PFRDigest – Pablo-Gualberto Vs. Gualberto, G.R. No.

15499, 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.

Ruling:
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, which 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.”