Pablo-Gualberto v. Gualberto V.

AUTHOR: Ocampo, Miguel

G.R. No. 154994. June 28, 2005
TOPIC: Who exercises PA, FC211-213 cf.
FC49, 102(6), 43(2), 63(2), 176. 49, 102 (6), 129
(9)
PONENTE: Panganiban, J.
FACTS:
 On March 12, 2002, respondent Crisanto Gualberto filed w/ the RTC of Paranaque an
annulment of his marriage w/ petitioner Jocelyn Pablo-Gualberto under FC36 and an ancilliary
prayer for custody of their 4 yr.old child, Rafaello.
 He wants custody because:
a. Jocelyn took Rafaello away from the conjugal home and his school when she decided to
abandon Crisanto on Feb. 2002;
b. Jocelyn was having lesbian relations w/ a certain Noreen Gay Cuidadano in Cebu.
 The RTC judge Helen Ricafort granted his custody. But the same judge reversed its decision
under FC213, kids below 7 yrs. old should stay w/ mother unless unfit and granted Crisanto
visitation rights. There was no reason for her to be unfit.
 CA reversed and gave back custody to Crisanto because the only incident to resolve was
Joycelyn’s Motion to Dismiss, not the issuance of the earlier Order (Custody).
ISSUE:
 WON custody should be awarded to Jocelyn. YES.
HELD:
 The SC states that under FC213, a mother is deemed unfit in the ff. events, neglect,
abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment
of the child, insanity or affliction with a communicable disease.
 Crisanto alleged that Jocelyn had lesbian relations and indeed, such immoral conduct would
warrant her unfit.
 The SC also states that 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.
 The SC cited cases to support its ruling:
a. Unson III v. Navarro: The mother was openly living with her brother-in-law, the child’s
uncle. Such unwholesome, immoral conduct warranted the awarding of custody of the 9yr.
child not in her favor.
b. Espiritu v. CA: Illicit relationships of the mother caused the child emotional disturbances,
personality conflicts, etc.
 It is insufficient for Crisanto just to say that Jocelyn is a lesbian. He must also demonstrate that
she carried on her alleged lesbian relationship w/ a person of the same sex in the presence of
their son or under circumstances not conducive to the child’s proper moral development. There
were no evidence of this.
 Also, the RTC judge found that it was insufficient because she personally had the chance to
observe and talk to the sps. and the child in her chambers, thus, concluded that she was not
unfit.