Tonog vs. Court of Appeals

In a custody dispute involving an illegitimate minor, the welfare and well-being of the child is the paramount criterion; where the child has exceeded seven years of age, the child’s preference must be sought, and temporary custody may remain with the father pending final judgment, without prejudice to the mother’s parental authority under Articles 176 and 213 of the Family Code.

Petitioner Dinah B. Tonog and private respondent Edgar V. Daguimol are the biological parents of Gardin Faith Belarde Tonog, an illegitimate child born on September 23, 1989. At the time of the child’s birth, petitioner was a nursing student and private respondent was a licensed physician; they cohabited for a time and lived with private respondent’s parents and sister in Quezon City. The dispute concerns custody and guardianship of the minor under the Family Code, particularly Articles 176, 213, and 220, which govern parental authority over illegitimate children and custody of children below seven years of age.

On September 23, 1989, petitioner Dinah B. Tonog gave birth to Gardin Faith Belarde Tonog, her illegitimate daughter with private respondent Edgar V. Daguimol. Petitioner was then a nursing student while private respondent was a licensed physician. They cohabited for a time and lived with private respondent’s parents and sister in Quezon City, where the infant Gardin Faith was a welcome addition to the family.

A year after the birth of Gardin Faith, petitioner left for the United States of America and found work as a registered nurse. Gardin Faith was left in the care of her father, private respondent, and her paternal grandparents. On January 10, 1992, private respondent filed a petition for guardianship over Gardin Faith, docketed as Sp. Proc. No. Q-92-11053, in the Regional Trial Court of Quezon City. On March 9, 1992, the trial court rendered judgment appointing private respondent as legal guardian of the minor.

Petitioner learned of the judgment only on April 1, 1992. On May 27, 1992, she filed a petition for relief from judgment. In a resolution dated September 15, 1992, the trial court set aside its original judgment and allowed petitioner to file her opposition to private respondent’s petition. Private respondent filed a motion for reconsideration. On October 4, 1993, petitioner filed a motion to remand custody of Gardin Faith to her. On November 18, 1994, the trial court denied private respondent’s motion for reconsideration and granted petitioner’s motion for custody; petitioner moved for immediate execution.

Private respondent then filed a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 35971. The appellate court initially dismissed the petition on March 21, 1995, but on August 29, 1995, upon private respondent’s motion for reconsideration, it modified its decision and ordered status quo with respect to physical custody, allowing private respondent to retain custody until final judgment. The appellate court denied petitioner’s motion for reconsideration on November 29, 1995. The Court of Appeals found that the child had been living with private respondent and her paternal grandparents since birth and that transferring custody would be painful and psychologically harmful to the child while the guardianship case remained pending. The Supreme Court noted that Gardin Faith was now twelve years old and that the proceedings for guardianship before the trial court had not been terminated.

• Maternal Authority: Petitioner contended that, as the mother of Gardin Faith, the law confers parental authority upon her as the mother of the illegitimate minor.
• Statutory Bar of Seven Years: Petitioner contended that Gardin Faith cannot be separated from her since she had not, as of then, attained the age of seven.

• Temporary Custody: Whether the Court of Appeals erred in allowing private respondent to retain temporary physical custody of the minor pending final judgment in the guardianship proceedings.
• Maternal Authority: Whether petitioner, as the mother of an illegitimate minor, is entitled to custody as a matter of law under Articles 176 and 213 of the Family Code.
• Best Interests and Child’s Preference: Whether the minor’s welfare and, she having exceeded seven years, her preference must be considered in determining custody.
• Fitness as Question of Fact: Whether petitioner’s fitness to have custody may be resolved by the Supreme Court in a petition for review on certiorari.

• Temporary Custody: No. The Court of Appeals did not err; the welfare of the child is controlling, and temporary custody should remain with private respondent pending final judgment in Sp. Proc. No. Q-92-11053.
• Maternal Authority: No, not as a matter of law in this petition. Although Article 176 gives parental authority to the mother and Article 213 creates a strong bias for the mother, these provisions do not automatically entitle petitioner to custody where the child is over seven and only temporary custody is at issue.
• Best Interests and Child’s Preference: Yes. The child’s welfare is the paramount criterion, and because she exceeded seven, her preference and opinion must first be sought.
• Fitness as Question of Fact: Yes. Whether a mother is a fit parent is a question of fact for the trial court in the special proceedings; a petition for review on certiorari raises only questions of law.

• Temporary Custody: The question was framed as one of temporary custody because the guardianship proceedings in Sp. Proc. No. Q-92-11053 had not been terminated and no final custody determination had been made. In custody disputes, the paramount criterion is the welfare and well-being of the child. The appellate court did not err in allowing the father to retain parental custody in the meantime. The child should not be wrenched from familiar surroundings and thrust into a strange environment away from people and places to which she had formed an attachment. The child’s age had exceeded the statutory bar of seven years, so her preference and opinion must first be sought in the choice of which parent should have custody. It was cautioned that this did not imply a preference for the father or a statement against petitioner’s fitness for final custody; temporary custody was to remain with the father pending final judgment.
• Maternal Authority: Parents and individuals exercising parental authority over unemancipated children are entitled to keep them in their company under Article 220 of the Family Code. The right of custody springs from parental authority, which is inalienable and may not be transferred or renounced except in cases authorized by law; entrustment of custody to another is merely temporary and does not constitute renunciation. For illegitimate children, Article 176 of the Family Code provides that they are under the parental authority of their mother. Article 213 provides that no child under seven shall be separated from the mother unless the court finds compelling reasons. Both provisions create a strong bias in favor of the mother, and the law presumes the mother is the best custodian. This preference is not absolute, however. Even a mother may be deprived of custody of a child below seven for compelling reasons, such as neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. In this case, the child had already exceeded seven years of age, and only temporary custody was at issue, so petitioner was not entitled to custody as a matter of law in this petition.
• Best Interests and Child’s Preference: The welfare of the child is the controlling factor. While both parents may suffer when separated from the child, the welfare of the child is paramount. If the child is older than seven, the child is allowed to state a preference, but the court is not bound by that choice; the court may disregard the preference if the chosen parent is unfit, in which case custody may be given to the other parent or even a third person. Because Gardin Faith had exceeded seven years, her preference and opinion must first be sought in determining custody.
• Fitness as Question of Fact: Whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special proceedings before the trial court. In a petition for review on certiorari, only questions of law are ruled upon. The Court was not in the best position to assess the parties’ respective merits vis-à-vis their opposing claims for custody. Thus, the final determination of fitness and custody was left to the trial court.

• Best Interests of the Child — In custody disputes, the paramount criterion is the welfare and well-being of the child. The court must consider the respective resources and social and moral situations of the contending parents. Applied: the Court upheld temporary custody with the father to avoid wrenching the child from familiar surroundings pending final judgment.
• Parental Authority and Custody — The right of custody accorded to parents springs from parental authority or patria potestas, a mass of rights and obligations granted for the child’s physical preservation, development, intellect, and education. Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law, such as adoption, guardianship, and surrender to a children’s home or orphan institution. Entrusting custody to another, even by document, gives only temporary custody and does not renounce parental authority. Applied: the mother’s parental authority was recognized, but it did not automatically entitle her to temporary custody in this case.
• Maternal Preference for Illegitimate Children and Children Under Seven — Article 176 of the Family Code places illegitimate children under the mother’s parental authority. Article 213 provides that no child under seven shall be separated from the mother unless the court finds compelling reasons. These provisions create a strong bias in favor of the mother, and the law presumes the mother is the best custodian. However, the preference is not absolute; a mother may be deprived of custody for compelling reasons, including neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. Applied: because the child had exceeded seven and only temporary custody was at issue, the statutory preference did not compel immediate transfer to the mother.
• Child’s Preference Over Seven — A child older than seven is allowed to state a preference in custody, but the court is not bound by that choice. The court may disregard the preference if the chosen parent is unfit, in which case custody may be given to the other parent or even a third person. Applied: since Gardin Faith had exceeded seven, her preference and opinion must first be sought.
• Fitness of Parent as Question of Fact; Scope of Petition for Review — Whether a mother is a fit parent is a question of fact to be resolved in the special proceedings before the trial court. A petition for review on certiorari raises only questions of law. Applied: the Supreme Court declined to assess the parties’ merits and left final custody to the trial court.

• "In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the child." — States the controlling standard in custody disputes and the ratio for upholding temporary custody with the father pending final judgment.
• "[n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise." — Quotes Article 213 of the Family Code, the statutory maternal preference that the Court recognized but found not controlling because the child had exceeded seven and only temporary custody was at issue.
• "If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice." — States the rule on the child’s preference and explains why the minor’s preference must first be sought in the trial court.
• "A word of caution: our pronouncement here should not be interpreted to imply a preference toward the father (herein private respondent) relative to the final custody of the minor, Gardin Faith. Nor should it be taken to mean as a statement against petitioner’s fitness to have final custody of her said minor daughter." — Clarifies that the ruling concerns only temporary custody and does not prejudge final custody or the mother’s fitness.

• Santos, Sr. vs. Court of Appeals, 242 SCRA 407, 411 (1995) — Cited for the nature of parental authority or patria potestas and the rule that parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law.
• Silva vs. Court of Appeals, 275 SCRA 604, 609 (1997) — Cited for the paramount criterion in custody disputes: the welfare and well-being of the child.
• Cervantes vs. Fajardo, 169 SCRA 575, 578 (1989) — Cited together with Silva for the welfare and well-being of the child as the controlling consideration.
• Unson III vs. Navarro, 101 SCRA 183, 189 (1980) — Cited for the rule that the court must take into account the respective resources and social and moral situations of the contending parents.
• Perez vs. Court of Appeals, 255 SCRA 661, 665, 668 (1996) — Cited for the recognition that both parents complement each other in providing holistic care to the child, and for instances of unsuitability that may justify depriving a mother of custody.
• Espiritu vs. Court of Appeals, 242 SCRA 362, 368 (1995) — Cited for the rule that either parent may suffer when deprived of custody, but the welfare of the child is paramount, and for the child’s preference when older than seven.
• Hontiveros, Jr. vs. Intermediate Appellate Court, 132 SCRA 745, 754 (1984) — Cited for the rule that whether a mother is a fit parent is a question of fact to be entertained in the special proceedings before the trial court.

• Article 220, Family Code — Provides that parents and individuals exercising parental authority over their unemancipated children are entitled, among other rights, to keep them in their company. Applied as the statutory basis for the parents’ right to custody.
• Article 176, Family Code — Provides that illegitimate children shall be under the parental authority of their mother. Applied to recognize petitioner’s parental authority over Gardin Faith, but not as an absolute entitlement to temporary custody in this case.
• Article 213, Family Code — Provides that no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. Applied as creating a strong bias in favor of the mother; because Gardin Faith had exceeded seven and only temporary custody was at issue, the provision did not require immediate transfer of custody to petitioner.

Bellosillo (Chairman), Mendoza, and Buena, JJ., concur. Quisumbing, J., was abroad, on official leave.