VOL.

376,FEBRUARY7,2002

523

Tonog vs. Court of Appeals

*

G.R.No.122906.February7,2002.

DINAH B. TONOG, petitioner, vs. COURT OF APPEALS

andEDGARV.DAGUIMOL,respondents.
Parent and Child; Custody; In custody disputes, it is axiomatic
that the paramount criterion is the welfare and wellbeing of the
child.In custody disputes, it is axiomatic that the paramount
criterionisthewelfareandwellbeingofthechild.Inarrivingatits
decisionastowhomcustodyoftheminorshouldbegiven,thecourt
musttakeintoaccounttherespectiveresourcesandsocialandmoral
situationsofthecontendingparents.
Same; Same; In both Articles 176 and 213 of the Family Code,
it will be observed that a strong bias is created in favor of the
mother.Statutesetscertainrulestoassistthecourtinmakingan
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,
Article213oftheFamilyCodeprovidesthat[n]ochildunderseven
years of age shall be separated from the mother, unless the court
findscompellingreasonstoorderotherwise.Itwillbeobservedthat
in both provisions, a strong bias is created in favor of the mother.
ThisisspeciallyevidentinArticle213whereitmaybesaidthatthe
law presumes that the mother is the best custodian. This is not
intended, however, to denigrate the important role fathers play in
the upbringing of their children. Indeed, we have recognized that
both parents complement each other in giving nurture and
providing that holistic care which takes into account the physical,
emotional, psychological, mental, social and spiritual needs of the
child.Neitherdoesthelawnorjurisprudenceintendtodownplaya
fatherssenseoflosswhenheisseparatedfromhischild.
Same; Same; A mother may be deprived of the custody of her
child who is below seven years of age for compelling reasons, such
as abandonment, unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity,
and affliction with a communicable illness.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,habitualdrunkenness,drugaddiction,maltreatmentof
thechild,insanity,andafflictionwithacommunicableillness.If
_______________
* SECONDDIVISION.

524

524

SUPREMECOURTREPORTSANNOTATED
Tonog vs. Court of Appeals

older than seven years of age, a child is allowed to state his

preference,butthecourtisnotboundbythatchoice.Thecourtmay
exercise its discretion by disregarding the childs preference should
the parent chosen be found to be unfit, in which instance, custody
maybegiventotheotherparent,oreventoathirdperson.
Same; Same; Bearing in mind that the welfare of the minor is
the controlling factor, the Court finds that the Court of Appeals did
not err in allowing her father to retain in the meantime parental
custody over her.Inthecaseatbar,wearebeingaskedtoruleon
thetemporary 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
thewelfareofthesaidminorasthecontrollingfactor,wefindthat
the appellate court did not err in allowing her father (private
respondentherein)toretaininthemeantimeparentalcustodyover
her.Meanwhile,thechildshouldnotbewrenchedfromherfamiliar
surroundings, and thrust into a strange environment away from
the people and places to which she had apparently formed an
attachment.
Same; Same; Where the minor has already exceeded the
statutory bar of seven years, her preference and opinion must first be
sought in the choice of which parent should have the custody over
her person.Whether a mother is a fit parent for her child is a
question of facttobeproperlyentertainedinthespecialproceedings
before the trial court. It should be recalled that in a petition for
reviewoncertiorari,weruleonlyonquestionsoflaw.Wearenotin
the best position to assess the parties respective merits visavis
theiropposingclaimsforcustody.Yetanothersoundreasonisthat
inasmuchastheageoftheminor,GardinFaith,hasnowexceeded
the statutory bar of seven years, a fortiori, her preference and
opinion must first be sought in the choice of which parent should
havethecustodyoverherperson.

PETITIONforreviewoncertiorariofadecisionoftheCourt
ofAppeals.
ThefactsarestatedintheopinionoftheCourt.
Ponce Enrile, Reyes & Manalastasforpetitioner.
Pacifico B. Tacub & Associatesforprivaterespondent
E.V.Daguimol.
525

VOL.376,FEBRUARY7,2002
Tonog vs. Court of Appeals
DELEON,JR.,J.:

525

Before us is a petition for review on certiorari seeking the

reversal of two (2) Resolutions dated August 29, 1995 and
1
November29,1995issuedbytheformerSecondDivision of
the Court of Appeals in CAG.R. SP No. 35971. The first
resolution modified the appellate courts decision
promulgated in the said case, and granted custody of the
minor,GardinFaithBelardeTonog,toprivaterespondent.
The second resolution denied petitioners motion for
reconsideration.
Thepertinentfactsare:
OnSeptember23,1989,petitionerDinahB.Tonoggave
2
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
timeandlivedwithprivaterespondentsparentsandsister
in the latters house in Quezon City where the infant,
GardinFaith,wasawelcomeadditiontothefamily.
AyearafterthebirthofGardinFaith,petitionerleftfor
the United States of America where she found work as a
registered nurse. Gardin Faith was left in the care of her
father (private respondent herein) and paternal
grandparents.
OnJanuary10,1992,privaterespondentfiledapetition
for guardianship over Gardin Faith, docketed as Sp. Proc.
No.Q9211053,intheRegionalTrialCourtofQuezonCity.
On March 9, 1992, the trial court rendered judgment
appointing private respondent as legal guardian of the
minor,GardinFaith.
Petitioneraversthatshelearnedofthejudgmentofthe
trial court rendered in Sp. Proc. No. Q9211053 only on
April 1, 1992. Accordingly, 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
judgmentandallowedpetitionertofileher
_______________
1JusticeFidelP.Purisima,ponente;JusticeSalomeA.Montoyaand

JusticeGodardoA.Jacinto,concurring.
2BirthCertificate,Annex9,PrivateRespondentsComment;Rollo,

p.73.
526

526

SUPREMECOURTREPORTSANNOTATED
Tonog vs. Court of Appeals

opposition to private respondents petition. The latter, in

turn, filed a motion for reconsideration. In a related
incident, petitioner filed on October 4, 1993, a motion to
remandcustodyofGardinFaithtoher.
OnNovember18,1994,thetrialcourtissuedaresolution
denyingprivaterespondentsmotionforreconsiderationand
granting petitioners motion for custody of their child,
Gardin. Petitioner moved for immediate execution of the
saidresolution.
Due to the adverse turn of events, private respondent

filed a petition for certiorari before the Court of Appeals,

docketed as CAG.R. SP No. 35971, questioning the
actuations of the trial court. On March 21, 1995, the
appellatecourtdismissedthepetitiononthegroundoflack
of merit. However, after private respondent filed a motion3
forreconsideration,theappellatecourtissuedaResolution
datedAugust29,1995modifyingitsdecision,asfollows:
AlthoughWedofindthePetitiondismissible,insofarasitassailsthe
September15,1993ResolutionoftherespondentCourt,givingdue
course to private respondents Petition for Relief from Judgment,
and the November 18, 1995 Resolution denying his Motion for
Reconsideration,Wediscernagoodgroundtoletphysicalcustodyof
subject child, Gardin Faith Belarde Tonog, continue under the
petitioner,withwhomthesaidchildhadbeenliving,sincebirth.
While it is understandable for private respondent, as mother, to
assert and seek enforcement of her legal and natural rights as the
natural guardian of her child, the emotional and psychological
effectsuponthelatterofachangeincustodyshouldbeconsidered.
Tobesure,transferofcustodyofthechildfrompetitionertoprivate
respondentwillbepainfulforthechildwho,allherlife,hasbeenin
thecompanyofpetitionerandherpaternalgrandparents.
Now, inasmuch as the issue of guardianship and custody over
thesamechildisstillpendingdeterminationbeforetherespondent
Court, the possibility of petitioners appointment as the guardian
cannotbediscounted.Itwouldcertainlywreakhavoconthechilds
psychological makeup to give her to the custody of private
respondent,onlytoreturnhertopetitionershouldthelatterprevail
inthemaincase.Subjectingthechildtoemotionalseesawshouldbe
avoided.Itisthusmoreprudenttolet
_______________
3Rollo,pp.3032.

527

VOL.376,FEBRUARY7,2002

527

Tonog vs. Court of Appeals

physicalcustodyofthechildinquestionbewithpetitioneruntilthe
matter of her custody shall have been determined by final
judgment.
WHEREFORE, the Decision, promulgated here on March 21,
1995isaccordinglyMODIFIED,andstatusquowithrespecttothe
physical custody of the child, Gardin Faith Belarde Tonog, is
ordered.Itisunderstoodthatthelattershallremainwithpetitioner
untilotherwiseadjudged.

Petitioner thus interposed the instant appeal after the

appellatecourtdeniedhermotionforreconsiderationinits
4
Resolution datedNovember29,1995.
Petitionercontendsthatsheisentitledtothecustodyof
the minor, Gardin Faith, as a matter of law. First, as the
motherofGardinFaith,thelawconfersparentalauthority
upon her as the mother of the illegitimate minor. Second,
Gardin Faith cannot be separated from her since she had
not,asofthen,attainedtheageofseven.Employingsimple
arithmetic however, it appears that Gardin Faith is now

twelveyearsold.
In custody disputes, it is axiomatic that the paramount
5
criterion is the welfare and wellbeing of the child. In
arriving at its decision as to whom custody of the minor
should be given, the court must take into account the
respective resources6 and social and moral situations of the
contendingparents.
Inturn,theparentsrighttocustodyovertheirchildren
is enshrined in law. Article 220 of the Family Code thus
provides that parents and individuals exercising parental
authority over their unemancipated children are entitled,
among other rights, to keep them in their company. In
legal contemplation, the true nature of the parentchild
relationship encompasses much more than the implication
of ascendancy of one and obedience by the7 other. We
explainedthisinSantos, Sr. v. Court of Appeals:
_______________
4Rollo,pp.3435.
5 Silva

v. Court of Appeals, 275 SCRA 604, 609 (1997); Cervantes v.

Fajardo,169SCRA575,578(1989).
6Unson

III v. Navarro,101SCRA183,189(1980).

7242SCRA407,411(1995).

528

528

SUPREMECOURTREPORTSANNOTATED
Tonog vs. Court of Appeals

Therightofcustodyaccordedtoparentsspringsfromtheexerciseof
parentalauthority.Parentalauthorityorpatria potestas in Roman
Law is the juridical institution whereby parents rightfully assume
controlandprotectionoftheirunemancipatedchildrentotheextent
requiredbythelattersneeds.Itisamassofrightsandobligations
which the law grants to parents for the purpose of the childrens
physicalpreservationanddevelopment,aswellasthecultivationof
their intellect and the education of their heart and senses. As
regards parental authority, there is no power, but a task; no
complexofrights,butasumofduties;nosovereigntybutasacred
trustforthewelfareoftheminor.
Parental authority and responsibility are inalienable and may
notbetransferredorrenouncedexceptincasesauthorizedbylaw.
Therightattachedtoparentalauthority,beingpurelypersonal,the
lawallowsawaiverofparentalauthorityonlyincasesofadoption,
guardianship and surrender to a childrens home or an orphan
institution. When a parent entrusts the custody of a minor to
another,suchasafriendorgodfather,eveninadocument,whatis
given is merely temporary custody and it does not constitute a
renunciation of parental authority. Even if a definite renunciation
ismanifest,thelawstilldisallowsthesame.

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
illegitimatechildrenshallbeundertheparentalauthority
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
thatinbothprovisions,astrongbiasiscreatedinfavorof
themother.ThisisspeciallyevidentinArticle213whereit
may be said that the law presumes that the mother is the
bestcustodian.AsexplainedbytheCodeCommission:
The general rule is recommended in order to avoid many tragedy
whereamotherhasseenherbabytornawayfromher.Nomancan
soundthedeepsorrowsofamotherwhoisdeprivedofherchildof
tender age. The exception allowed by the rule has to be for
compelling reasons for the good of the child, those cases must
indeedberare,ifthemothersheartisnottobeundulyhurt.Ifshe
haserred,asincasesofadultery,thepenaltyofimprisonmentand
the divorce decree (relative divorce) will ordinarily be sufficient
punishmentforher.Moreover,moralderelictionwill
529

VOL.376,FEBRUARY7,2002

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Tonog vs. Court of Appeals

not have any effect upon the baby who is as yet unable to
8
understandhersituation.

This is not intended, however, to denigrate the important

rolefathersplayintheupbringingoftheirchildren.Indeed,
we have recognized that both parents complement each
other in giving nurture and providing that holistic care
which takes into account the physical, emotional,
psychological,
mental, social and spiritual needs of the
9
child. Neither does the law nor jurisprudence intend to
downplayafatherssenseoflosswhenheisseparatedfrom
hischild:
Whilethebondsbetweenamotherandhersmallchildarespecialin
nature,eitherparent,whetherfatherormother,isboundtosuffer
agony and pain if deprived of custody. One cannot say that his or
her suffering is greater than that of the other parent. It is not so
much the suffering, pride, and other feelings of either parent but
10
thewelfareofthechildwhichistheparamountconsideration.

For these reasons, even a mother may be deprived of the

custody of her child who is below seven years of age for
compellingreasons.Instancesofunsuitabilityareneglect,
abandonment, unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment of the child,
11
insanity, and affliction with a communicable illness. If
olderthansevenyearsofage,achildisallowedtostatehis
preference, but the court is not bound by that choice. The
courtmayexerciseitsdiscretionbydisregardingthechilds
preferenceshouldtheparentchosenbefoundtobeunfit,in
whichinstance,custodymaybegiventotheotherparent,or
12
eventoathirdperson.
_______________
8ReportoftheCodeCommission,p.12,ascitedinA.SEMPIODIY,

HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES 297

(1988).
9Perez

v. Court or Appeals,255SCRA661,665(1996).

10Espiritu
11Perez

v. Court of Appeals,242SCRA362,368(1995).

v. Court of Appeals,supra,atp.668.

12Espiritu

v. Court of Appeals,supra,atp.368.
530

530

SUPREMECOURTREPORTSANNOTATED
Tonog vs. Court of Appeals

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
pronouncementhasbeenmadeastowhoshouldhavefinal
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 (private
respondent herein) to retain in the meantime parental
custody over her. Meanwhile, the child should not be
wrenchedfromherfamiliarsurroundings,andthrustintoa
strange environment away from the people and places to
whichshehadapparentlyformedanattachment.
Moreover,whetheramotherisafitparentforherchildis
aquestion of fact to be properly entertained
in the special
13
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
thepartiesrespectivemeritsvisavistheiropposingclaims
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
shouldhavethecustodyoverherperson.
Awordofcaution:ourpronouncementhereshouldnotbe
interpretedtoimplyapreferencetowardthefather(herein
private respondent) relative to the final custody of the
minor, Gardin Faith. Nor should it be taken to mean as a
statementagainst petitioners fitness to have final custody
ofhersaidminordaughter.Itshallbeonlyunderstoodthat,
for the present and until finally adjudged, temporary
custodyofthesubjectminorshouldremainwithherfather,
theprivaterespondenthereinpendingfinaljudgmentofthe
trialcourtinSp.Proc.No.Q9211053.
_______________
13Cf.

Hontiveros, Jr. v. Intermediate Appellate Court,132 SCRA 745,

754(1984).
531

VOL.376,FEBRUARY7,2002

531

Yuchengco vs. Court of Appeals

WHEREFORE,theinstantpetitionisherebyDENIED.The

trialcourtisdirectedtoimmediatelyproceedwithhearing
Sp. Proc. No. Q9211053 upon notice of this decision. No
pronouncementastocosts.
SOORDERED.
Bellosillo (Chairman), Mendoza and Buena, JJ.,
concur.
Quisumbing, J.,Abroad,onofficialleave.
Petition denied.
Notes.Where the mother of an illegitimate child has
been deprived of her rightful custody by the childs father,
she is entitled to issuance of the writ of habeas corpus.
(David vs. Court of Appeals,250SCRA82[1995])
Thewritofhabeas corpus is the proper legal remedy to
enableparentstoregainthecustodyofaminorchildevenif
thelatterbeinthecustodyofathirdpersonofhisownfree
will.(Tijing vs. Court of Appeals,354SCRA17[2001])
o0o

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