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Joycelyn Pablo-Gualberto (petitioner) v. Cristiano Rafaelito Gualberto (respondent); and Cristiano Rafaelito Gualberto (petitioner) v. Court of Appeal and Joycelyn D. Pablo-Gualberto (respondents)

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Court/Judicial body:  Supreme Court of the Philippines
Date: 28 June 2005 CRC
Provisions:  Article 3: Best interests of the child
Domestic 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.

Case summary

Background: 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 and resolution: 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. 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.

Court reasoning: The Supreme Court said that the general rule that children under seven years of age shall not be separated from their mother finds its reason in the 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.

Excerpt citing CRC and other relevant human rights 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.

CRIN comments:  CRIN believes this case in inconsistent with the CRC. Although the Court correctly refers to the best interests principle, as required by the Convention, they only cite it as the basis for the presumption that the mother should be awarded custody of a young child, rather than assess which parent’s custody would best serve the interests of the child.

Citation:  G.R. No. 154994. 

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