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GUALBERTO VS.

COURT OF APPEALS

G.R. Nos. 154994 and 156254 June 28, 2005

Facts: Crisanto Rafaelito G. Gualberto V filed before the RTC a petition for declaration of
nullity of his marriage to Joycelyn w/ an ancillary prayer for custody pendente lite of their
almost 4 year old son, Rafaello, whom her wife took away w/ her from their conjugal home
and his school when she left him.

The RTC granted the ancillary prayer for custody pendente lite, since the wife failed to
appear despite notice. A house helper of the spouses testified that the mother does not care
for the child as she very often goes out of the house and even saw her slapping the child.
Another witness testified that after surveillance he found out that the wife is having lesbian
relations.

The judge issued the assailed order reversing her previous order, and this time awarded
the custody of the child to the mother. Finding that the reason stated by Crisanto not to be a
compelling reason as provided in Art 213 of the Family Code.

Issue: Whether or not the custody of the minor child should be awarded to the mother.

Held: Article 213 of the Family Code provided: Art 213. In case of separation of parents
parental authority shall be exercised by the parent des granted by the court. The court shall
take into account all relevant consideration, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.

No child under seven yrs of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise,

This Court has held that when the parents 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, w/c reads:

Art 363. In all question on the care, custody, education and property pf children, the latter
welfare shall be paramount. No mother shall be separated from her child under seven years
of age, unless the court finds compelling reason for such measure.

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