De Ocampo vs Florenciano
De Ocampo vs. Florenciano
107 Phil 35
FACTS:
Jose de Ocampo and Serafina Florenciano were married in
1938. They begot several children who are not living with
plaintiff. In March 1951, latter discovered on several occasions
that his wife was betraying his trust by maintaining illicit relations
with Jose Arcalas. Having found out, he sent the wife to Manila in
June 1951 to study beauty culture where she stayed for one
year. Again plaintiff discovered that the wife was going out with
several other man other than Arcalas. In 1952, when the wife
finished her studies, she left plaintiff and since then they had lived
separately. In June 1955, plaintiff surprised his wife in the act of
having illicit relations with Nelson Orzame. He signified his
intention of filing a petition for legal separation to which defendant
manifested conformity provided she is not charged with adultery
in a criminal action. Accordingly, Ocampo filed a petition for legal
separation in 1955.
ISSUE: Whether the confession made by Florenciano constitutes
the confession of judgment disallowed by the Family Code.
HELD:
Florenciano’s admission to the investigating fiscal that she
committed adultery, in the existence of evidence of adultery other
than such confession, is not the confession of judgment
disallowed by Article 48 of the Family Code. What is prohibited is
a confession of judgment, a confession done in court or through a
pleading. Where there is evidence of the adultery independent of
the defendant’s statement agreeing to the legal separation, the
decree of separation should be granted since it would not be
based on the confession but upon the evidence presented by the
plaintiff. What the law prohibits is a judgment based exclusively
on defendant’s confession. The petition should be granted based
on the second adultery, which has not yet prescribed.
CORPUS vs OCHOTORENA
FACTS
Mariano Macias filed a petition for the nullification of his
marriage with Margie Macias. This was raffled to Judge
Ochotorena. Said judge immediately served summons to
Margie which she did not receive because her whereabouts
were unknown and she only found out about it through a
newspaper. Margie then filed a Motion to dismiss which the
judge disregarded and proceeded with the petition of Mariano.
The judge proceeded with the hearing without the resolution of
the motions.
ISSUE
Whether or not respondent acted with bias and partiality
as well as ignorance of the law
RULING
The court ruled in the affirmative. Then judge acted on
the petition for nullification and proceeded with it without acting
on the motion to dismiss which was filed within the period
prescribed by law. The judge performed a so called “procedural
shortcut” and ignored the motion of the petitioner. The judge
also did not follow the Rules of Court which requires an
investigation to be made first by the prosecuting attorney with
regard to collusion and if none, to intervene and check for
fabrications in the evidence. It is only after this that a case may
be tried on its merits. Said order by the court did not take place
thus, the judge’s actions were erroneous.
Sin vs Sin
Sin vs. Sin
GR No. 137590, March 26, 2001
FACTS:
Florence, the petitioner, was married with Philipp, a Portuguese
citizen in January 1987. Florence filed in September 1994, a
complaint for the declaration of nullity of their marriage. Trial
ensued and the parties presented their respective documentary and
testimonial evidence. In June 1995, trial court dismissed Florence’s
petition and throughout its trial, the State did not participate in the
proceedings. While Fiscal Jabson filed with the trial court a
manifestation dated November 1994 stating that he found no
collusion between the parties, he did not actively participated
therein. Other than having appearance at certain hearings, nothing
more was heard of him.
ISSUE: Whether the declaration of nullity may be declared even with
the absence of the participation of the State in the proceedings.
HELD:
Article 48 of the Family Code states that “in all cases of annulment or
declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of
the state to take steps to prevent collusion between the parties and
to take care that evidence is not fabricated or suppressed. The trial
court should have ordered the prosecuting attorney or fiscal and the
Solicitor-General to appear as counsel for the state. No decision shall
be handed down unless the Solicitor General issues a certification
briefly stating his reasons for his agreement or opposition as the
case may be, to the petition. The records are bereft of an evidence
that the State participated in the prosecution of the case thus, the
case is remanded for proper trial.
EMILIO
vs.
R. TUASON, petitioner,
COURT OF APPEALS and MARIA VICTORIA L. TUASON,
respondents.
G.R. No. 116607 April 10, 1996
PUNO, J.:
Facts:
Private respondent Maria Victoria Tuason was married to
petitioner Emilio Tuason on June 3, 1972 and had two children.
However, at the time of the marriage, Emilio manifested
psychological incapacity to comply with his marital obligations
and resulted to violent fights between husband and wife. Due
to the series of physical abuse against the respondent, the
petitioner’s use of prohibited drugs, cohabiting with three
women, leaving the conjugal home and giving minimal child
support, abuse of conjugal property use and incurring of bank
debts without the respondent’s consent, she filed a petition for
annulment or declaration of nullity of their marriage in 1989
before the RTC Makati on the ground of psychological
incapacity and prayed for powers of administration to save
conjugal properties from further dissipation.
Emilio filed his Opposition to private respondent’s petition for
appointment as administratix of the conjugal properties of gains
on April 18, 1990. The trial court scheduled the reception of
petitioner’s evidence on May 11, 1990. A counsel for petitioner
moved for a postponement on the ground that the principal
counsel was out of the country and due to return on the first
week of June, thus granted the motion and reset the hearing to
June 8, 1990.
However, on June 8, 1990, petitioner failed to appear. On oral
motion of private respondent, the court declared petitioner to
have waived his right to present evidence and deemed the case
submitted for decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring
the nullity of private respondent’s marriage to petitioner and
awarding custody of the children to private respondent.
Counsel for petitioner received a copy of this decision on
August 24, 1990. No appeal was taken from the decision.
On September 24, 1990, private respondent filed a “Motion for
Dissolution of Conjugal Partnership of Gains and Adjudication
to Plaintiff of the Conjugal Properties” and was opposed by the
petitioner on October 17, 1990.
Also on the same day, October 17, 1990, petitioner, through
new counsel, filed with the trial court a petition for relief from
judgment of the June 29, 1990 decision. The trial court denied
the petition on August 8, 1991 which was affirmed by the Court
of Appeals on July 1994. Hence, this petition for review on
certiorari.
to appear on two scheduled hearings, the trial court deemed
him to have waived his right to present evidence and rendered
judgment on the basis of the evidence for private respondent.
Petitioner justified his absence at the hearings on the ground
that he was then “confined for medical and/or rehabilitation
reason.”
Petitioner also insisted that he had a valid and meritorious
defense. He cited Article 48 of the Family Code which provides
that in actions for annulment of marriage or legal separation,
the prosecuting officer should intervene for the state because
the law “looks with disfavor upon the haphazard declaration of
annulment of marriages by default.” He contended that when
he failed to appear at the scheduled hearings, the trial court
should have ordered the prosecuting officer to intervene for the
state and inquire as to the reason for his non-appearance.
However, the failure of the counsel to inform petitioner of
adverse judgment to enable him to appeal is an inexcusable
negligence and not a ground for setting aside a judgment valid
and regular on its face. Similarly inexcusable is the counsel’s
failure to notify the court of petitioner’s confinement. Petitioner
cannot claim he was deprived of due process by the Court.

Issue:
Whether or not that in the absence of the petitioner in the
hearing, the court should have ordered a prosecuting officer to
intervene under Article 48 of the Family Code.

Held:
In the case at bar, the decision annulling petitioner’s marriage
to private respondent had already become final and executory
when petitioner failed to appeal during the reglementary period.
Petitioner however claimed that the decision of the trial court
was null and void for violation of his right to due process. He
contended that he was denied due process when, after failing
 Issue and resolution:
AGNES GAMBOA-HIRSCH V. Custody dispute between the two biological parents of a child. The
Court revoked the joint custody order and awarded sole custody of the

HON. COURT OF APPEALS

child to the mother.
Court reasoning:

AND FRANKLIN HARVEY

Article 3 of the CRC requires that the best interests of the child shall be
a primary consideration, and national law, in the same way, provides
that the welfare of the child shall be the primary consideration. A
HIRSCH “tender-age presumption” exists in Article 213 of the Family Code,
under which a mother is to be preferred in awarding custody of children
under the age of seven. This presumption can be overturned only by
compelling evidence of the mother’s unfitness. The mother is declared
The Philippines unsuitable to have custody of her children in one or more of the
following instances: neglect, abandonment, unemployment, immorality,
Title: habitual drunkenness, drug addiction, maltreatment of the child,
Agnes Gamboa-Hirsch v. Hon. Court of Appeals and Franklin Harvey insanity, or affliction with a communicable disease. Here, the mother
Hirsch was not shown to be unsuitable or grossly incapable of caring for her
child, therefore there was no compelling reason to take the child from
Court:
the mother’s custody.
Supreme Court of the Republic of the Philippines
Excerpts citing CRC and other relevant human rights instruments:
Date:
The Convention on the Rights of the Child provides that “in all actions
11 July 2007
concerning children, whether undertaken by public or private social
CRC Provisions: welfare institutions, courts of law, administrative authorities or
Article 3: Best interests of the child legislative bodies, the best interests of the child shall be a primary
consideration (emphasis supplied).” The Child and Youth Welfare
Other International Provisions: Code, in the same way, unequivocally provides that in all questions
None regarding the care and custody, among others, of the child, his/her
Domestic Provisions: welfare shall be the paramount consideration.
Family Code, Article 213 CRIN Comments:
Child and Youth Welfare Code CRIN believes that this decision is not consistent with the CRC. CRIN
Case Summary: notes the right of the child to develop relationships with both their
Background: parents under Article 9 of the CRC. In this case, the Court failed to
The mother of a three year old child told the father that she would be consider the best interests of the child in continuing her relationship
taking the child on a brief vacation. The father later discovered that she with her father. The best interests of the child should be evaluated on a
and the child would not be returning to the family home. The father case by case basis, rather than through rigid legislative presumptions
petitioned the Court of Appeals (CA), which granted joint custody of such as the “tender-age presumption”.
the child to both the mother and father. This petition by the mother asks Citation:
the Supreme Court to set aside this decision of the CA. G.R. No. 174485, 11 July 2007

JOYCELYN PABLO-GUALBERTO V. CRISTIANO
RAFAELITO GUALBERTO; AND CRISTIANO
RAFAELITO GUALBERTO V. JOYCELYN D. PABLO-
GUALBERTO
PHILIPPINES
Title:
Joycelyn Pablo-Gualberto (petitioner) v. Cristiano Rafaelito Gualberto
(respondent); and Cristiano Rafaelito Gualberto (petitioner) v. Court of
Appeal and Joycelyn D. Pablo-Gualberto (respondents)
Court:
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.
Excerpts citing CRC and other relevant human rights instruments:
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.
Lacson vs Lacson 24 SCRA 837
Article 55
Facts:
On Feb 14, 1953, when they got married, Jan 9, 1963 is when
Carmen (respondent) left home in Bacolod to go to Manila, on March
12, 1963 Carmen filed a complaint for custody of children as well as
support in Juvenile and Domestic Relations Court of Manila, Before
it pushed through though they reached a settlement where the two
eldest kids would go to
petitioner Alfonso and the youngest would stay with Carmen, This
was affirmed by the CFI. and on May 7, 1963 respondent filed a
motion for the custody of all children be given to her in JDRC
since, she said she only entered into agreement to gain custody of
her younger children and thus should be given custody of the older
ones as well who are all below 7 years old. CA ruled that compromise
agreement as relating to custody of children should be declared null
and void and as such the execution of said judgment is void too.
ISSUE:
Whether or Not support should be awarded to the wife
HELD:
Yes, should have but was filed out of time, Older children at that time
were 5 and 6 so agreement should have been declared null and void
since no compelling reasons were stated otherwise, However the
children are now 11 and 10 and thus The 11 year old may choose
which parent they want to live with and Court may also award custody
to who they deem more fit through evidence