gamboa v. ca

AGNES GAMBOA-HIRSCH Petitioner,

vs. HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH, Respondents.

This is a petition for certiorari under Rule 65 which seeks to set aside the decision of the CA which granted private respondent Franklin joint custod with petitioner Agnes of their !inor daughter "i!one. "pouses Franklin and Agnes started to have !arital pro#le!s as Agnes wanted to sta in $akati Cit, while while Franklin insisted that the sta in %oraca &sland. 'hen Agnes ca!e to their conjugal ho!e in %oraca, and asked for !one and for Franklin(s per!ission for her to #ring their daughter to $akati Cit for a #rief vacation she has an intention not to co!e #ack to %oraca. Franklin then filed a petition for ha#eas corpus #efore the CA for Agnes to produce "i!one in court, CA issued a Resolution which ordered that a writ of h a#eas corpus #e issued ordering that "i!one #e #rought #efore said court. CA granted Franklin joint custod with Agnes of their !inor child.  Agnes filed a $otion for Reconsideration Reconsideration which was denied. )ence, this petition. &ssue* '+ the CA acted with grave a#use of discretion when it granted joint custod in utter disregard of the provisions of the Fa!il Code, as to !inors seven -/ ears of age and #elow. )eld* The court held that the CA co!!itted grave a#use of discretion when it granted joint custod of the !inor child to #oth parents. The so0called 1tender0age presu!ption1 under Article 234 of the Fa!il Code !a  #e overco!e onl # co!pelling evidence of the !other( s unfitness. The !other is declared unsuita#le to have custod of her children in one or !ore of the following instances* neglect, a#andon!ent, une!plo!ent, i!!oralit, ha#itual ha#itual drunkenness, drug addiction, !altreat!ent of the child, insanit, or affliction with a co!!unica#le disease. disease. )ere, the !other was not shown to #e unsuita#le or grossl i ncapa#le of caring for her !inor child. All told, no co!pelling reason has #een adduced to wrench the child fro! the !other(s custod. 1avvphi1

"ole custod over "i!one oelle )irsch is here#  AWARDED to the !other, petitioner Agnes Agnes a!#oa0)irsch.