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Dilemma 2 & 3:

Contract for Support and Custody, and Simulated Birth Certificate

I. The Impropriety of the Support and Custody Contract

The support and custody contract executed between Cora and Manuel is one which is tainted with legal infirmities. While it is true that the

freedom to contract is protected by the Constitution itself, nevertheless, such freedom is not absolute. It must yield to morals, good customs,

public policy or order and above all, it must not be contrary to any existing laws1.

The Nuances of Support and Custody of an Illegitimate Child

In the questioned contract, it must be noted that the same contained the following provisos: first, that Cora was to drop all claims

against Manuel under the condition that he would take full financial responsibility over her financial needs for a year, as well as the childs

until he or she finishes College; and second, should Manuel exercise the option of supporting the child in his home, she will cede all her

parental rights over the said child. Verily, it can be gleamed that the two provisos go against the time-honored rule that parental authority

and, necessarily, custody of an illegitimate child belongs to the mother

2

. In fact, it has been held that xxx no child under seven years of ageshall be separated from the mother x x x This statutory awarding of sole parental custody to the mother is mandatory, grounded on sound

policy consideration, subject only to a narrow exception.3

More importantly, such right may not be renounced or transferred except in the

cases authorized by law4. In David v. Court of Appeals (250 SCRA 82, 86, November 16, 199), the Supreme Court held that the recognition of

an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child:

The law explicitly confers to the mother sole parental authority over an illegitimate child; it

follows that only if she defaults can the father assume custody and authority over the minor. Of

course, the putative father may adopt his own illegitimate child; in such a case, the child shall be

considered a legitimate child of the adoptive parent.

In the past, the following grounds have been considered as ample justifications to deprive the mother of custody and parental

authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of child, insanity, and

affliction with a communicable disease,5 but never without judicial authority. In the absence thereof, the mothers right of par ental

authority, and consequently, custody over her illegitimate child, immutably remains.

Non-compliance with the Requisites for a Valid Waiver over the Right of Custody and to Demand Support

The case of MoreMaritime Agencies, Inc., et al. v. National Labor Relations Commission, et al. ,6

is instructive in the matter of a

waivers validity:

Aside from the basic requirement of voluntariness in its execution, the quitclaim must

comply with these requisites: (a) that there was no fraud or deceit on the part of any of the parties;

(b) that the consideration of the quitclaim is credible and reasonable; (c) that the agreement is not

contrary to law, public order, public policy, morality or good customs or prejudicial to third persons

with a legal right.

Moreover, it is also imperative that at the time of the making of such waiver, the same should be exercised by a duly capacitated

person actually possessing the right waived.7

As of the constitution of the contract, the child over whom the Right of Custody is exercised

and whose Right of Support is sanctioned, has not yet even born and is, as a consequence, withoutjuridical capacity8. The New Civil Code

provides, in fact, that the conceived child shall be considered born for all purposes that are favorable to it, provided that the fetus is alive at

the time it is completely delivered from the mother's womb, and if it only had an intra-uterine life of less than seven months, it is not

deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.9

1Article 1306, New civil Code

2Article 176, Family Code.

3Dacasin vs. Dacasin, G.R. No. 168785, February 5, 2010.

4Article 210, Family Code.

5Joey Briones v.Maricel Miguel, et.al., G.R. No. 156343, 18 October 2004.

6G.R. No. 124927, May 18, 1999.

7Herrera vs. Borromeo, G.R. No. L-41171, July 23, 1987

8Article 37, New Civil Code.

9Articles 40 and 41, New Civil Code.

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Stated otherwise, the Support and Custody Contract is not valid because Cora cannot waive any claim forfuture support and custody for her

unborn child or any rights accruing therewith10

, over and above the fact that such contract is abhorred not just by sound public policy but also by

law. As such, Atty. Paulina Paz should have declined to draft the said contract for Manuel. While a lawyer owes fidelity to his clients causes, he

must, first and foremost, *u+phold the constitution, obey the laws of the land and promote respect for law of and legal processes11

and as an

incident thereto, he must xxx *n+ot counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system12

. At the

very least, Atty. Paulina Paz should have only advised Manuel to exercise his visitorial rights over the child in view of the constitutionally protected

inherent and natural right of parents to their children.13

II. Simulation of Birth and Usurpation of Civil Status: The Legal Detriments

The simulation of births, as well as the usurpation of civil status, are proscribed by the Revised Penal Code and constitute a crime against

the civil status of persons. Essentially, Wendy and Manuels simulation of Coras childs birth would be punishable under Art icle 347 of the said law

which provides for a penalty of prision mayor and a fine not exceeding one thousand pesos. Cora, on the other hand, will be penalized under the

immediately following article thereof, if she would enter the hospital under Wendys name, as such act constitutes a usurpati on of civil status. The

penalty for usurpation of civil status is prision correccional in its medium and maximum periods.

Furthermore, under Section 21 (b) of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, hereinafter R.A.

8552, *a+ny person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological

parent(s) shall be guilty of simulation of birth, and shall be punished by prision mayor in its medium period and a fine not exceeding Fifty thousand

pesos (P50,000.00). It is worth noting that notwithstanding the aforementioned, Section 22 of the same law provides for a saving clause, by way of

recognition general prohibition against the retroactivity of laws:

Sec. 22. Rectification of Simulated Births. A person who has, prior to the effectivity of this Act,

simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth

was made for the best interest of the child and that he/she has been consistently considered and

treated by that person as his/her own son/daughter: Provided, further, That the application for

correction of the birth registration and petition for adoption shall be filed within five (5) years from

the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with

the procedure as specified in Article IV of this Act and other requirements as determined by the

Department.

In light of these precedents, Manuel and Wendys plan is not to be commended. It is a legal obliquity and not well-worth the expense of

ones liberty especially that it is not the only option. Manuel and Wendy can adopt Coras child by filing a Petition for Ado ption in accordance withR.A. 8552. Forwith, when a decree of adoption has been granted, the couple can then move for the childs Certificate of Live Birth to be amended.

More specifically, Manuel and Wendy should take the following steps:

For the registration of adoption:

The following documents shall be submitted to the local civil registrar for entry in the Register of Court Decrees:

(1) Four (4) copies of judicial decree of adoption to be distributed as follows: first copy to the registrant, second copy for the local

civil registrar making the entry, third copy to the local civil registrar of the place where the birth of the child was originally

registered and the fourth copy to the Office of the Civil Registrar-General.

(2) Four (4) copies of the birth certificate of the adopted to be distributed in accordance with the immediately preceding

paragraph. (OCRG Circular No. 90-2 dated March 28 1990

For the preparation and issuance of the Amended Certificate of Live Birth of the adopted child:

(1) Certification of registration of the adoption decree to be issued by the civil registrar of the city or municipality where the

adoption decree was recorded;

(2) Authenticated copy of the adoption decree bearing registry number and date of registration;

(3) Copy of the registered Certificate of Live Birth of the adopted child. If the birth of the adopted child was not previously

registered in the civil registrar with the child's natural parents, then the birth should be filed under the rules governing

delayed registration of birth;

(4) The amended Certificate of Live Birth shall be attached to the original Certificate of Live Birth of the child which is filed at the

Office of the Civil Registrar; and

10Articles 301 and 2035, New Civil Code.

11Canon 1, Code of Professional Responsibility.

12Rule 1.02, Code of Professional Responsibility.

13Article II, Section 12, 1987 Constitution.

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(5) When the interested party requests a copy of the amended Certificate of Live Birth, the copy to be issued shall not bear the

annotation or any remark that will disclose the facts of the adoption. (Rule 55 A. O. No. 1, S. 1993)

III. Salient Features of a Lawyer-Client Relationship

The Consequences of Imparting Legal Opinion

In a long line of cases, the Supreme Court has consistently held that the constitution of an attorney-client relationship devolves upon the

employment of an attorney either to xxx give advice upon a legal point, to prosecute or defend an action in a cour t of justice, or to prepare and

draft, in legal form, such papers as deeds, bills, contracts and the like.14

Formality is not an essential element of the employment of an attorney.

As such, it is sufficient that the advice and assistance of the attorney is sought and received, in matters pertinent to the profession.15

To constitute professional employment it is not essential that the client should have employed the

attorney professionally on any previous occasion xxx. It is not necessary that any retainer should have been

paid, promised or changed for; neither is it material that the attorney consulted did not afterward undertake

the case about which the consultation was had. (5 Jones Commentaries on Evidence, pp. 4118-4119)

Thus far, xxx *i+f a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity

with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then theprofessional employment must be regarded as established xxx.

16The absence of a written contract does not preclude a finding that there was a

professional relationship which merits attorneys fees for professional services rendered. A written contract is not an essential element in the

employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an

attorney is sought and received in any matter pertinent to his profession.17

It is of little or no momentary value at all, how such request for legal

opinion and the response thereto was made or whether or not the legal services were done as purely gratuitous, or on the lawyers own and by his

own or that it was simply an act for a friend by a friend18

.

Between therefore, the couple and Louis and, Manuel and Louis, there exists no lawyer-client relationship until the latter tenders his legal

opinion on the matter being consulted upon. If, however, Louis decides to give his legal advice whether in person or though the internet he

must proceed with vigilance and only to the extent deemed suitable to safeguard the couples rights, without necessarily acce pting their case.19

Moreover, Rule 19.02 of the Code of Professional Responsibility provides: A lawyer who has received information that his client has, in the course

of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he

shall terminate the relationship with such client in accordance with the Rules of Court.

The Lawyers Duty of Confidentiality

The very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the

Philippine legal process are based, is the sanctity of fiduciary duty in the client-lawyer relationship it is what makes the law profession a unique

position of trust and confidence, which distinguishes it from any other calling.20

Canon 21 and Rule 21.01 of the Code of Professional Responsibility

merely recognizes this truth, and in part provides that as a consequence of a lawyer being duty-bound by the rule on privilege communication21

, he

must preserve the confidence and secrets of his client even after the attorney-client relationship is terminated and shall not, forwith, reveal the

same except for cases specifically allowed by law. To wit: (a) when authorized by the client after acquainting him of the consequences of the

disclosure; (b) when required by law or; (c) when necessary to collect his fees or to defend himself, his employees or associates or by judicial

action. Clearly, what can be culled from such precedents is that in all communications between a lawyer and his client regardless of the venue

the rules of confidentiality remain the same. It is not made to depend on whether the occasion of such communication is secure or not, or whether

it transpired during a personal conference, or over the telephone, or as the increasing trend is, over correspondence via electronic mail. Otherwise,

the rule on privilege communication would be reduced to a mere mockery if not rendered futile.

Such duty, in fact, is so well protected that violation thereof constitutes not just an administrative defiance, but a criminal act. Article

209 of the Revised Penal Code imposes a penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both

for the betrayal of trust by an attorney. The maintenance therefore of the confidence reposed in a lawyer comes at his every peril, and so must act

not only to preserve the secrets of his client22

but also xxx *t+o keep above reproach the honor and integrity of the courts and of the bar23

.

14Hilado vs. David, 84 Phil. 569.

157 C.J.S., 848-849; see Hirach Bros. & Co. vs. R.E. Kennington Co., 99 A.L.R., 1.

16Junio vs. Grupo, A.C. No. 5020, December 18, 2001.

17Dee v. Court of Appeals, 176 SCRA 651 (1989).

18Supra note 14.


20Regala vs. Sandiganbayan, G.R. Nos. 105938 and 108113, September 20, 1996.


22Section 19(e), Rule 127, Revised Rules of Court.

23Supra note 14.

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