Gualberto vs. Gualberto (G.R. No. 154994.

June 28, 2005) Facts: Crisanto and Joycelyn Gualberto were spouses. However, several years after their marriage, the husband filed before the RTC a petition for declaration of nullity of their marriage with 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. In support for this prayer for custody, a house helper 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 was having lesbian relations. Regardless whether on not the testimonies were proven, the RTC granted the prayer for custody since the wife failed to appear despite notice. However, upon appeal, the order was on grounds that the reasons stated by the husband were not to compelling, as provided in Art 213 of the FC. Issue: WON the custody of the minor child should be awarded to the mother? Held & Rationale Yes. Art 213 of the FC provides: In case of separation of parents, parental authority shall be exercised by the parent designated 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 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise, The Court has held that when the parents separated, legally or otherwise, the foregoing provision governs the custody of their child. In this case, the father failed to present sufficient evidence against the fitness of the mother that will compel the court to rule against the mandatory character of Article 213. For example, there was no evidence that the son was exposed to the mothers alleged sexual proclivities (lesbianism) or that is proper moral and psychological development suffered as a result.