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)