TONOG VS CA

Facts: On September 23, 1989, petitioner Dinah B. Tonog gave birth to Gardin Faith
Belarde Tonog, her illegitimate daughter with private respondent Edgar V. Daguimol.
Dinah was then a nursing student while Edgar was a licensed physician. They cohabited
for a time and lived with Edgar’s parents and sister in the latter’s house in Quezon City
where the infant, Gardin Faith, was a welcome addition to the family. A year after the
birth of Gardin Faith, Dinah left for the United States of America where she found work
as a registered nurse. Gardin Faith was left in the care of her father and paternal
grandparents. On January 10, 1992, private respondent filed a petition for guardianship
over Gardin Faith. On March 9, 1992, the trial court rendered judgment appointing
private respondent as legal guardian of the minor, Gardin Faith. Learning of the
judgment of the trial court rendered on April 1, 1992, Dinah filed a motion for
reconsideration. In a related incident, she filed on October 4, 1993, a motion to remand
custody of Gardin Faith to her. Due to the adverse turn of events, Edgar filed a petition
for certiorari before the Court of Appeals, questioning the actuations of the trial court.
On March 21, 1995, the appellate court dismissed the petition on the ground of lack of
merit. However, after Edgar filed a motion for reconsideration, the appellate court
issued a Resolution3 dated August 29, 1995 modifying its decision on the ground to let
physical custody of subject child, Gardin Faith Belarde Tonog, continue under the
Edgar, with whom the said child had been living, since birth. Thus, Dinah filed this
petition for review of ceritiorari.

Issue: Who, by law, has the right to custody over the child?

Ruling: In the case at bar, the father (Edgar) has the right to custody over the child. In
the case at bar, the SC is 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, the SC finds 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.

However, the parents’ right to custody over their children 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." Parental authority and responsibility are inalienable and may
not be transferred or renounced except in cases authorized by law. The right attached to
parental authority, being purely personal, the law allows a waiver of parental authority
only in cases of adoption, guardianship and surrender to a children’s home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a friend
or godfather, even in a document, what is given is merely temporary custody and it does
not constitute a renunciation of parental authority. Even if a definite renunciation is
manifest, the law still disallows the same.
Statute sets certain rules to assist the court in making an informed
decision.1âwphi1 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.

WILSON SY vs CA and MERCEDES TAN UY-SY

Facts: On 19 January 1994, Mercedes Tan Uy-Sy filed a petition for habeas corpus
against Wilson Sy before the Regional Trial Court of Manila. Respondent prayed that
said writ be issued ordering petitioner to produce their minor children Vanessa and
Jeremiah before the court and that after hearing, their care and custody be awarded to
her as their mother. In his answer, petitioner prayed that the custody of the minors be
awarded to him instead. Petitioner maintained that respondent was unfit to take
custody of the minors. He adduced the following reasons: firstly, respondent abandoned
her family in 1992; secondly, she is mentally unstable; and thirdly, she cannot provide
proper care to the children. The trial court ruled that the right to custody over minors
Vanessa and Jeremiah belonged to the mother.

Issue: Who, by law, has the right to custody over the child?

Ruling: In this case, it is the mother. The trial court was correct in restoring the
custody of the children to the mother, herein respondent, the children being less than
seven years of age, at least at the time the case was decided. Moreover, petitioner’s
contention that respondent is unfit to have custody over the minor children has not been
substantiated as found by both courts below. Thus, it is already too late for petitioner to
reiterate the assertion for only questions of law may be raised before this Court.
Furthermore, the determination of whether the mother is fit or unfit to have custody
over the children is a matter well within the sound discretion of the trial court, and
unless it is shown that said discretion has been abused the selection will not be
interfered with.

The applicable provision is Section 213 of the Family Code which states that:

Section 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent is unfit.

No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise. In case of legal separation of the parents,
the custody of the minor children shall be awarded to the innocent spouse, unless
otherwise directed by the court in the interest of the minor children. But when the
husband and wife are living separately and apart from each other, without decree of the
court, the court shall award the care, custody, and control of each child as will be for his
best interest, permitting the child to choose which parent he prefers to live with if he is
over seven (7) years of age unless the parent so chosen be unfit to take charge of the
child by reason of moral depravity, habitual drunkenness or poverty. In all controversies
regarding the custody of minors, the sole and foremost consideration is the physical,
educational, social and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the contending parents.
However, the law favors the mother if she is a fit and proper person to have custody of
her children so that they may not only receive her attention, care, supervision but also
have the advantage and benefit of a mother’s love and devotion for which there is no
substitute.

MEDINA VS MAKABILI

Facts: On February 4, 1961, petitioner Zenaida Medina gave birth to a baby boy named
Joseph Casero in the Makabali Clinic in San Fernando, Pampanga, owned and operated
by respondent Dra. Venancia Makabali who, being single, assisted at the delivery. The
boy was Zenaida's third, had with a married man, Feliciano Casero. The mother left the
child with Dra. Makabali from his birth. The latter took care and reared Joseph as her
own son; had him treated at her expense for poliomyelitis by Dra. Fe del Mundo, in
Manila, until he recovered his health; and sent him to school. From birth until August
1966, the real mother never visited her child, and never paid for his expenses.The trial
disclosed that petitioner Zenaida Medina lived with Feliciano Casero with her two other
children apparently with the tolerance, if not the acquiescence, of Caseros lawful wife
who resides elsewhere, albeit the offspring of both women are in good terms with each
other; that Casero makes about P400.00 a month as a mechanic, and Zenaida herself
earns from 4 to 5 pesos a day. After extracting from Dra. Makabali a promise to allow
the minor a free choice with whom to live when he reaches the age of 14, the Court held
that it was for the child's best interest to be left with his foster mother and denied the
writ prayed for. The real mother appealed.

Issue: Who has the right to custody over the child?

Ruling: In this case, it is Dra. Makabili. 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. As a
result, 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 Zenaida Medina proved remiss in these
sacred duties; she not only failed to provide 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 Casero and the latter's legitimate wife.

GUALBERTO VS GUALBERTO

Facts: On March 12, 2002, Crisanto Rafaelito G. Gualberto V filed before the RTC of
Parañaque City a petition for declaration of nullity of his marriage to Joycelyn D. Pablo
Gualberto, with an ancillary prayer for custody pendente lite of their almost 4-year-old
son, minor Rafaello, whom Joycelyn allegedly took away with her from the conjugal
home and his school Infant Toddler’s Discovery Center in Parañaque City when she
decided to abandon Crisanto sometime in early February 2002. On April 2, 2002, [RTC
Judge Helen B. Ricafort] heard the ancillary prayer of Crisanto for custody pendente
lite. Because Joycelyn allegedly failed to appear despite notice, Crisanto, a certain Col.
Renato Santos, and Ms. Cherry Batistel, testified before the Judge; documentary
evidence was also presented.

Issue: Who, by law, has the right to custody over the minor child?

Ruling: In this case, it is the mother. Article 213 of the Family Code provides:

"ART. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit. No child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order otherwise."

The SC has held that when the parents are separated, legally or otherwise, the foregoing
provision governs the custody of their child. Article 213 takes its bearing from Article
363 of the Civil Code, which reads:

"Art. 363. In all questions on the care, custody, education and property of children, the
latter’s welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure."(Italics
supplied)

The general rule that children under seven years of age shall not be separated from their
mother finds its raison d’etre in the basic need of minor children for their mother’s
loving care. In explaining the rationale for Article 363 of the Civil Code, the Code
Commission stressed thus:

"The general rule is recommended in order to avoid 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: those cases must indeed be rare, if the
mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation." A similar provision is embodied
in Article 8 of the Child and Youth Welfare Code (Presidential Decree No. 603). Article
17 of the same Code is even more explicit in providing for the child’s custody under
various circumstances, specifically in case the parents are separated. It clearly mandates
that "no child under five years of age shall be separated from his mother, unless the
court finds compelling reasons to do so." The provision is reproduced in its entirety as
follows:

"Art. 17. Joint Parental Authority. – The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the father’s decision shall prevail unless there is a
judicial order to the contrary. "In case of the absence or death of either parent, the
present or surviving parent shall continue to exercise parental authority over such
children, unless in case of the surviving parent’s remarriage, the court for justifiable
reasons, appoints another person as guardian.

"In case of separation of his parents, no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do soThe
above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is
unmistakable from the language of these provisions that Article 211 was derived from
the first sentence of the aforequoted Article 17; Article 212, from the second sentence;
and Article 213, save for a few additions, from the third sentence. It should be noted that
the Family Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.