CASE RELATED TO ARTICLE 222-224

DINAH B. TONOG VS COURT OF APPEALS

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  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,  the Family Code provides that illegitimate children shall be under the parental authority of their mother.  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 childwho 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.