Case digest number 1: Sexual preference (homosexuality) does not disqualify mother from having custody of minor child

JOYCELYN GUALBERTO V. CRISANTO RAFAELITO GUALBERTO V

(G.R. NO. 154994);

CRISANTO RAFELITO G. GUALBERTO V. COURT OF APPEALS, et. al.

(G.R. No. 156254, June 28, 2005)

Panganiban, J.:

Facts

Crisanto Rafaelito Gualberto filed before the RTC of Paranaque City[1] a petition for declaration of nullity of his marriage to Joycelyn Pablo Gualberto with an ancillary prayer for the custody pendente lite of their 4-year old son, Rafaello. Crisanto alleged thatJoycelyntook away their child from their conjugal home and his school when she decided to abandon Crisanto. Despite efforts of Crisanto, he failed to seehis child.

During the hearing on the custody pendente lite, the private investigator hired by Crisanto to conduct surveillance on Joycelyn testified that Joycelyn was having lesbian relations witha certain Noreen in Cebu City.This was corroborated by the househelper of the spouses who stated that Joycelyn often leaves the house and on one occasion, she saw Joycelyn slap the child.

The trial court awarded the custody of the minor pendente lite to Crisanto. Joycelyn thereafter filed a Motion Dismiss with an ancillary prayer to lift the award of custody pendente lite but she did not present any evidence to support her motion.

This entry was posted on Sunday, August 14th, 2005 at 4:00 pm and is filed under Gender and Law, Supreme Court Decisions on Gender & Women's Rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

29 Responses to “Case digest number 1: Sexual preference (homosexuality) does not disqualify mother from having custody of minor child”

nae
November 29th, 2005 15:25
1

can homosexuality be ground for declaration of nullity of marriage?
Bing
November 29th, 2005 15:25
2

homosexuality per se is a ground for legal separation (Family Code), . There is only one ground for nullity of marriage under Art 36 of the Family Code, which is psychological incpacity to perform the essential obligations of marriage such as mutual love, support, fidelity.

In the Choi case, where the husband was caught by his wife using an eyebrow pencil and homosexuality was cited as one of the grounds, the nullity of marriage was granted by the court.

however, homosexuality is not a disorder of some sort, so i don’t believe that it should be proof of pyschological incapacity. however, i may agree, if it is presented as the reason for his or her incpacity to perform the marital obligation of lsexual ove and fidelity.

Bing
Anne Marie Lim
November 29th, 2005 15:26
3

friends, please read the following press release from our organization, the Rainbow Rights Project (R-Rights), Inc. regarding the discrimination case filed by marlon t. lacsamana against his former employer, miriam college in quezon city. please watch this case very closely as this could lay the groundwork for the passage of anti-discrimination legislation for the lgbt community. we can expect this incident to once again spur debates about our community ranging from same-sex marriage to the need for protective legislation, ie, anti-discrimination, anti-hate crimes, etc. recall that house bill 634 (the anti-discrimination bill) has passed the committee level and is now pending in the lower house.

for your statements of support, comments, suggestions, or other queries, please contact germaine leonin at 0919 2769436 or email us at r_rightsproject@yahoo.com. you can also email me privately at annemarie_lim@yahoo.com.

r-rights is an innovation in lgbt advocacy in the philippines. we are a group of lesbian and gay lawyers and paralegals working for legislative reform to protect lgbt rights.

in solidarity as always,
anne lim

—

PRESS RELEASE
November 18, 2005
Quezon City

In an unprecedented move, a gay man who was allegedly fired from his position at Miriam College for entering into a “gay wedding” with his same-sex partner, brings the Catholic educational institution to court.

In his complaint-affidavit which he filed today (November 18, 2005) at the Hall of Justice of Quezon City, Marlon T. Lacsamana invoked Quezon City Ordinance No. SP-1309, s-2003 enacted on September 2, 2003, entitled “An Ordinance Prohibiting All Acts of Discrimination Directed Against Homosexuals in Any Office in Quezon City, Whether in the Government or the Private Sector, and Providing Penalties Therefor.”

Section 1 and 2 of the Ordinance read:

“Sec. 1. All discriminatory acts committed against homosexuals in the matter of hiring, treatment, promotion or dismissal in any office in Quezon City, whether in the government or private sector, are hereby declared unlawful.

“Sec. 2. Any violation of the provision of this ordinance shall make the head or chief of office, the personnel officer and other concerned officers liable to fine of not more than Five Thousand Pesos (P5,000.00 ) or an imprisonment of not more than six (6) months, or both such fine and imprisonment at the discretion of the court.”

“This is the first case filed under the gay-friendly ordinance. It is a test case that could embolden other homosexuals who silently suffered from discrimination to come out and seek justice,” said Atty. Gari Bernal of Rainbow Rights Project (R-Rights), Inc.

In a research conducted in 2004 by the Lesbian Advocates
Philippines, (LeAP!) Inc. it was found that majority of the recorded instances of discrimination against lesbians happened in the workplace. The research showed that no employer admitted to discriminating on the basis of the gender identity or sexual orientation of the employee or applicant. The employers would claim that they were only implementing company policies or maintaining the company image. Until the Quezon City ordinance was passed, they had no protection.

“Let it not be said that anyone is being prejudged but Miriam
College is facing a serious charge. A court of law is the best venue to weigh the evidence; only a trial will ensure that the truth will come out,” said Germaine Leonin of R-Rights.

R-Rights is a group of lawyers and activists with legal background which provides the lesbian, gay, bisexual, and transgender (LGBT) Community with an academic think tank and legal resource center dedicated to sexual orientation law and public policy.
reply to this comment posted by Anne Marie M. Lim at 21:45

Is homosexuality an abnormality in the order things anent humanity? Is the same a choice? Can it be prevented?

Can we blame a person for being one?

I believe that the saddest and loneliest persons in the world are homosexuals who can not accept their being or those who are afraid to be themselves. What is it gonna take to defy the norms and live out the obscurity of one’s heart? Vexatious scrutiny? Trial by publicity? enormous mockery?

What can make a man real and at the same time destroy him? If homosexuals only have a choice, am sure they don’t want to be one.
Bing
November 29th, 2005 15:27
4

i would like to follow the developments in the case against miriam college. however, i hope we can get the facts before we can reach the conclusion that he was terminated (or did his contract expire?) because he is gay.

while we must all forms and manner of discrimination on the basis of sex and sexual orientation, we should not also condone the use of sexual orientation as a stick or club to get preferential treatment.

the issues in that case, i can guess, must be complicated. probably the complainant has filed a labor case for unlawful dismissal aside from the criminal case for violation of a quezon city ordinance making it unlawful to discriminate against employees in the private and public sector on the basis of their sexual orientation.

isn’t the issue in the labor case a prejudicial question?

Bing
nov. 20 731 pm
allee
November 29th, 2005 15:27
5

Is homosexuality an abnormality in the order things anent humanity? Is the same a choice? Can it be prevented?

Can we blame a person for being one?

I believe that the saddest and loneliest persons in the world are homosexuals who can not accept their being or those who are afraid to be themselves. What is it gonna take to defy the norms and live out the obscurity of one’s heart? Vexatious scrutiny? Trial by publicity? enormous mockery?

What can make a man real and at the same time destroy him? If homosexuals only have a choice, am sure they don’t want to be one.
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March 1st, 2006 04:05
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March 4th, 2006 21:52
19

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Bing
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Bing
March 8th, 2006 05:25
25

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here is an extraordinary annoucement: a multi-billion peso company engaged in the business of distributing hospital equipment and supplies is looking for a gay (male or female) legal assistant to the manager for legal and administration. contractual, for a period of 3 months.

if interested, look for Atty. L. Barias at
tel/fax 6337796
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March 15th, 2006 15:56
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May 10th, 2006 05:12
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Red Jasmine
June 18th, 2009 16:22
28

i was wondering if you could post on your blog something about property rights protection of same sex couple, given the present Philippine legal system. i would really love to hear your input on this topic. thanks

———————————–
http://redjasmineblog.blogspot.com/
Bing
June 25th, 2009 10:59
29

for now, same sex couples have no property rights as partners. of course, because marriage under our law is only betweem male and female persons. however, they can have businesses together, and can register that as a partnership in the SEC. they can also be co-owners of properties as long as one of them has no existing marriage with any other person, because in that case, she or he would still have a community property or conjugal partnership of gains with her or his spouse, even if they are living separately, for as long as the marriage is not declared void or a nullity.

read The Family Code of the Philippines