Infidelity of the Mother in Child Custody Cases

Is infidelity sufficient to deprive a mother of custody over her child? The law categorically provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise (Article 213, Family Code). In other words, the law presumes that the mother is the best custodian,which finds its reason in the basic need of a child for his mother’s loving care. Moreover, insofar as illegitimate children are concerned, they are under the parental authority of their mother (Article 176, Family Code).

What are the “compelling reasons” that are deemed sufficient to deprive a mother of custody over her child below seven years of age?

These instances of unsuitability include neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness.

How about infidelity of the mother? Infidelity, by itself, is not sufficient to deprive a mother of her child under seven years of age. In the words of the Supreme Court in a 2005 case:

xxx 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. 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.

What if the child is older than seven years? If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person.

[See also Child Custody of the Father and Mother, Visitation Rights in the Philippines]


84 thoughts on “Infidelity of the Mother in Child Custody Cases

    1. Avatarkrami

      good pm sir, how about the mother has another man but not married, or soon to be marry to another and she’s the one who leave from the child’s father? does the mother has the right to take care of the child? and in fact the father’s family are the one who take care of the child and giving the full support of the child.

  1. Atty.FredAtty.Fred

    Reynold, those issues deserve a separate post. It’s not merely a matter of yes or no. Please drop by some other time and check if we already discussed related issues. Thanks.

  2. Avatarreynold guiao

    what are the grounds for child support if the mother abandoned the husband? and can she also ask for support from the husband if she is the one who left?

  3. Avatarlasf

    I am a mother of two and I have a relationship with a lesbian. My husband found out about it thru hacking my email and messengers. I decided to separate with him not primarily bec of my relationship but it has been an ongoing issue of differences and verbal abuse. Now we are undergoing an annulment, I just want to know my chances of having custody of my kids. I have been very hands on with my children, making sure they get the best and both excel in school. The only thing that bothers me is that I am unemployed, I have job offers but my children do not want me to be away from them. My husband continues to give support for the kids and I do have my “on the side businesses” which covers my day to day expenses plus I can allot some for my kids. He’s working abroad and he does have a good paying job. Do you think having a homosexual relationship and being unemployed will affect my chances of getting custody of my kids?

    1. AvatarBless

      Hi ,I have a 4years old son and Im not married with his dad , Im trying to get full custody over my son. And I have a previous record of Physical abuse agents his dad way back july 18,2018 is it still possible to use that record for winning over custody? also for not giving consistent support over to our child ? But I do have a partner right now and we are soon to be married will it affect my custody rights?

  4. Pingback: » The Irony of Love and Annulment Love mismo: Love in a world of cynics.

  5. AvatarNeedHelp

    Please help. My question is, does this paragraph “If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice.” from the article above also cover illegitimate children? My colleague is not married to her ex-boyfriend, and while she’s been advised by her lawyer that she’ll likely have custody of the child (6 years old), my curiosity begs for answers to the question, what if the child is 7 years old? And what if the child concerned is an illegitimate child, i.e. my colleague and her boyfriend were not married.

  6. Avatarlurcan

    i have a son with my girlfriend. when lived in together (not married) with our son. When our son reached 6months. my girlfriend went abroad. she hasn’t come back for almost 3yrs since then.

    Does that mean she is legally deprived for the custody of our son?
    Does that categorically means abandonment?


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