THE INSTANCE/S THAT THE MOTHER
court must take into account the respective resources and social
OF A CHILD BELOW SEVEN (7) YEARS
OLD CAN BE DEPRIVED OF THE
CHILD’S CUSTODY.
Custody of a child below seven (7) years of age belongs to the
mother. This is known as the maternal preference rule.
However, it admits of certain exceptions. Article 214 of the
Family Code says for “compelling reasons”, such custody may
be denied and granted to another party. The doctrinal rule
enunciated by the Supreme Court in the case of Tonog vs.
Court of Appeals (G.R. No. 122906, February 7,
2002) enumerated some of these compelling reasons as
“neglect, abandonment, unemployment and immorality,
habitual drunkenness, drug addiction, maltreatment of the
child, insanity, and affliction with a communicable illness.”
In the said instances, a mother can therefore be deprived of the
child’s custody.
COMPELLING REASONS
VOL. 376, FEBRUARY 7, 2002
CASE: Tonog vs. Court of Appeals
G.R. No. 122906. February 7, 2002.*
DINAH B. TONOG, petitioner, vs. COURT OF APPEALS and
EDGAR V. DAGUIMOL, respondents.
Parent and Child; Custody; In custody disputes, it is axiomatic that
the paramount criterion is the welfare and well-being of the child.—
In custody disputes, it is axiomatic that the paramount criterion
is the welfare and well-being of the child. In arriving at its
decision as to whom custody of the minor should be given, the
and moral situations of the contending parents.
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.—
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. 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.” Neither does the law nor jurisprudence
intend to downplay a father’s sense of loss when he is separated
from his child.
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, 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.
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.—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 (private respondent herein) 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.
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
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-a-
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. Tonog
vs. Court of Appeals, 376 SCRA 523, G.R. No. 122906 February
7, 2002
COMPELLING REASONS
a.) NEGLECT, ABANDONMENT
CASE: Medina v. Makabali
No. L-26953. March 28, 1969.
ZENAIDA MEDINA, assisted by her husband, FELICIANO
CASERO, petitioner-appellant, vs. DRA. VENANCIA L.
MAKABALI, respondent-appellee.
Parent and child; Custody; Welfare of child paramount.—While our
law recognizes the right of a parent to the custody of her child,
Courts must not lose sight of the basic principle that “in all
questions on the care, custody, education and property of
children, the latter’s welfare shall be paramount” (Civil Code of
the Philippines, Art. 363), and that for compelling reasons, even
a child under seven may be ordered separated from the mother
(Do.). This. is as it should be, for in the continual evolution of
legal institutions, the patria potestas has been transformed from
the jus vitae ac necis (right of life and death) of the Roman law,
under which the offspring was virtually a chattel of his parents,
into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now
supreme. As pointed out by Puig Peña, now “there is no power,
but a task; no complex of rights (of parents) but a sum of duties;
no sovereignty, but a sacred trust for the welfare of the minor.”
(Puig Peña, Derecho Civil, Vol. 2, part II, p. 153.)
Same; Same; Where respondent other than real mother has right of
custody.—The right of parents to the company and custody of
their children is but ancillary to the proper discharge of parental
duties to provide the children with adequate support,
education, moral, intellectual and civic training and
development (Civil Code, Art. 356). As remarked by the court
below, petitioner proved remiss in these sacred duties; she not
only failed to proved the child with love and care but actually
deserted him, with not even a visit, in his tenderest years, when
he needed his mother the most. It may well be doubted what
advantage the child could derive from being coerced to
abandon respondent’s care and love to be compelled to stay
with his mother and witness her irregular menage a trois with
her common-law husband and the latter’s legitimate wife.
Medina vs. Makabali, 27 SCRA 502, No. L-26953 March 28, 1969
COMPELLING REASONS
b.) UNEMPLOYMENT,
IMMORALITY
CASE: Cervantes v. Fajardo
Cervantes vs. Fajardo
G.R. No. 79955. January 27, 1989.*
IN THE MATTER OF THE PETITION FOR A WRIT OF
HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES, NELSON L. CERVANTES AND ZENAIDA
CARREON CERVANTES, petitioners, vs. GINA CARREON
FAJARDO AND CONRADO FAJARDO, respondents.
Civil Law; Persons and Family Relations; Adoption; In all
controversies regarding custody of minors, the foremost consideration
is the moral, physical and social welfare of the child; Provision that no
mother shall be separated from a child under 5 years of age will not
apply where the court finds compelling reasons to rule otherwise.—In
all cases involving the custody, care, education and property of
children, the latter’s welfare is paramount. The provision that
no mother shall be separated from a child under five (5) years
of age, will not apply where the court finds compelling reasons
to rule otherwise. In all controversies regarding the custody of
minors, the foremost consideration is the moral, physical and
social welfare of the child concerned, taking into account the
resources and moral as well as social standing of the contending
parents. Never has this Court deviated from this criterion.
Same; Same; Same; Petitioners who are legally married, are morally,
physically, financially and socially capable of supporting the minor
and giving her a future better than the natural mother.—Is it
undisputed that respondent Conrado Fajardo is legally married
to a woman other than respondent Gina Carreon, and his
relationship with the latter is a common-law husband and wife
relationship. His open cohabitation with co-respondent Gina
Carreon will not accord the minor that desirable atmosphere
where she can grow and develop into an upright and moral-
minded person. Besides, respondent Gina Carreon had
previously given birth to another child by another married man
with whom she lived for almost three (3) years but who
eventually left her and vanished. For a minor (like Angelie
Anne C. Cervantes) to grow up with a sister whose “father” is
not her true father, could also affect the moral outlook and
values of said minor. Upon the other hand, petitioners who are
legally married appear to be morally, physically, financially,
and socially capable of supporting the minor and giving her a
future better than what the natural mother (herein respondent
Gina Carreon), who is not only jobless but also maintains an
illicit relation with a married man, can most likely give her.
Same; Same; Same; Where the minor has been legally adopted by
petitioners and a decree of adoption dissolved the authority of the
natural parents over the adopted child, parental authority over the
adopted child shall be exercised jointly by both spouses.—Besides, the
minor has been legally adopted by petitioners with the full
knowledge and consent of respondents. A decree of adoption
has the effect, among others, of dissolving the authority vested
in natural parents over the adopted child, except where the
adopting parent is the spouse of the natural parent of the
adopted, in which case, parental authority over the adopted
shall be exercised jointly by both spouses. The adopting parents
have the right to the care and custody of the adopted child and
exercise parental authority and responsibility over him.
Cervantes vs. Fajardo, 169 SCRA 575, G.R. No. 79955 January
27, 1989
COMPELLING REASONS
c.) HABITUAL DRUNKENNESS
CASE: Perez v. CA
Perez vs. Court of Appeals
G.R. No. 118870. March 29, 1996.*
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF
APPEALS (Ninth Division) and RAY C. PEREZ, respondents.
Civil Law; Family Code; Couples who are separated in fact, such as
petitioner and private respondent, are covered within the term
separation.—Since the Code does not qualify the word
“separation” to mean “legal separation” decreed by a court,
couples who are separated in fact, such as petitioner and private
respondent, are covered within its terms.
Same; Same; The use of the word “shall” in Article 213 of the Family
Code and Rule 99, Section 6 of the Revised Rules of Court connotes a
mandatory character.—The provisions of law quoted above
clearly mandate that a child under seven years of age shall not
be separated from his mother unless the court finds compelling
reasons to order otherwise. The use of the word “shall” in
Article 213 of the Family Code and Rule 99, Section 6 of the
Revised Rules of Court connotes a mandatory character.
Same; Same; Article 17, paragraph three of the Child and Youth
Welfare Code (P.D. 603) reducing the child’s age to five years has been
repealed by the Family Code.—The Family Code, in reverting to
the provision of the Civil Code that a child below seven years
old should not be separated from the mother (Article 363), has COMPELLING REASONS
expressly repealed the earlier Article 17, paragraph three of the
Child and Youth Welfare Code (Presidential Decree No. 603) “However, the mere fact that the mother is a lesbian is not
which reduced the child’s age to five years. a compelling reason to deprive her of custody without
Same; Same; The general rule that a child under seven years of age showing that she carried on her purported relationship
shall not be separated from his mother finds its raison d’etre in the with a person of the same sex in the presence of the child
basic need of a child for his mother’s loving care.—The general rule or under circumstances not conducive to the child’s moral
that a child under seven years of age shall not be separated from development.”
his mother finds its raison d’etre in the basic need of a child for
CASE: Pablo v. Gualberto-Gualberto, G.R. No. 154994, June
his mother’s loving care. Only the most compelling of reasons
28, 2005
shall justify the court’s awarding the custody of such a child to
someone other than his mother, such as her unfitness to exercise
sole parental authority. In the past the following grounds have
been considered ample justification to deprive a mother of
custody and parental authority: neglect, abandonment,
unemployment and immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity and being sick
with a communicable disease.

Same; Same; It has long been settled that in custody cases, the foremost
consideration is always the welfare and best interest of the child.—It
has long been settled that in custody cases, the foremost
consideration is always the welfare and best interest of the
child. In fact, no less than an international instrument, the
Convention on the Rights of the Child provides: “In 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.” Perez vs. Court of Appeals,
255 SCRA 661, G.R. No. 118870 March 29, 1996