Facts:
In
1989, Dinah B. Tonog gave birth to Gardin Faith Belarde Tonog, her illegitimate
daughter with Edgar V. Daguimol. A year after the birth of Gardin, Dinah left
for the USA where she found a work as a registered nurse. Gardin was left in
the care of her father and paternal grandparents.
Edgar
filed a petition for guardianship over Gardin in the RTC of Quezon City. In
March 1992, the court granted the petition and appointed Edgar as legal
guardian of Gardin.
In May
1992, Dinah filed a petition for relief from judgment. She averred that she
learned of the judgment only on April 1, 1992. The trial court set aside its
original judgment and allowed Dinah to file her opposition to Edgar's petition.
Edgar, in turn, filed a motion for reconsideration.
In 1993,
Dinah filed a motion to remand custody of Gardin to her.
In
1994, the trial court issued a resolution denying Edgar's motion for
reconsideration and granting Dinah's motion for custody of Gardin. Dinah moved
for the immediate execution of the resolution.
Edgar,
thus, filed a petition for certiorari before the Court of Appeals. The CA
dismissed the petition for lack of merit. Upon motion for reconsideration, CA
modified its decision and let Gardin remain in the custody of Edgar until
otherwise adjudged.
Dinah
appealed to the Supreme Court, contending that she is entitled to the
custody of the minor, Gardin, as a matter of law. First, as the
mother of Gardin Faith, the law confers parental authority upon her as the
mother of the illegitimate minor. Second, Gardin cannot be separated
from her since she had not, as of then, attained the age of
seven. Employing simple arithmetic however, it appears that Gardin
Faith is now twelve years old.
Issue:
Who is
entitled to the temporary custody of the child pending the guardianship
proceeding?
Held:
In
custody disputes, it is axiomatic that the paramount criterion is the welfare
and well-being of the child.
Statute
sets certain rules to assist the court in making an informed
decision. Insofar as illegitimate children are concerned, Article
176 of the Family Code provides that illegitimate children shall be under the
parental authority of their mother. Likewise, Article 213 of the
Family Code provides that “[n]o child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order
otherwise.” It will be observed that in both provisions, a strong
bias is created in favor of the mother. This is specially evident in
Article 213 where it may be said that the law presumes that the mother is the
best custodian. As explained by the Code Commission:
The
general rule is recommended in order to avoid many a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows
of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for “compelling reasons” for the good
of the child.
For
these reasons, even a mother may be deprived of the custody of her child who is
below seven years of age for “compelling reasons.” Instances of unsuitability
are neglect, abandonment, unemployment and immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity, and affliction with a
communicable illness. If older than seven years of age, a child is
allowed to state his preference, but the court is not bound by that choice. The
court may exercise its discretion by disregarding the child’s preference should
the parent chosen be found to be unfit, in which instance, custody may be given
to the other parent, or even to a third person.
In the
case at bar, we are being asked to rule on the temporary custody
of the minor, Gardin Faith, since it appears that the proceedings for
guardianship before the trial court have not been terminated, and no
pronouncement has been made as to who should have final custody of the
minor. Bearing in mind that the welfare of the said minor as the
controlling factor, we find that the appellate court did not err in allowing
her father to retain in the meantime parental custody over
her. Meanwhile, the child should not be wrenched from her familiar
surroundings, and thrust into a strange environment away from the people and
places to which she had apparently formed an attachment.
Moreover,
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. It
should be recalled that in a petition for review on certiorari, we rule only on
questions of law. We are not in the best position to assess the
parties’ respective merits vis-à-vis their opposing claims for
custody. Yet another sound reason is that inasmuch as the age of the
minor, Gardin Faith, has now exceeded the statutory bar of seven years, a
fortiori, her preference and opinion must first be sought in the choice of
which parent should have the custody over her person.
For the
present and until finally adjudged, temporary custody of the subject minor
should remain with her father, the private respondent herein pending final
judgment of the trial court. (Dinah B. Tonog vs. Court of Appeals and Edgar V. Daguimol, February 7, 2002)
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