Tonog vs.

CA

Facts:

Dinah B. Tonog gave birth to Gardin Faith Tonog, her illegitimate daughter with Edgar V. Daguimol. The
two cohabited for a time and lived with Edgar's parents and sister. A year after, 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 later filed a petition for guardianship over Gardin. The court granted the petition and appointed
Edgar as the legal guardian.

Dinah filed a petition for relief from judgment. The trial court set aside its original judgment and allowed
Dinah to file her opposition to Edgar's petition. Meanwhile, the court issued a resolution granting
Dinah's motion for custody over Gardin. Dinah moved for the immediate execution of the resolution.

Edgar filed a petition for certiorari before the Court of Appeals. The CA 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 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.

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.

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, G.R. No. 122906, February 7, 2002)

BRIONES VS MIGUEL

FACTS:
On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against respondents
Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child Michael Kevin
Pineda. The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with
respondent Loreta P. Miguel. The petitioner prays that the custody of his son Michael Kevin Pineda be
given to him as his biological father and [as] he has demonstrated his capability to support and educate
him.

ISSUE:
Whether or not as the natural father, may be denied the custody and parental care of his own child in
the absence of the mother who is away.

HELD:
There is thus no question that Respondent Loreta, being the mother of and having sole parental
authority over the minor, is entitled to have custody of him.

She has the right to keep him in her company.

She cannot be deprived of that right, and she may not even renounce or transfer it "except in the cases
authorized by law.” Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no
child under seven years of age shall be separated from the mother, except when the court finds cause to
order otherwise.

JOYCELYN PABLO-GUALBERTO, vs. CRISANTO RAFAELITO GUALBERTO V.

Facts:
Crisanto filed a petition for the nullity of his marriage with Joycelyn with an ancillary prayer for custody
pendente lite of their 4 year old son Rafaelo, whom Joycelyn took away with her from the conjugal
home and his school
Joycelyn failed to appear despite notice therefore Crisanto presented evidence ex parte
Joycelyn took their child. Despite efforts exerted by him, he has failed to see his child. Joycelyn and the
child are presently staying with the former’s stepfather in Occidental Mindoro
Renato Santos, commissioned by Crisanto to do a surveillance on Joycelyn, testified that Joycelyn was
having lesbian relations with a Noreen Cuidadano in Cebu City
Findings of Renato Santos were corroborated by Cherry Batistel, the house helper of the spouses. She
testified that Joycelyn was always out of the house and saw one time slap Rafaelo.
RTC awarded the custody to Crisanto
1. Mother’s authority is subordinated to that of the father
2. Joycelyn had no reason to take the child with her
Joycelyn filed a motion to lift the award of custody pendente lite of the child to Crisanto. RTC awarded
the custody to Joycelyn:
1. Rafaello is barely 4 years old and and pursuant to Art. 213 of the Family Code, he shall not be
separated from his mother unless the Court finds compelling reasons to order otherwise.
2. The grounds stated by Crisanto are not compelling reasons to deprive the mother of her child’s
custody
3. Visitation rights were granted to Crisanto
Crisanto filed a petition for certiorari, charging the RTC with grave abuse of discretion for issuing the
Order granting Joycelyn the custody of their child.
CA ruled that grave abuse of discretion had been committed by the RTC:
1. The only incident to resolve was Joycelyn’s Motion to Dismiss, not the issuance of the earlier Order
2. The previous Order, granting the custody to Crisanto must prevail because the trial court did not
resolve the correct incident in the later Order.
3. Ordered the trial court judge to “consider, hear, and resolve the motion to lift the award of custody
pendente lite” without any motion of Joycelyn
Joycelyn brings this case to the SC:
1. CA erred in granting the custody to Crisanto in violation of
Art. 213 of the FC
2. Is it Article 213 or 211 which applies in this case?
8. Crisanto brings up this issue (among others):
1. CA gravely abused its discretion by ordering the trial court to hear the motion to lift the award of
custody pendente lite.
Legal Issue: W/N CA erred in granting the custody to Crisanto in violation of Art. 213 of the Family Code
Held:
Article 213 applies in this case as the parents are separated legally or otherwise.
Given the mandatory character of Article 213 of the Family Code, and the statutory recognition of
tender-age presumption, Joycelyn should be granted the custody of her child pendente lite.
As a general rule, mother is to be preferred in awarding custody of children under the age of 7. The so
called tender-age presumption under Article 213 of the Family Code may be overcome only by
compelling evidence of the mother’s unfitness.
The mother has been declared unsuitable to have custody of her children in one or more of the
following instances:
(1) Neglect
(2) Abandonment
(3) Unemployment
(4) Immorality
(5) Habitual Drunkeness
(6) Drug Addiction
(7) Maltreatment of the child
(8) Insanity or
(9) affliction with a communicable disease
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive
Joycelyn of custody. It has indeed been held that under certain circumstances, the mother’s immoral
conduct may constitute a compelling reason.
But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even
the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to
have custody of her minor child. To deprive the wife of custody, the husband must clearly establish that
her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending
spouse from exercing the proper parental care. (Espiritu vs. CA; Unson III vs. Navarro)
It is not enough for Crisanto to show merely that Joycelyn was a lesbian. He must also demonstrate that
she carried on her purported relationship with a person of the same sex in the presence of their son or
under circumstances not conducive to the child’s proper moral development. Such a fact has not been
shown here. There is no evidence that the son was exposed to the mother’s alleged sexual proclivities or
that his proper moral and psychological development suffered as a result.

Grande v. Antonio

FACTS:

Respondent [the father] filed a petition for judicial approval of recognition of the filiation of the two
children with the prayer for the correction or change of the surname of the minors from Grande to
Antonio when a public document acknowledged before a notary public under Sec. 19, Rule 132 of the
Rules of Court is enough to establish the paternity of his children. But he wanted more: a judicial
conferment of parental authority, parental custody, and an official declaration of his children’s surname
as Antonio citing the “best interest of the child”. Respondent’s petition was granted by RTC and
modified by the CA. In CA’s decision, it reversed the granting of the custody of the two children to the
respondent but affirmed the surname change to of the same to Antonio. Aggrieved, wife filed petition
for certiorari in SC.

ISSUES:

Whether or not the father can exercise parental authority and consequently, custody, over his
illegitimate children upon his recognition of their filiation.

Wether or not the father has the right to compel the use of his surname by his illegitimate children upon
his recognition of their filiation.

RULING:

On the first issue, no, petitioner cannot exercise custody over the children.

Parental authority over minor children is lodged by Art. 176 on the mother; hence, respondent’s prayer
has no legal mooring. Since parental authority is given to the mother, then custody over the minor
children also goes to the mother, unless she is shown to be unfit.

Respondent Antonio failed to prove that petitioner Grande committed any act that adversely affected
the welfare of the children or rendered her unsuitable to raise the minors; she cannot be deprived of
her sole parental custody over their children.

On the second issue, the answer is still a no.

An acknowledged illegitimate child isunder no compulsion to use the surname of his illegitimate father.

Even if IRR of RA 9255 provides that a surname change “shall” be necessary upon recognition of
paternity, it is of no moment. The clear, unambiguous, and unequivocal use of “may” in Art. 176
rendering the use of an illegitimate father’s surname discretionary governand illegitimate children are
given the choice on the surnames by which they will be known. Case is remanded to lower court to
determine the choice of said children.