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Pablo-Gualberto v. Gualberto, Supreme Court of the Philippines (28 June 2005)

Procedural Posture

The father of a four-year-old child filed a petition to annul his marriage with the child’s mother, who had left the marital home with the child and was allegedly in a relationship with another woman, and the father attached an ancillary request for custody of the child while the litigation was pending. The trial court granted custody pendente lite to the father. The mother then filed a motion to the same court to reverse its previous judgment and grant her custody, which she obtained.

The father filed a petition for certiorari before the Court of Appeals. The Court decided to grant him temporary custody until the issue was resolved but it also stressed that his wife’s motion to lift the award of custody still had to be considered properly and ruled upon. Both parties then filed separate petitions to the Supreme Court, challenging the decision of the Court of Appeals. The Supreme Court considered the petitions simultaneously.


Whether the mother’s relationship with another woman was a compelling reason to deprive her of the custody of her child.

Domestic Law

Child and Youth Welfare Code, Article 17.

Civil Code of the Philippines, Article 363.

Family Code of the Philippines, Articles 211 and 213.

International Law

Convention on the Rights of the Child, Article 3.

Reasoning of the Court

After addressing procedural questions, the Court considered the substantive issues regarding the custody of a minor child. The so-called “tender-age presumption“ under Article 213 of the Family Code provided that, in case of separation of the parents, custody of children under seven years of age was granted to the mother unless the court found “compelling reasons” to order otherwise.

The mother argued that under Article 213 of the Family Code her child could not be separated from her because of his young age. Conversely, the father argued that the mother was unfit to take care of their son and therefore there were “compelling reasons” to grant custody of the child to him.

The Court noted that, under Article 3 of the Convention on the Rights of the Child, the best interest of the child was to be the primary consideration. The principle of the best interest of the child informed national jurisprudence concerning minors and was the paramount consideration in decisions concerning parental custody.

When making a decision on parental custody, courts had to take into account all factors that were relevant to the child’s well-being and development, including material resources, care and devotion, and “moral uprightness”.

Under national jurisprudence, mothers had been declared unsuitable for parental custody for various “compelling reasons”, including abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease.

In the present case, the father argued that the mother should not be granted custody on the basis of her immorality, due to an alleged same-sex relationship. However, the Court found that sexual orientation alone did not prove parental neglect or incompetence. To deprive the mother of custody, the father had to establish that her “moral lapses” had an adverse impact on the welfare of the child.

The Court concluded that it was not enough for the father to show merely that his wife was a lesbian in order to obtain custody. He also had to demonstrate that she conducted her relationship with a person of the same sex under circumstances that were unconducive to their child’s proper moral development. In the present case, there was no evidence that the child had been “exposed” to his mother’s sexual relationship or that his moral and psychological development had suffered as a result.

The Court found no compelling reason to deprive the mother of the custody of her child. It therefore reversed the Court of Appeals decision and reinstated the judgment of the Regional Trial Court.

Pablo-Gualberto v. Gualberto, Supreme Court of the Philippines (full text of judgment, PDF)