G.R. No. L-10544. August 30, 1956

This is a petition for a writ of habeas corpus filed in this Court to secure the  rightful custody of two  minor children allegedly withheld by the respondent. The writ was made returnable  to  the  Court of First  Instance of the province of Rizal where the respondent resides.

The petitioners aver that they  are the paternal grandparents of  the minors  Robert  Murdock and Elizabeth Constance Murdock, 4 and 2  years old, respectively, who are the legitimate children of the spouses Neil S. Murdock, Jr., a native born citizen of the United States, and Belen Chuidian, a citizen of the Philippines, who died on 26 November, 1955 on the occasion of a fire which took place and burned their house on that date; that  after the death of their parents  the respondent, a  maternal grandfather, brought them to his house; that pursuant to  articles 349 and 355 of the new Civil Code they are  entitled to exercise substitute parental authority over the minors, their grand-children,  in preference to their  maternal  grandfather; that counsel for the petitioners requested the respondent to yield the custody of the minors but the latter has refused  the former’s request; that  the deceased spouses left some properties to the minors among them some insurance policies, and for the administration thereof the respondent commenced guardianship proceedings and prayed therein that he be appointed guardian of the minors’ estate (Sp. Proc. No.  2340, Court  of First Instance of Rizal); that in the guardianship proceedings they will object to the appointments of the respondents as guardian of the persons bf the minors but cannot pray that they be appointed as such  because  they are  not residents of the Philippines; that  being citizens of the  United States the minors should be in the custody and care of and brought up by the paternal  grandparents in  preference  to  their  maternal grandfather; and that it is for the best interest and welfare of said minors that they be brought up and taken care of by the  paternal  grandparents. Upon  the foregoing allegations they pray that the respondent, or whoever acts in his place and stead, be directed  to  appear and produce in Court the bodies of  Robert Murdock and Elizabeth Constance Murdock and  to state  why the minors’ custody, care and upbringing should not be entrusted to them.

The return in the form of an answer of the respondent alleges in substance that although  article 355 of the new Civil Code provides  for the order of preference by which parental authority shall  be exercised by the grandparents in default of the parents,.yet  the said article applies only where there are no circumstances showing that the welfare of the minors will be best subserved by entrusting the custody, care and  upbringing of the  said minors to grand-parents not in the order  of preference established in said article.

By agreement of the parties the financial ability of both the petitioners  and the respondent to support the minors is admitted.

At the hearing the respondent  testified that immediately after the death  of the parents of the minors on  the occasion of the fire that burned  their  house, he brought the minor children  to  his house and has  taken  care of them ever since; that the petitioners are  residents  of the United States and  have never been to the Philippines;  and that the transfer or sending of the  minors to the United States, as petitioners pray, would  work hardship on them.

After hearing, the Court dismissed the petition upon the ground  that the  welfare of the minor children will be best subserved by allowing the respondent, their maternal grandfather, to continue taking care of them and exercising the substitute parental  authority.  The  petitioners have appealed.

We fail  to find any reason why this conclusion arrived at by the  trial court should be disturbed.  The order of preference provided for in article 355 of the  new  Civil Code is mandatory, when there is  no  special circumstance that would require the exercise  of substitute parental authority different  from  that provided for in said article.   In other words, everything being equal the order provided for in said article must be followed.  But if it appears that the welfare of the minor children would be best subserved by having their custody left in the hands of the maternal grandfather, the  substitute  parental authority by the  latter  should prevail  over that by  the paternal grandparents.  The paramount aim is the welfare of the minor children.^[1]

The decree dismissing the petition for a writ of habeas corpus is affirmed, without costs.

Paras, C. J., Bengzon, Montemayor,  Reyes, A., Bautista Angela, Labrador, Coneepcion, Reyes,  J. B, L.,  Endencia, and Felix, JJ., concur.

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^[1] Article 363, New Civil Code.