplorability
of respondent’s living conditions.

III. Evelyn Adler is emotionally and psychologically unfit to exercise

custody over Mary Adler.

DISCUSSIONS

I. FRANK ADLER’S CONTINUED CUSTODY OF MARY ADLER

(MINOR) WILL BEST PROMOTE HER PSYCHOLOGICAL AND
EMOTIONAL WELL-BEING AND IN ADDITION, FULFILL THE
WISHES OF HER MOTHER, DIANE ADLER ON HOW SHE
WANTED MARY TO BE RAISED AND REARED.
--------------------------------------------

Respondent is privy to the express

wishes of Diane Adler on how
her child should be brought up

From the time that the mother of the child died, the uncle was given
the duty by the mother to take care of her child. He was accorded by the
sole trust of the mother that her child will be living a normal life which all
mothers would wish for their own child.

Mary was already showing signs of being gifted at a young age just
like her mother, Diane Adler. In terms of mental acuity, she was advanced
for her age and was already able to solve incredibly complicated calculus
problems at age six. Just like her mother, who was gifted with numbers,
she was taught nothing else by Evelyn Adler (Mary’s grandmother) but to
study and learn which eventually led to a fatal consequence.

Given the childhood she had, it is expected that Diane Adler should
wish that her own daughter would not have to go through the miserable
childhood she experienced. Thus, it is reasonable why Diane Adler should
leave the child in the custody of her brother rather than her mother, Evelyn
Adler, in order that her daughter might have the chance of a normal
childhood that would promote her holistic environment.

Diane Adler, as a gifted child herself raised by Evelyn Adler, is fairly

aware of what it is like to be under the latter’s custody and supervision. Her

3
express wish made known to respondent, a brother, who is presumed to
understand a direct blood relative, must be given much credence.

Under Article 213 of the Family Code, “No child under seven years
of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise.” This we could likely presume is
also based on how only a mother could know what is best for her child.
Diane did not have the privilege to enjoy a normal life in her younger days
as she too was subjected to face numbers all day being given an explicit
intellectual gift.

The essence of being a child is not being a subject to worries, and

that the latter enjoys a healthy growth emotionally, physically, and
intellectually. Her wish for her daughter to have a normal life is a privilege
she knows is best for her daughter. The child should not be deprived of
such privilege even given an intellectual gift because such does not make
her less of a child.

Learning from what Diane went through and the consequences of

such in the hands of Evelyn Adler, it shows that it would be beneficial for
Mary to stay in the custody of her uncle in order to develop not only her
mental skills but also her overall well-being.

Article 363 of the Civil Code provides that in all questions relating to
the care, custody, education and property of the children, the latter's
welfare is paramount. This means that the best interest of the minor can
override procedural rules. The child's best interest shouldn't just be based
on the material things that she could get from her grandmother but the real
love and care that she gets from her Uncle to live normally. She can enjoy
the grants of a prestigious school by full ride scholarship even without the
help of Evelyn Adler.

The child has grown very attached to

the respondent that a separation
would be detrimental

Ever since the child was six months old, the person who cared for
her and gave her parental love was her uncle, the herein respondent.
Indeed, it is true that in the hierarchy of preference, the grandparent has
more right to care for the child as provided for in Art. 19 of the Child and
Youth Welfare Code:

ARTICLE 19. Absence or Death of Parents. –

Grandparents and in their default, the oldest brother or
sister who is at least eighteen years of age, or the relative
who has actual custody of the child, shall exercise parental
authority in case of absence or death of parents, unless a
guardian has been appointed in accordance with the
succeeding provision.

4
 However, the child, in this case, grew up in the care and love of her
uncle. She has never known her grandmother until lately. It was not as if
the respondent was trying to hide the child from the grandmother, as seen
as how he has let the grandmother introduce herself to the child; there was
simply a lack of effort from the part of the grandmother to reach out to her
granddaughter.

As such, the child grew to know that her only family was her uncle
and has consequently formed a secure and trusting bond with her uncle.
The child has developed close attachment to the respondent and has
regarded him as a second parent.

John Bowlby, a British child psychiatrist, psychoanalyst and

researcher, acknowledged the importance of attachment for a healthy
functioning throughout the life course of a child. 3 The theory in attachment
holds that there is a relationship between mental health and the
relationship to important attachment figures that provide emotional
connection and support.4 Bowlby in explaining the importance of
attachment concluded:

“xxx human beings of all ages are found to be at their

happiest and to be able to deploy their talents to best
advantage when they are confident that, standing behind
them, there xxx trusted persons who will come to their aid
should difficulties arise.”5

It cannot be disputed, that the child has already built a secured

attachment with her uncle, whom she considers to be her parent.
Furthermore, the child knows that she is gifted and even understands that
she is different from others. Most studies related to giftedness have always
found that gifted children have difficulty in adjusting emotionally. They have
difficulty in relating with others because they are different from others. The
brighter the children are, the more they tend to struggle with feelings of
isolation and loneliness6. Thus, stripping the child of the company of the
person whom she has formed attachment with does not help this difficulty.

In this case, the child has shown difficulty in interacting and

socializing with children her age. But with the continued support from her
uncle, the child is starting to make friends with her classmates. As
aforementioned, the child is able to interact and deploy their talents more if
they are confident that the person whom they trust is there to support
them7. The presence of the primary attachment figure allows the child to

3
Fairchild, S.R. Understanding attachment: Reliability and validity of selected attachment
measures for children preschoolers and children. Child and Adolescent Social Work Journal,( Vol. 23, No.
2.2006)
4
Ibid.
5
Id.
6
Moon, S. M., & Hall, A. S. (1998). Family therapy with intellectually and creatively gifted children.
Journal of Marital and Family Therapy, 24(1), 59-80. Retrieved from
https://search.proquest.com/docview/220974177?accountid=50192
7
Fairchild, S.R. (2006). Understanding attachment: Reliability and validity of selected attachment
measures for children preschoolers and children. Child and Adolescent Social Work Journal, Vol. 23, No. 2.

5
explore and interact with her environment without anxiety.8 Suddenly
taking the child out of the care of her uncle will hamper her emotional and
social development.

As such, considering as to whom the custody should be awarded,

one must bear in mind the best interest of the child. Jurisprudence
provides:

“In all actions concerning children, whether undertaken

by public or private social welfare institutions, courts law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary
consideration.”9 (emphasis supplied)

The paramount criterion must always be the child’s interest. As

further embodied by Article 8 of the Child and Youth Welfare Code:

ARTICLE 8. Child's Welfare Paramount. — In all questions

regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration.

Similarly, Article 363 of the Civil Code also provides that in all
questions relating to the care, custody, education and property of the
children, the latter’s welfare is paramount. Likewise, is has been held by
the Supreme Court that “the best interest of the minor can override
procedural rules”.10 In other words, the task of choosing the parent to
whom custody shall be awarded is not a ministerial function to be
determined by a simple determination of the age of a minor child.

It is our contention, that the child be remained in the custody of the

respondent. As separating the child will prove to be detrimental in her
intellectual, emotional, and social development. The court should not
deprive the child “to live in an atmosphere conducive to her physical and
moral, as well as, intellectual development.”11

This is firmly established by the Supreme Court in the case of Tonog

vs. Court of Appeals that:

“The child should not be wrenched from her familiar

surroundings and thrust into a strange environment away
from the people and places to which she had apparently
formed an attachment.

The neglect of the natural father

discredits his affidavit of custody and
affirms the fact that respondent has acted as
the “father” of the child to her best interest

8
Ibid.
9
Perez v. Court of Appeals, G.R. No. 11870, 29 March 1996.
10
Luna v. Intermediate Appellate Court, G.R. No. L-68374, 18 June 1985.
11
Ibid.

6
 It is settled in our law and jurisprudence that parents should exercise
joint parental authority over their children. Article 211 of the Family Code
states that:

“The father and the mother shall jointly exercise parental

authority over the persons of their common children. In
case of disagreement, the father’s decision shall prevail,
unless there is a judicial order to the contrary.”

However, if one of the parents dies, Art. 212 shall apply. The
surviving parent shall exercise parental authority.

“In case of absence or death of either parent, the parent

present shall continue exercising parental authority.
The remarriage of the surviving parent shall not affect the
parental authority over the children, unless the court
appoints another person to be the guardian of the person
or property of the children.” [emphasis supplied]

In this case, Mr. Polland, the biological father of the child, was
absent at the time of Diane Adler’s pregnancy up to the time of the child’s
birth. No communication was established between him and Diane Adler.
Not was it shown that he exerted due diligence and efforts to locate his
daughter.

The neglect shown by the natural father in even locating and

knowing the whereabouts of his daughter discredits the affidavit he made
in favor of the petitioner and affirms the fact that respondent had acted as
the "father" of the child, to her best interest. The affidavit he made in favor
of the petitioner has no bearing since Mr. Polland could not have the right
to delegate the custody of her child when in the first place he doesn’t
exercise it.

As the facts have shown, Mr. Polland had never even seen Mary. He
wasn’t even sure if he was the father of Mary until the DNA test he took.
He did not even try to look for Mary after he knew about Mary’s mother.
Mr. Polland has never been a genuine guardian of a minor. He wasn’t
interested about Mary and the fact of his nomination of Evelyn Adler is
insincere and dishonest. Sombong vs. Court of Appeals held that:

“The court is not bound to deliver a child into the custody of

any claimant or of any person, but should, in the
consideration of the facts leave it in such custody as its
welfare at the time appears to require. In short, the child’s
welfare is the supreme consideration”

II. FRANK ADLER HAS THE FINANCIAL CAPACITY TO PROVIDE

FOR MARY ADLER COUNTER TO COMPLAINANT’S
EXAGGERATED DEPLORABILITY OF RESPONDENT’S LIVING
CONDITIONS.
-------------------------------------------

7
Complainant’s allegations on respondent’s
living conditions are exaggerated and speculative

The petitioner has exaggerated the deplorability of respondent’s

living conditions and that he has no capacity to provide care and support to
the minor child. Moreover, she has created an impression that the dwelling
of the respondent is unwholesome as well as unclean to be considered as
a sustainable dwelling for a child.

The contentions of the petitioner is untenable as the respondent has

provided sufficient support and care for the minor, and even sent her to
school and maintained the child in his dwelling.

In Herbert Cang v. Court of Appeals, and Spouses Clavano, G.R.

No. 105308, 25 September 1998, the Court ruled that aside from the
physical comforts brought about by material things, it is important to take
into consideration the holistic welfare of the child. Although it is against the
spirit of the law to disregard financial capability as the paramount
consideration in deciding on the authority of the children, it should be taken
account that the overall needs of the child should prevail.

With these facts, we arrive to the question of the ultimate criteria of

custody. The paramount criterion in custody disputes is the welfare and
well-being of the child, or the best interest of the child. The respective
resources and social and moral situations of the contending parents should
be considered. Nevertheless, this primordial rule can override the rights of
one or both parents over their children. This means that despite the
comfort that a person can provide to a child, it is very important to take into
account the effect one has to the child.

The contention of the dwelling of the respondent is irrelevant in the

case at hand because the purpose of custody cases is not to provide the
most comfortable or luxurious to a child, rather it is the best interest of the
child that should prevail, which can be attained not just by material luxury.

Lastly, it is important to take into consideration the relationship of

trust with the minor12. Frank undoubtedly has the strongest relationship
with Mary given that the latter specifically said that she doesn’t want Frank
to leave her. If we continually assert the guardianship to Evelyn, it would
lead to the decline on the morale of the child and may incur greater
emotional and psychological damage to the child.

Given the following, Frank’s dwelling is wholesome and it does not

affect his capability as guardian and can validly continue having custody
over his niece.

12
A.M. No. 03-02-05-SC, Section 5(d), 01 May 2003

8
Respondent has financial capacity
to support the child

Petitioners allege that respondent Frank does not have the financial
capacity to support the child, and thus rendering him unqualified to have
custody over the same.

Both (a) the allegation that Frank is without the financial capacity to
support the child; and (b) the petitioner’s contention that financial capacity
is determinant of appropriate custody, are misleading, if not completely
self-serving.

For seven years and since the respondent took actual custody of the
child upon the mother’s death, the respondent was able to provide for the
necessities of the child and was even able to send her to a school of good
repute, in keeping with his means and resources.

The “financial capacity” contemplated by present laws in determining

whether or not a party is capable of supporting a child over whom custody
is claimed pertains to neither material affluence nor luxurious comfort.

In Daisie David v. Court of Appeals, G.R. No. 111180, 16 November

1995, the private respondent, father of the illegitimate child whose custody
was under controversy, claimed himself to be of better custodial rights over
the child than the petitioner-mother since he was a very rich businessman
whereas the petitioner-mother was only a market vendor. However,
notwithstanding the wide financial disparity between the contesting parties,
the Court still awarded the child’s custody to the petitioner-mother. The
Court deliberated that being financially well-of does not per se afford a
party better custodial rights over a child–

“Nor is the fact that private respondent is well-off a

reason for depriving petitioner of the custody of her
children, especially considering that she has been able to
rear and support them on her own since they were born.
xxx
[Petitioner-mother] may not be enjoying a life of
affluence that private respondent promises if the child lives
with him. It is enough, however, that petitioner is
earning a decent living and is able to support her
children according to her means.” (Emphasis supplied)

The abovementioned doctrine is also furthered in Cang v. Court of

Appeals and Sy v. Court of Appeals.

In Cang v. Court of Appeals, where petitioner-father and private

respondent-in-laws took to court the custody of the petitioner-father’s
children, the court held that–

“Indeed, it would be against the spirit of the law if

financial consideration were to be the paramount
consideration in deciding whether to deprive a person

9
 of parental authority over his children. There should be
a holistic approach to the matter, taking into account the
physical, emotional, psychological, mental, social and
spiritual needs of the child. The conclusion of the courts
below that petitioner abandoned his family needs more
evidentiary support other than his inability to provide
them the material comfort that his admittedly affluent
in-laws could provide.” (Emphasis supplied)

More recently in Wilson Sy v. Court of Appeals, G.R. No. 124518,

December 27, 2007, custody was awarded to remain with the respondent
notwithstanding the petitioner being better financially situated than the
former. It was sufficient that the respondent was able to provide for the
basic needs of the child in keeping with the respondent’s means and
resources; as when–

“[…] the appellate court was satisfied with respondent's

proof of her financial ability to provide her children with
the necessities of life. (Emphasis supplied)

Further, in awarding custody to the petitioner in David v. Court of

Appeals, and to the respondent in Sy v. Court of Appeals, the Supreme
Court sustained the lower courts’ order to have the respective oppositions
– who were financially better-off in both David and Sy – give fixed monthly
allowances as support, given that said oppositions have already expressed
their willingness to support the child/children in question.

Pursuant to the doctrine established in both Philippine and foreign

jurisprudence, herein complainant’s allegations are untenable.

There is no proof more obvious as to the sufficiency of the

respondent’s financial capacity to support the child than the very fact that
he has continually done exactly that since day one of his actual custody
and up to this very date.

Moreover, where law and jurisprudence has provided, time and time
again, that the financial capacity to warrant custody need not be
extravagant – as being able to provide for the child’s necessities in
proportion to one’s own means is already sufficient; and that parental
authority cannot be entrusted to a person simply because of financial
considerations, herein petitioner’s contentions cannot hold water.

Corollary also to David and Sy above, should the petitioner indeed

wish to afford the child the comforts she offers – on which she
comparatively grounds her claim as bearing better weight than the
respondent’s – she can very well still provide such without having to
deprive the child her preferred guardian, the respondent.

Accordingly, the respondent can validly continue having custody

over his niece.

10
Jail time not a measure of
moral capability to raise a child

Petitioners allege that respondent does not have the moral capability
to rear Mary Adler because he was incarcerated for one (1) day for
assault, thus illustrating his lack of moral qualification to have custody of
the child.

Petitioners fail to mention the facts that surround the case charged
against respondent Frank. The incident happened when a drunken man
attacked respondent without sufficient provocation on the part of
respondent. The means used by respondent to defend himself from the
unprovoked unlawful aggression of the drunken man are deemed entirely
reasonable.

Self-defense is a justifying circumstance13 that leaves the burden of

proving one’s absence of intent to commit harm in the hands of the person
claiming it. Here, the respondent has sufficiently explained in the
proceedings that intent to attack is non-existent in the offense charged
against him, he had no plans of causing injury upon the drunk man, but
rather his actions were the result of his impulse to preserve himself from
harm.

In the case of United States vs. Agapito Fortin, the Supreme Court
ruled that invoking self-defense in an instance where one throws to the
ground a drunk municipal official who has made an unprovoked attack
upon him is not guilty of the offense of resisting an officer, hence, not
guilty of any offense.

In the case at bar, the man who assaulted the respondent does not
even hold a rank to begin with, hence it can be derived that the assault
committed by the respondent would not even constitute a serious offense
that would be tantamount to concluding that he lacks the moral capability
of raising a child.

It is clear from the laws aforementioned that the offense committed

by respondent does not presume the presence of intent in the commission
of an offense. Absent any presumption from law of such intent, it should be
construed that the act of respondent was made at the spur of the moment
or when the unlawful aggression of the drunken man against respondent
started.

Respondent does not have the intention to inflict bodily harm on the
drunken man and only acted in self-preservation. Absent this intention, it is
flawed for petitioners to cast aspersion on the moral capacity of
respondent.

13
Revised Penal Code, Art. 11 par. 1

11
Respondent is able to fulfill
the duties of a parent

Petitioners allege that respondent is unfit to raise the child on a

number of grounds, each of which has been rebutted, however respondent
has been providing for the child in line with the duties of a parent and
furthermore the child has mutually given back to the respondent the duties
of a child to a parent evidencing the importance of maintaining the parent-
child relationship between the two.

According to the Section 356 of the Family Code, there are four duties a
parent must adhere to:

(a) Provide parental care

(b) Provide at least elementary education
(c) Provide moral and civic training
(d) Provide an atmosphere conducive to the child’s physical, moral and
intellectual development

In the case at bar, the respondent has been providing parental care for
the child for seven years. Respondent has supported the child and
provided love and care towards the child’s needs. Respondent has sent
the child to a school of good repute and has even developed the child
intellectually by home teaching the child at times and providing educational
books. It is worth noting that the respondent was a former professor at the
Boston University. As to moral development the respondent periodically
instructs the child in what is right and wrong and constantly reminds the
child to be compassionate to others. Respondent is firm in his parental
duty of correcting the child when needed. Such moral and civic training has
even lead the child to be confident in protecting her fellow classmates from
harm. And lastly, the respondent sees to the physical development of the
child by even accompanying and encouraging the child to go out of the
house and play.

As to the duties of the child, Section 257 of the Family Code provides
that every child shall:

(a) Obey and honor his parents and guardians

(b) Respect his grandparents, old relatives, and persons holding
substitute parental authority
(c) Exert his utmost for his education and training
(d) Cooperate with the family in all matters that make for the good of the
same

We see these present at the case at bar where Mary would obey the
rules of Frank like She should not use the gadgets given to her by her
grandmother for her betterment because she is still a child, she obeyed
that she would stay with Roberta on the weekends because Franks has
personal matters to attend to on the weekends. The child is respectful to
her elders and even finds it rude to correct older people. She is diligent
and enjoys her studies and even accomplishes her homework every
school night. And lastly, they bond with each other although it is not as

12
expressive, it is, without doubt, that their actions show a close parent and
child relationship.

In conclusion, the child has been raised to be a decent, bright and

healthy human being under the care and supervision of the respondent.
Fulfilment of all these duties both by the respondent and the child is a
testament to the functionality and beneficiality of their relationship and
strongly supports the retention of the respondent’s custody over the child.

III. EVELYN ADLER IS EMOTIONALLY AND PSYCHOLOGICALLY

UNFIT TO EXERCISE CUSTODY OVER MARY ADLER.
-------------------------------------------

There are three principal kinds of obligations of the Family as

envisioned by the 1987 Constitution, the Family Code and special family
laws like adoption laws – Marital (Art. 68), Parental (Art. 220) and Property
(Title VI, Family Code).

While marriage bonds initiates marital obligations14, parental

authority initiates parental obligations15. These obligations can be
expressed by the Family Code.

Essential Parental Obligations in the Family Code are enumerated

as follows:

Art. 209. Pursuant to the natural right and duty of parents

over the person and property of their unemancipated
children, parental authority and responsibility shall include
the caring for and rearing them for civic consciousness and
efficiency and the development of their moral, mental and
physical character and well-being.

xxx

Art. 220. The parents and those exercising parental

authority shall have with the respect to their
unemancipated children or wards the following rights and
duties:

(1) To keep them in their company, to support, educate

and instruct them by right precept and good example, and
to provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity, self-discipline, self-
reliance, industry and thrift, stimulate their interest in civic

14 Family Code, Art 68.
15 Family Code, Art 209 and 220.

13
 affairs, and inspire in them compliance with the duties of
citizenship;
(4) To furnish them with good and wholesome educational
materials, supervise their activities, recreation and
association with sothers, protect them from bad company,
and prevent them from acquiring habits detrimental to their
health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the
circumstances; and
(8) To perform such other duties as are imposed by law upon
parents and guardians.

In the subsequent sections, we argue that Evelyn is psychologically

and emotionally incapable of performing these essential parental
obligations and she has a history of violating these essential parental
obligations resulting in the misery and death of her daughter and that
Evelyn is acting like an outraged consumer and not as a parent.

Violaton 1: Evelyn's unjustly threatening attitude against the person

and friends of her child “Diane”, the mother of Mary Adler leading to
suicide is contrary Art. 220 of the Family Code. This court is bound
by stare decisis to consider “suicide” of a child against Evelyn's
fitness for parental authority.

As revealed in the trial, Evelyn's daughter Diane had a very limited

social life as evidenced by the following facts:

1.) Diane ran away with his boyfriend against the will of her
mother. Upon finding them, Evelyn threatened the boyfriend
that he will be charged with kidnapping unless he and Diane
would no longer communicate. This is a direct violation of Art.
220 (3) of the Family Code particularly on honesty and
integrity since the kidnapping threat was unfounded.
2.) Diane was made to study every waking moment to the dream
of her mother that she will solve a Millenium Prize Problem.
This was undisputed by Evelyn as this is what she believes as
the best interest of Diane. This is a direct violation of Art. 220
(4) of the Family Code particularly on the lack of recreation
and association with other people.
3.) Diane manifestly shared to her mother, brother and friends
that she detested the upbringing of Evelyn to which she
ignored and underestimated. This is contrary to the very
tenets of Art. 213 and Art. 49 of the Family which values a
child's choice.

As a result of the aforementioned acts, the fact that Diane was under
lifelong misery remains undisputed and Evelyn has in multiple occasions
considered such misery as insignificant. On multiple occasions, Evelyn has

14
supplanted the phrase “best interest of the child” as what is normally and
legally understood with her own definition.

According to studies on the causes and symptoms of suicide16,

feeling hopeless, feeling trapped and feeling alone will lead a person to
suicide. The acts of Diane and the admission of Evelyn shows that Diane
was indeed suffering these signs.

In the Philippine Setting, there is approximately 2500 suicide cases

every year17. According to the Philippine Health Statistics18, 87% of those
who survived their suicide attempts point out problems with their spouses,
girlfriends or boyfriends and parents as the cause of their suicide.

What these studies and statistics tell us is that Diane's suicide case
is probably caused by Evelyn's parenting style. That Evelyn feels no
remorse over her parenting style is undisputed. This further reiterates the
reason why Diane wishes that her child be brought up under normal
circumstances, away from the pressures of an environment that demands
perfection from a genius.

The Philippine Supreme Court has always taken suicide seriously

against the person with parental authority19. Under the principle of stare
decisis, the Supreme Court set as precedent the ruling that the acts of
child should be given consideration as against the parents20. The Supreme
Court explained that the ruling is manifest in the verba legis and the ratio
legis of our laws21. So much so that the Supreme Court ruled in a case
that there is no need for direct evidence that they have been negligent in
the upbringing of the child if it is proven that the child has committed a
crime22. In other words, Negligence is presumed against the parent whose
child has committed a crime23.

Furthermore, a judge was administratively held liable for ignoring

“suicide” as a factor in a custody case. The Supreme Court was also
forced to change its supposedly final decision on a case of custody
because a child was threatening to commit suicide24.

The Supreme Court explains in a case that the ratio legis of this
strict precedence is the vicarious responsibility of the person with parental

16 Timothy Khan, Suicide and Suicidal Behavior, available at
<https://www.healthline.com/health/suicide-and-suicidal-behavior#signs-symptoms2> last
visited 11 October 2017
17 Carmela G.. Lapena, Special Report : Suicide on the Pinoy Youth, available at
<http://www.gmanetwork.com/news/lifestyle/healthandwellness/524070/special-report-suicide
-and-the-pinoy-youth/story/> last visited 11 October 2017
18 Maria Theresa Redaniel, Suicide in the Philippines: Time Trend Analysis (1974-2005) and
Literature Review, available at
<https://bmcpublichealth.biomedcentral.com/articles/10.1186/1471-2458-11-536> last visited
11 October 2017
19 Luna v. Intermediate Appellate Court, G.R. No. L-68374, 18 June 1985.
20 Libi vs. Intermediate Appellate Court, G.R. No. 70890, 18 September 1992.
21 Gualberto vs Gualberto, G. R. No. 154994, 28 June 2005.
22 Libi vs. Intermediate Appellate Court, G.R. No. 70890, 18 September 1992.
23 Ibid.
24 Luna v. Intermediate Appellate Court, G.R. No. L-68374, 28 June 1985.

15
authority to comply with the essential parental obligations25. The Supreme
Court even granted a first-instance exception on the retroactivity of
adoption because of this vicarious responsibility26. It would be downright a
corruption of the spirit of our laws not to consider such responsibility
against Evelyn.

Violation 2: Evelyn has abandoned the child for 7 years. It is only

upon knowing that the child was a genius that she suddenly claims to
care for her well-being. She violated Art. 216 of the Family Code
which grants her substitute parental authority upon the death of the
mother through abandonment.

As revealed in the trial, Evelyn has admitted the following facts:

1.) She had ab initio knowledge of Diane's pregnancy, the birth of

Mary and the death of Diane.
2.) She had ab initio knowledge of Frank's de facto custody of Mary
3.) She had ab initio knowledge of where Frank was living.
4.) She had willingly and unjustifiably refused to communicate with
Frank and Mary for seven years after the death of Diane.
5.) She had admitted that she never saw Mary until she learned of
Mary's genius to which she visited to test such genius herself by
showing her university level Math books and seeing of Mary could
comprehend them.

Art. 216 of the Family Code grants substitute parental authority to

the grandparents after the death of their parents. This grant is mandatory
and is conferred by operation of law. The grant of parental authority carries
with it obligations under Art. 220 of the Family Code.

In this case, Evelyn had the responsibility under Art. 216 of the
Family Code to take custody of Mary from the moment of Diane's death
considering that Diane was the only legally known parent (the father has
not recognized the child yet). She had the obligation (among other
obligations) to support, care and nurture Mary under Art. 220 of the Family
Code from the time of Diane's death. She failed to do so by abandoning
Mary to which parental authority is not validly conferred upon Frank,
brother of Diane and son of Evelyn.

The acts of Evelyn enumerated above constitutes abandonment

leading her to lose the right to demand custody of Mary. Under Ar.t 55 of
the Family Code, failure to communicate without just cause for at least one
year is to be presumed as abandonment grave enough to even justify legal
separation. In a case27, the Supreme Court decided that two years non-
appearance with just cause is enough to lose parental authority.

In this case, Evelyn's abandonment is seven years which is more

than three times what the Supreme Court declared as the time range that

25 Gualberto vs Gualberto, G. R. No. 154994, 28 June 2005.
26 Tamargo v. Court of Appeals, G.R. No. 85044, 3 June 1992.
27 Cang v. Court of Appeals, G.R. No.105308, 25 September 1998

16
is considered abandonment28 for the purposes of losing parental authority.
In fact, as admitted in trial, Mary has not even seen Evelyn once since
birth. Hence, this court is duty bound by stare decisis to declare Evelyn's
substitute parental authority as negated by abandonment.
The Supreme Court is very strict regarding the obligation to support
children29. In a case, a father was held criminally liable for failure to
support a child30. In another case, a parent was held liable for attempting
to waive “future support”31.

In this case, Evelyn did not fulfill her obligation to provide the support
for Mary from birth. She only “cared” about Mary when she knew of her
genius. Parental authority must be taken seriously and not just to serve
one's interest.

In one case32, the Supreme Court eloquently commented “You can't

have your cake and eat it too” - you can't invoke a provision of the Family
Code that favors you and hold that its related provisions are inapplicable.”

In this case, Evelyn can't claim that she has the “right” to reclaim
child custody from Frank under Art. 216 of the Family Code when she has
failed her “obligations” under Art. 220 of same Family Code.

Violation 3: Evelyn is psychologically and emotionally uninterested in

fulfilling the essential parental obligations under Art. 220 of the
Family Code. Such lack of interest is inherent, consistent over
decades and appears to be incurable.

Evelyn comitted the following facts:

1.) She raised Diane to solve the Millenium Problems ignoring her
social life and other civic involvement.
2.) She plans to raise Mary in the same manner as she did Diane.
3.) She underestimated Diane's admissions of misery under her
custody.
4.) She plans to ignore Mary's admissions of misery and desire to see
Frank as evidenced by her actually ignoring Mary's concerns
during the trial custody.

Evelyn has really shown, admitted and planned to be uninterested in

fulfilling essential parental obligations under Art. 220 of the Family Code
except when they coincided with her fantasy of solving one of the
Millenium Problems. It is so consistent, so prevalent and so blatant that
she has tagged Mary's best interest to be nothing more than a tool to solve
the Millenium Problems. Of course, she used the term “attaining her full
potential”.

28 Ibid
29 Del Socorro v. Van Wilsem, G.R. No. 193707, 10 December 2014.
30 De Guzman v. Perez, G.R. No 156013, 25 July 2006.
31 Uy v. Jose Chua, G.R. No. 183965, 18 September 2009.
32 Montanez v. Cipriano, G.R. No. 181089, 22 October 2012.

17
 Unfortunately for Evelyn, marriage and family relations are not like
regular contracts; they are governed by laws33 and the government is
always involved to ensure the best interest of the child34. To give any
parent the sole discretion of defining “what is good for the child”
independent of what the law or jurisprudence has no legal basis35.

In this case, Evelyn's lack of interest to fulfill the essential parental

obligations has existed long before Mary was born. As she admitted in the
trial, she treated Diane exactly the same way: one sided, uncaring and
built for the purpose of fulfilling her fantasy.

Evelyn's lack of interest is also of such gravity and consistency that it

has spanned decades. Nowhere in the seven years of her abandonment of
Mary did she feel like a parent to Frank and a grandparent to Mary. She
never visited for the purpose of being a grandparent, of having a heart that
misses and cares for her loved ones. She visited for the purpose of testing
Mary's genius abilities.

The prospect for the cure of her psychological incapacity is also

hampered by the fact that she sees nothing wrong with her36. In multiple
admissions during the trial, she never saw anything wrong with placing
Diane or Mary in a whole day study session day after day without contact
with the outside world. She never saw anything wrong with using Mary as
a mere computer, a tool to be used to fulfil the fantasy of one day having
an Adler solve one of the Millenium Problems. She sees “full potential” as
nothing more than “academic potential”. She sees a human being as
nothing more than tools to what she considers important.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court that after due consideration of this case, judgment on the
custody of Mary Adler be granted to Frank Adler for it is for the best
interest and welfare of the child, in accordance with the law.

FURTHER, Respondent prays before your Honorable Court for such

other equitable judgment favorable to the child under the premises. P. Del
Rosario Downtown Gov. M. Cuenco Ave, Cebu City, 6000 Cebu, 17 October
2017.

33 Family Code, Art.1.
34 Family Code,Art. 222.
35 Silva v. Court of Appeals, G.R. No. 114742, 17 July 1997
36 Kalaw v. Fernandez, G.R. No. 166357, 14 January 2015

18
 EH302 LAW FIRM
Counsel for Respondent

ATTY. DARYL ABOCOT

Roll of Attorneys No. 11111
PTR No. 1111111, 01/01/2017, Cebu City
IBP No. 1111111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. JEAH ALICANTE

Roll of Attorneys No. 12111
PTR No. 1211111, 01/01/2017, Cebu City
IBP No. 1211111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. MICHELLE AMI APARECE

Roll of Attorneys No. 13111
PTR No. 1311111, 01/01/2017, Cebu City
IBP No. 1311111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. RUSELO RIVA ASENTISTA

Roll of Attorneys No. 14111
PTR No. 1411111, 01/01/2017, Cebu City
IBP No. 1411111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. MARIEL ESTHER AVILA

Roll of Attorneys No. 15111
PTR No. 1511111, 01/01/2017, Cebu City
IBP No. 1511111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. EUNICE BALIONG

Roll of Attorneys No. 16111
PTR No. 1611111, 01/01/2017, Cebu City
IBP No. 1611111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. CHRISTINE CABALLERO

Roll of Attorneys No. 17111
PTR No. 1711111, 01/01/2017, Cebu City
IBP No. 1711111, 01/01/2017, Cebu Province
MCLE EXEMPT

19
 ATTY. CHATCH CALDERON
Roll of Attorneys No. 18111
PTR No. 1811111, 01/01/2017, Cebu City
IBP No. 1811111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. FIDEL GABRIELLI CALVO

Roll of Attorneys No. 19111
PTR No. 1911111, 01/01/2017, Cebu City
IBP No. 1911111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. MATTEW GABRIEL CARISMA

Roll of Attorneys No. 10111
PTR No. 101111, 01/01/2017, Cebu City
IBP No. 101111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. KATHRINA MARIZ CASTAÑARES

Roll of Attorneys No. 11211
PTR No. 1121111, 01/01/2017, Cebu City
IBP No. 1121111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. CHRISTIAN LOYD CUEVAS

Roll of Attorneys No. 11311
PTR No. 1131111, 01/01/2017, Cebu City
IBP No. 1131111, 01/01/2017, Cebu Province
MCLE EXEMPT
ATTY. JULIANO LUIS DIMITUI
Roll of Attorneys No. 11411
PTR No. 1141111, 01/01/2017, Cebu City
IBP No. 1141111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. MARIA APRIL GALANIDO

Roll of Attorneys No. 11511
PTR No. 1151111, 01/01/2017, Cebu City
IBP No. 1151111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. ALIKO JASMINE GARGANERA

Roll of Attorneys No. 11611
PTR No. 1161111, 01/01/2017, Cebu City
IBP No. 1161111, 01/01/2017, Cebu Province
MCLE EXEMP

20
 ATTY. ANGELI GUANZON
Roll of Attorneys No. 11711
PTR No. 1171111, 01/01/2017, Cebu City
IBP No. 1171111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. CHRISTIAN JEE LANZADERAS

Roll of Attorneys No. 11811
PTR No. 1181111, 01/01/2017, Cebu City
IBP No. 1181111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. RAINIEL LLAUDERES

Roll of Attorneys No. 11911
PTR No. 1191111, 01/01/2017, Cebu City
IBP No. 1191111, 01/01/2017, Cebu Province
MCLE EXEMPT
ATTY. MIA LU
Roll of Attorneys No. 11011
PTR No. 1101111, 01/01/2017, Cebu City
IBP No. 1101111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. KAYE MANGUILIMOTAN

Roll of Attorneys No. 11121
PTR No. 1112111, 01/01/2017, Cebu City
IBP No. 1112111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. DIESSA MARIE MANTOS

Roll of Attorneys No. 11131
PTR No. 1113111, 01/01/2017, Cebu City
IBP No. 1113111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. LAURENCE OBAOB

Roll of Attorneys No. 11141
PTR No. 1114111, 01/01/2017, Cebu City
IBP No. 1114111, 01/01/2017, Cebu Province
MCLE EXEMPT

21
 ATTY. JANI OMAMALIN
Roll of Attorneys No. 11151
PTR No. 1115111, 01/01/2017, Cebu City
IBP No. 1115111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. KRISJAN MARIE OSABEL

Roll of Attorneys No. 11161
PTR No. 1116111, 01/01/2017, Cebu City
IBP No. 1116111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. RENEE DOMINIQUE RODELAS

Roll of Attorneys No. 11171
PTR No. 1117111, 01/01/2017, Cebu City
IBP No. 1117111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. SITTI EMADIA SAID

Roll of Attorneys No. 11181
PTR No. 1118111, 01/01/2017, Cebu City
IBP No. 1118111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. KATE ALEX SALIBIO

Roll of Attorneys No. 11191
PTR No. 1119111, 01/01/2017, Cebu City
IBP No. 1119111, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. ALBERTO SIMBAJON JR.

Roll of Attorneys No. 11101
PTR No. 1111011, 01/01/2017, Cebu City
IBP No. 1111011, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. ALYSSA CHANTELLE DEB SORIANO

Roll of Attorneys No. 11112
PTR No. 1111211, 01/01/2017, Cebu City
IBP No. 1111211, 01/01/2017, Cebu Province
MCLE EXEMPT

22
 ATTY. ELMAR TAGALOGUIN
Roll of Attorneys No. 11113
PTR No. 1111311, 01/01/2017, Cebu City
IBP No. 1111311, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. KENT UGALDE

Roll of Attorneys No. 11114
PTR No. 1111411, 01/01/2017, Cebu City
IBP No. 1111411, 01/01/2017, Cebu Province
MCLE EXEMPT

ATTY. MIKI YUGI

Roll of Attorneys No. 11115
PTR No. 1111511, 01/01/2017, Cebu City
IBP No. 1111511, 01/01/2017, Cebu Province
MCLE EXEMPT

Copy Furnished:

EH308 LAW FIRM

Counsel for Petitioner
P. Del Rosario Downtown
Gov. M. Cuenco Ave,
Cebu City, 6000 Cebu

23
 VERIFICATION AND CERTIFICATION

I, FRANK ADLER, of legal age, hereby depose and state that:

I am the respondent in the foregoing case; I have caused the

preparation of this document and I hereby state that I have read the
contents of this paper of which are true and correct of my own knowledge
and/or on the basis of authentic documents.

IN WITNESS WHEREOF, I hereunto affix my signature this October

17, 2017.

FRANK ADLER
Affiant

SUBSCRIBED AND SWORN to before me this October 17, 2017;

affiant exhibiting to me his TIN I.D. No. 302-203-302-00.

WITNESS MY HAND AND SEAL this October 17, 2017.

DOC. NO._______
PAGE NO._______ NOTARY PUBLIC
BOOK NO._______
SERIES OF 2015.

24