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]

Atty.Fred

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

  1. Avatarlurcan

    i have a son with my girlfriend. we 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?

    Reply
  2. Avatarjo_marph

    My brother has a daughter and had been separated with his wife three years ago. the child is only 6 years old and was left by my sister-in-law to our mother since the baby was only 1 month old. The mother was sending money (P1,000-3,000 not every month) if she has money for her child. Now she wants to get her daughter from my brother who is with my mother. Does my brother has the right for custody to his child? My sister-in-law allegedly has another family and she has a child already with the other man. What action will my brother do? If he hides his daughter from the mother, will he not be legally liable for any laws? Thank you.

    Reply
  3. Avatarlyss9655

    i am a filipina and I have 2 year old daughter from an Italian father… we were never married but he acknowledged our daughter in her birth certificate…i left him after 3 years of living-in because he was still courting other girls…
    Lately i have found another man (a foreigner) who would willingly marry me and even adopt my daughter…my problem is the father wants the custody of our baby… am i deprived of my right as the mother? he is consulting a lawyer about this… has he the authority to withhold our travel (my daughter and I) abroad after my marriage?

    Reply
  4. Avatarvenace

    my relationship wt my american bf has been on and off for nearly 12 yrs, we have our house in philippines and living in together with our children ( age 7 and 4 now ) but he is base in singapore for a work. Our children carries his name.We are both single. Are we considered common law couple even we live seperately due to work?
    GOD BLESS!

    venace

    Reply
  5. Avatarshe_babymo

    Good afternoon. My husband and i separated, i got pregnant by another man. I know i have made mistakes. The separation went well but it changed when he took my son to his province without my permission. Now he is depriving me of my son and im desperate and am totally devastated. I wanted to fight for my right since he is only 3 years old. do i have a chance?

    Reply
  6. Avatarsqeekywipers

    Simple….you abuse….(and their is evidence…sound..video….lots of witnesses)…….you go to jail and ROT or die .

    If the wife or kids is being a bitch and disobediant…which I’ve met and seen and known a few on occasion…..2% of men are abused by women…..yes it happens.

    98% or 2%……NO ONE is right to abuse mentally, verbally, or physically.

    regardless of race, sex, age, skin color, education, age…

    Abuse out of ignorance, anger, foolishness, selfishness, greed, frustration, jealousy, arrogance, lyers, anti-truth, corrupt, etc… whatever…

    from anyone towards anyone…is wrong.

    NO one is exempt…not the pope, your priest, the president….your dad, your mother, YOU, a child, a wife, a father, a boss….

    No one…

    and don’t argue someone has the right to ABUSE someone.

    abuse is abuse.

    that goes for any of you on here.

    OWN UP FOR YOUR DAMN MISTAKES NOW.

    Reply
  7. Avatarvynne

    Does a stepmother have the right for custody on her husband’s biological son in case of his death or mental insanity?

    Reply
  8. Avatarsuzet

    i have a brother who have a twin son.but the mother of this baby is married to another guy.i want to know what is our chance and right to give us the custody of this children.

    Reply
  9. Avatarkayecasupanan

    Hi, I am a mother of a two year old boy, my husband and I separated just a month ago. My son is in my custody. But, we are having trouble and almost a fight on arrangements to the child. I just want to know, who should be the one to be deciding when it comes to our 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).” – does this law apply to married but separated couples? like us?

    Reply
  10. Avatarkayecasupanan

    And am I the one who has the right to decide because my son is with me and that I am the one providing for his everyday needs?

    Reply

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