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]
- Twin-Notice Rule and Procedural Requirements in Employment Termination Proceedings - June 3, 2020
- When Travel Pass is Needed for Interzonal Travel during Community Quarantine - June 1, 2020
- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020
I have a live in partner with two daughters. the eldest is with her mom and the youngest is with us. they are both below 7 y/o. However, the mother did not give any custody even moral support to the kid that is with us.. but us, we provide the necessity of the kid that is with her. We just stop sending support because we are lack of money because we have a lot of expense, the kid with us has a nanny because we’re both working. Now, what we want is that since the mother is not working, we want to give her the kid that is with us, so that the elder daughter will be also supported. but the mother has a lot of alibi. she didn’t want to get the kid that is with us. Can we sue her for child abandonment and child neglect?and she even says that, she will only get the kid if we are giving them 10k/head/month.. (fyi: my live in partner and her is not married to demand.. ) can i sue her as well as child trafficking?please i need the response.. thanks.
Helo good day i have question..i have a friend who has 7 yer old daughter and the mother left her child when the child was 1yr old and left the custody to my friend’s mother,the mother went abroad and never supported the child,since my friend and the mother was not married because the girl was married and have 2kids.before..my friend supported their child because he was working abroad too..now for almost 4yrs of abundment of the mother she was now claiming to get her daughter back..my question is can the mother can claim back her daughter?..pls help thank u so much
Wife goes home a lot drunk in the morning after spending night after work. If she keeps this up i should split with her. She denies being alcoholic and yet does not call or go home early. I dont want my son left with her. Knowing she spends a lot of time after work drunk.
I am a father of a 2years old child. My wife and I decided to part ways. Now, I have a girlfriend. Will that deprive me of my rights over my child?
Atty, i am married now after my annulment be granted last Dec 2013. My problem is about my kids (9 and 6 yrs old). in the annulment, the custody was given to my ex wife but since 2011 only 3 or 4 times she contacted the kids who are in my mother side since. can i file abandonement and remove the custody sa kanya po? and how can we adopt my kids (i mean with my wife) kasi illegitimate po ba sila na?
i appreciate your reply.
we want to clear my kids documentation as we are planning to migrate to canada sooner..
sorry for my ignorance po sa law..
Best Regards,
VICTOR
I am a filipina with a 5 year old daughter her father is also a filipino but my daughter is not with me shes with her father where not married with the father of my daughter. I leave him because I found out that his flirting with other woman when I was abroad now I want to take my daughter and he dont want me to take my daughter please help me what should I do
Hi atty,
I rea?ly need help. My husband got a son from his past gf. This woman bring along the son to the Philippines. They never married before but the son born here in Malaysia and carry his surname. This woman always asked support from my husband to the point she assume that they are the real family of my husband. She cannot accept that my husband already married of me. And even asked my husband to come Philippines to marry her. She always asked my husband to send money, not even find any work in Philippines because she depend of my husband. But the worst is, she cannot take care properly of his son. Always get sick coz not enough food, bad shelter, etc, a lot of excuses. My husband already tired of her. Tired of her craziness. My husband want his son back. My husband can give him a good life here in Malaysia. Can he get custody of his son? What are the requirements? I’m also very tired of this woman and understanding the situation. pls help us atty what to do.
Mary, the issue of custody, especially a father trying to wrest custody from the mother, is a complicated matter. It’s always best that you discuss this matter with your lawyer. Good luck.
my sister, accused by her husband that she had an affair , but her husband dosnt have any proof, they have 1 child (below 6 yrs.old) , the child leave on her grandparents ( mother side) since birth, what will happen to this situation??
I have a relative who have 3 kids.the oldest lives with grandparents,the other 2 lives with thier parents but the mother have an affair with the cousin of her husband and its not the first time the mother done it,its her second time and its not a gossip because there are people whom she admits her affair.This mother also keep on telling her children not to go to a particular house and do not eat in there.She also provoking mess with the people within the neighborhood by posting slander things through facebook even though there is no name mention still her post obviously say who it is.and the husband dont do anything about this because he wants a complete family.
Is there any grounds to ask dswd help for the custody of the children by the relatives and what case can be file for this.
dear atty,
I’m a single father my child is with me..my child is only 2 yrs old..his mother abandoned him with his nanny for 2 months already..and with his abusive husband who treat my child badly..
I want to to know if I can get my child custody and if my wife can adopt my son legally?my wife wants my son to be her son in law.my son love her.