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.

75 thoughts on “Infidelity of the mother in child custody cases

  1. jen

    same question i have here, how about the mother has another man and soon to be married and having a baby, does the mother’s MOM has the right to take care of the child?

  2. Juliet

    What if the wife already have a paramour and is also unemployed. Would it be a ground for the husband to get the custody of the child?

  3. Imelda

    Ask q lang po..naghiwlay po kmi ng asawa q last 2014 then iniwan q po sa knila ung anak dhil sa khilingan nila na sa knila tumira ung anak q dahil duon nag aaral.dahil auq po mcra ung pag aaral ng anak q pumayag po ako.pero gusto q po sana mkuha ung anak q at aq ang mag paaral para po maalagaan at msubaybayan q xa anu po dapat qmg gawin?

  4. Imelda

    Sana po mtulungan nyo ngaun po andto aq sa malaysia..2019 po balik q sa pinas balak q po pag uwi q n kunin po ung anak q..9 years ol n po xa sa 2019..may pag asa po ba aqng mpunta xa sa akin?

  5. B843

    good day attorney! any ways, i have been not in good terms with my husband since i left to work abroad 4 years now.we fight a lot in regards with everyday expenses, school of our kid etc, and ive talked to him about his ability to provide atleast, or to have a plan so he can be better but then again all failed.ive made my decision that i dont want us to be together anymore.i want my marriage to be void, i want my fathers last name to be my surname.but we do communicate because of my son is with my mom and i provide everything.can file for annulment? in what grounds?whats the first thing to do?

    1. B843

      by the way, i do have a BF right and we both wanted to have a baby maybe maximun 5 years from now.i wanted to clear first my previous marriage and i wanted all to be in cleared.i dont want problem in the future if ill get pregnant and i want the custody of my 1st me out please thank you so much.

  6. Levy

    Good day…
    Good day sir…
    I would like to ask how can i have custody of my daughter, Her mother and I are not married but i am the father i also signed the birth certificate..
    Her mother now works in SAUDI, ever since she left i was partly the one who takes care of our daughter, financial, health and etc., i really love my daughter to the extend that i over react when it comes to my daughters needs which i really want to provide, and last year december her mother came home for vacation and I caught her having an affair to a PAKISTAN GUY because she left her mobile phone and since I am in doubt i checked it and I saw there conversations and all, i tried to ignore it, but then i have decided to move on with my life…
    after a month she left again and worked…
    I dont want to take away our daughter to her or to her family i just want my daughter to be with me at least during the weekend, to be with her mean the world to me… I was the one who was always with her, when shes sick or even at the hospital AND NOW her family is trying to take her away from me, they wont allow me to take my daughter out for bonding or even stay with me at home, while on the past she used to stay with me for more than a month or so, now that i have moved on they said i cannot go there, just send money for my daughter’s need through PALAWAN…

    All i want sir/maam is to be with my daughter at least a few days in a month…
    i ahve work during the weekdays so at least during the weekend should be fine…

    please sir/maam? any advice?

  7. abegail

    my partner and i are in relationship she is a lesbian and have 2 kids i just want to ask.her prenta dwcided to lether 1 child be adopted by there relative now we want to get rhw child do we have to file a case againts his parents and relative if ever they insist rhe right for the child?and the custody of the child my partner and i are working now can we still get our son back?do we still have to negotiate our parents since oir relative are insisting that our parents have the right to decide for our son

  8. Angelyn

    In our situation how can we get the custody of my brother’s son. He passed away 7 months ago due to suicide because he doesn’t take anymore the attitude of her live in partner. The girl got into two affair while in a relationship with him. She didnt also taking care the baby. The baby is malnourished and she always leave it alone with her mother w/c also dont even take care. She’s dependent with her mom and all she does is dating and chatting? Do we have a chance for the custody of the child?

  9. jean

    my brother and her ex has been seperated for 3 years and the mother worked abroad for 1 year during the time that she’s there she didn’t support her child finally she didn’t even care about his son.. So as the time goes on she went back to the philippines but during that time she never visit nor see his son coz she has new affair with another man.. One day she came she forces her son to go with her without the permission of the father who took care of the child.. can this be a ground to make the custody will be grant on his father?

  10. Annabelle

    Hi Atty. Me and my husband separated since jan. of 2013 after i caught him in the act with our son’s baby sitter then me and 3 kids went back to my province in 2014, and then he never financially supported the kids for almost 4 years even I’ve been asking for help when kids were sick. Did not visit the kids too until now,did not communicate with us. I heard from his parents that he has been having affair to different women in mindoro and live in partner but separated because of his gambling habit.
    Then dec. of 2018 he went abroad again with the help of his brother and they contacted me to inform me so i can ask for financial support for my kids. He did started giving at least 10k but always delayed and sometimes 2 mos or 1 mo no support .
    Since our 1st born is going to college i need to pursue him to give regularly and on time so i know how to budget our finances. I told him that if he is not going to fix his financial responsibility i will ask legal action. He got mad and threatened me that since i have a boyfriend now, he claimed that he has the right to get the kids from me when he came home this december. Can he really do that? After just giving support for about 1 1/2 years and just because i have a boyfriend? How about those years that he did not support? And those times he has been having an affair? And he is not even giving half of his salary because we believe he still has a girlfriend too. Can he possibly take my kids from me? They are age 17,13 and 8

  11. Bash

    Dear Atty. Fred,
    is it right that we can’t file against the custody of my niece 5y/old? Here’s a brief sister-in-law admitted that she committed adultery ,she got pregnant. My brother is working here in abroad and due that he is coming back in Philippines for vacation my sister-in-law aborted the child.We want to get our niece from her.Please advise.


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