Jocelyn Pablo-Gualberto v.
Crisanto Rafaelito separated from their mother finds its reason in the
Gualberto V.
GR. No. 154994, June 28, 2005
Facts:
The court consolidated and considered two
appeals by former husband and wife Crisanto
Rafaelito Gualberto V and Joycelyn Pablo-Gualberto
regarding their divorce and the custody of their child.
Crisanto had filed for divorce and custody of
their child - Rafaello. Joycelyn failed to appear at the
court proceedings and the judge awarded custody to
Cristiano after having considered evidence that
Jocelyn was having extramarital lesbian relations and
that she did not care for and was witnessed slapping
her child. It was further held that her parental
authority was subordinated to that of Crisanto under
Article 211 of the Family Code. Jocelyn challenged this
decision, which was reversed and she was granted
custody on the basis that, according to Article 213 of
the Family Code, a minor child shall not be separated
from his mother unless a court finds compelling
reasons to order otherwise.
At the next instance, the Court of Appeal
annulled the second court order on procedural
grounds and returned custody to Crisanto until
Jocelyn’s motion was decided on again. In the current
case, both parties petitioned the Supreme Court
against the Court of Appeal's ruling.
Issue:
Custody of child after parental separation.
Whether the Court of Appeal violated Article 213 of
the Family Code when it awarded custody of the child
to Crisanto and was it Article 213 or Article 211 which
applied in this case.
Held:
The Supreme Court held that in cases
concerning minor children below the age of 7, Article
213 of the Family Code takes priority as it is in the best
interests of a young child to be cared for by his
mother unless 'compelling' reasons are presented for
a court to order otherwise. As no such reasons were
presented or proved, custody was awarded to the
mother.
The Supreme Court said that the general rule
that children under seven years of age shall not be
basic need of minor children for their mother’s loving
care and that this rule is recommended in order to
avoid a tragedy where a mother has her baby torn
away from her. Any exception to this rule can only be
made for ‘compelling reasons’ for the good of the
child, but such cases must indeed be rare.
Here, Crisanto cites immorality due to
alleged lesbian relations as the compelling reason to
deprive Joycelyn of custody. The mother’s immoral
conduct may constitute a compelling reason to
deprive her of custody, 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.
It was held that in order 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 her from
exercising proper parental care. It was, therefore, not
enough for Crisanto to show merely that Joycelyn was
a lesbian, but he had to also demonstrate that she had
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. However, in the current case,
there was 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.
Excerpts citing CRC and other relevant human rights
instruments:
The Convention on the Rights of the Child provides
that “in all actions concerning children, whether
undertaken by public or private social welfare
institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child
shall be a primary consideration.”
The principle of “best interest of the child” pervades
Philippine cases involving adoption, guardianship,
support, personal status, minors in conflict with the
law, and child custody. In these cases, it has long
been recognized that in choosing the parent to whom
custody is given, the welfare of the minors should
always be the paramount consideration. Courts are
mandated to take into account all relevant
circumstances that would have a bearing on the
children’s well-being and development. Aside from
the material resources and the moral and social
situations of each parent, other factors may also be
considered to ascertain which one has the capability
to attend to the physical, educational, social and
moral welfare of the children. Among these factors
are the previous care and devotion shown by each of
the parents; their religious background, moral
uprightness, home environment and time availability;
as well as the children’s emotional and educational
needs.

Provisions

Article 211 of the Family Code: The father and the

mother shall jointly exercise parental authority over
their children. In the case of disagreement, the
father’s decision shall prevail, unless there is a judicial
order to the contrary. A mother's authority is
subordinated to the father's. In all controversies
regarding the custody of minors, the sole and
foremost consideration is the physical, educational,
social and moral welfare of the child, taking into
account the respective resources and social and
moral situations of the contending parties.

Article 213 of the Family Code: No child under seven

years of age shall be separated from his mother
unless the Court finds compelling reasons to order
otherwise.