EDUARDO S. FLORES, PETITIONER, VS. MARIA DE LEON VDA. DE ESTEBAN, RESPONDENT.

Eduardo S. Flores in his petition filed with this Court, alleged in substance
that he was married to Adoracion Esteban who died on foecember 27, 1953; that he
had a son with her named Reynaldo Cenon E. Flores born on December 22, 1946;
that until her death she and her son Cenon lived with her mother Maria de Leon
Vda. de Esteban, the respondent herein; and that said respondent restrains the
liberty of said minor and refuses to surrender him to the custody of the
petitioner.

This Court ordered the respondent to file her answer with the Court of First
Instance of Bulacan to which this case was referred. Said court forwarded here
the answer of the respondent in which she alleged in substance that she has had
the custody of the child since he was twenty days old until now that the child
is eight years old, supporting him and sending him to the primary school in
Norzagaray, Bulacan, paying for all school expenses; that she is not restraining
the liberty of said minor but that the latter refuses to go with his father whom
he hardly knows.

In view of the allegations of the parties, the Clerk of this Court was
ordered to receive their evidence, whjch has been taken down by a stenographer
and transcribed, the transcription being attached to the record.

It appears from the evidence that the petitioner has been away from this
country since the respondent took care of and supported the child who was then
only twenty days old; that she also has been supporting him until now when he is
already eight years old, and is sending him to the primary school of Norzagaray,
Bulacan, paying all school expenses. When the herein petitioner once went to
Norzagaray to visit the child and take him away the child refused to go with
him, whom he hardly recognized.

It is not the petitioner who, in fact, claims custody of the child but the
paternal grandfather, Macario Flores (father of the petitioner), who resides in
Pateros, Rizal Macario Flores testified that now and then he received checks
from his son in Okinawa, Japan, and gave money to the deceased wife, mother of
the child. He also gave the deceased sometimes small sums of money out of his
own pocket. The evidence appears to Sustain the allegations of both parties. The
parties agreed that both of them are capable of supporting the child.

It is clear that the petitioner cannot take care of the child because he is
now working and living in Okinawa. The question is whether the child should be
taken care of by the paternal grandfather or the maternal grandmother as a
substitute guardian. The petitioner cites Articles 349 and 355 of the new Civil
Code which read as follows:

“Art. 349. The following persons shall exercise substitute parental
authority:

(1) Guardians;
(2) Teachers and professors;
(3) Heads of children’s
homes, orphanages, and similar institutions;
(4) Directors of trade
establishments, with regards to apprentices;
(5) Grandparents;
(6) The
oldest brother or sister.”

“Art. 355. Substitute parental authority shall be exercised the grandparents
in the following order:
(1) Parental grandparents;
(2) Maternal
grandparents.”

However, we should not lose sight of Article 363 of the same Code which
says:

“In all questions on the care, custody, education and property of children,
the latter’s welfare shall be paramount. No mother shall be separated from her
child under seven years of age, unless the court finds compelling reason for
such measure.”

In the present case what will be for the best’interest and welfare of the
child? It should be considered that the maternal grandmother is almost a mother
to the child having taken care of him since he was twenty days old up to now,
and feels the love of a mother for him. Since the death of the mother Adoracion
the respondent has acted as the mother of the child. There exist mutual love
between the grandmother and the child; her affection is as great or even greater
than that of the mother herself. This is in accordance with human nature.

For the sake of the welfare of the child, we are of the opinion that the
respondent grandmother should have the legal custody over him, without prejudice
to the obligation of the father to contribute to his. maintenance.

In view of the foregoing, it is decreed that the respondent Maria de Leon
Vda. de Esteban have custody of the child. The petition is dismissed.

It is so ordered without pronouncement as to costs.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo,
Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.

Petition dismissed.