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PABLO-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.”