"x x x.
The Supreme Court:
“The Court cannot go along with complainant’s above posture. Respondent judge, in granting provisional custody over Geoffrey, Jr. in favor of his mother, Eltesa, did not disregard the res judicata rule. The more appropriate description of the legal situation engendered by the March 15, 2011 Order issued amidst the persistent plea of the child not to be returned to his father, is that respondent judge exhibited fidelity to jurisprudential command to accord primacy to the welfare and interest of a minor child. As it were, the matter of custody, to borrow from Espiritu v. Court of Appeals, “is not permanent and unalterable [and] can always be re-examined and adjusted.”1 And as aptly observed in a separate opinion in Dacasin v. Dacasin, a custody agreement can never be regarded as “permanent and unbending,” the simple reason being that the situation of the parents and even of the child can change, such that sticking to the agreed arrangement would no longer be to the latter’s best interest. In a very real sense, then, a judgment involving the custody of a minor child cannot be accorded the force and effect of res judicata.
Now to another point. In disputes concerning post-separation custody over a minor, the well-settled rule is that no child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. And if already over 7 years of age, the child’s choice as to which of his parents he prefers to be under custody shall be respected, unless the parent chosen proves to be unfit. Finally, in Perez v. Court of Appeals, We held that in custody cases, the foremost consideration is always the welfare and best interest of the child, as reflected in no less than the U.N. Convention on the Rights of the Child which provides that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
In the light of the foregoing, respondent judge cannot be held guilty of the charges hurled by the complainant against him for the reason that absent a finding of strong reasons to rule otherwise, the preference of a child over 7 years of age as to whom he desired to live with shall be respected. Moreover, custody, even if previously granted by a competent court in favor of a parent, is not, to reiterate, permanent. In Espiritu, We ruled that:
x x x [T]he matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted x x x. To be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the custodian. x x x”
A.M. No. RTJ-12-2326 (Formerly A.M. OCA I.P.I. No.11-3692-RTJ), January 30, 2013 , GEOFFREY BECKETT, COMPLAINANT, VS. JUDGE OLEGARIO R. SARMIENTO, JR., REGIONAL TRIAL COURT, BRANCH 24, CEBU CITY, RESPONDENT.
x x x."
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