CUSTODY OF THE CHILD
ARTICLE 213 OF THE FAMILY CODE
Facts:
Before us are two consolidated petitions. The first is a Petition for Review[1] filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002 Decision[2] of the Court of Appeals
(CA) in CA-GR SP No. 70878. The assailed Decision disposed as follows:
"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the child is hereby ordered returned to[Crisanto Rafaelito G. Gualberto V].
"The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioner's] motion to lift the award of custody pendente lite of the child to [respondent]."
The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of Court, charging the appellate court with grave abuse of discretion for denying his Motion for Partial Reconsideration of the August 30, 2002
Decision. The denial was contained in the CA's November 27, 2002 Resolution
[O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of Parañaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente... lite of their almost 4-year-old son, minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his school (Infant Toddler's Discovery Center in Parañaque City) when [she] decided to abandon [Crisanto] sometime in... early February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and Ms.
Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded custody pendente lite of the child to [Crisanto.] [T]he Order partly read x x x:
'x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was enrolled at B.F. Homes, Parañaque City. Despite effort[s] exerted by him, he... has failed to see his child. [Joycelyn] and the child are at present staying with the former's step-father at the latter's [residence] at Caminawit, San Jose, Occidental Mindoro.
'Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu City.
'The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the spouses who stated that [the mother] does not care for the child as she very often goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.
[O]n April 16, 2002, the hearing of [Joycelyn's] motion to lift the award of custody pendente lite of the child to [Crisanto] was set but the former did not allegedly present any evidence to support her motion. However, on May 17, 2002, [the] Judge... allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced
Issues:
In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:
"1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the father, violated Art. 213 of the Family Code, which mandates that 'no child under seven years of age shall be separated from the mother, unless the court finds... compelling reasons to order otherwise.'
"2. Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?"[9]
On the other hand, Crisanto raises the following issues:
"A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge 'to consider, hear and resolve the motion to lift award of custody pendente... lite of the child to petitioner and x x x denied the motion for reconsideration thereof in its November 27, 2002 Resolution, considering that: (1) there is no such motion ever, then or now pending, with the court a quo; (2) the November 27, 2002 Resolution is... unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the validity of which has been upheld in the August 30, 2002 Decision of the respondent Court, has become final and executory; and
"B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts, physical and mental condition of the illegally detained Minor Rafaello is now unknown to petitioner and preliminary mandatory injunction with urgent prayer for immediate issuance of... preliminary [injunction], petitioner having a clear and settled right to custody of Minor Rafaello which has been violated and still is being continuously violated by [petitioner Joycelyn], be granted by this Honorable Court?"
Ruling:
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of custody. It has indeed been held that under certain circumstances, the mother's immoral conduct may constitute a compelling reason to deprive her of... custody.[50]
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.[51] 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 the offending spouse from exercising proper parental care.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because Crisanto's right to custody has not been proven to be "clear and unmistakable."[58] Unlike an ordinary preliminary injunction, the writ of... preliminary mandatory injunction is more cautiously regarded, since the latter requires the performance of a particular act that tends to go beyond the maintenance of the status quo.[59] Besides, such an injunction would serve no purpose, now that the... case has been decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED. The Petition in GR No. 156254 is
DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V.