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]
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Been married for 10 years, been physically and continuously verbally abused. I left my husband this year, my fault is I left having an affair with another man. He found out and that the cause he have my kids now. His reason is that I am having a relationship and it will not be good for our kids and I am not a good mother. I am currently employed, not living with anyone, I pay for their yaya and I always send groceries which the husband throws away every time they receive it. Is there a way I can get custody over them? Or even just a visitation rights?
Good day po,
Atty paano po my kapatid po kasi ako adopted po sya, yung mga magulang nya po parehong ayaw syang makilala, iaabort po sana sya nung mother nya pero sabi po ng mama ko na ituloy nalang nya at kami po ang kukuha at mag aaruga sa bata kasi nag iisang anak lng po ako pareho pong may asawa yung biological parents nya at ayaw po ipaalam n galing skanila yung bata kaya nirehistro po ng mama ko s pangalan nila ng step father ko … 5yrs old na po yung kapatid ko ngayon at ang mama at step father ko po ang kinilala nya talagang magulang, may tendency po ba na bawiin ng biological mother nya po yung kapatid ko.. wala po kasing naging kasulatan kapitbahay lng po nmin ung nanay at pamilyado,yung tatay nman po ng kpatid ko pamilyado rin at politician kaya ayaw po nila magpagawa noon ng any agreement kasi ayaw po tlga nila lumabas ang totoo kaya tinuring po ng mama ko n sakanila tlaga galing yung kapatid ko… may tendency po ba na bawiin po ng biological mom nya yung kapatid ko po
hi. i need your help. i just want to ask if i have a big chance of winning custody of my child who is going to 3 yrs of age. i had infidelity issues that creates issues in our marriage. is this a big issue that will cause me to lose over child custody?
his father took the child when i was at work without my consent and left him at their province and return back in our house.
Please reply. i need your help.
hello po?isa po akong filipina na nakatira ngayon sa US na naka pag -asawa ng foreigner …i have two kids na naiwan sa pilipinas 2015 po na nag hiwalay kami ng leave-in partner ko na ama ng dalawa kung anak na babae nag hiwalay kami at naiwan ang mga anak ko sa pangangala ng aking leave-in partner at nang aking mother in law habang ako ay nag tratrabaho para masuportahan ang aking mga anak ng ngayon po balak kng kunin ang aking mga anak para dito sila mag aral sa ibang bansa bago ako umalis ng pinas kinausap ko ang aking leave -in partner na sana maintindihan nya na dalhin ko ang aking mgaa anak para sa kanilang kinabukasan pero di pumayag at pinag bantaan niya ang aking buhay at ang buhay ng akingg pamilya na naiwan sa pinas..Gusto kopong malaman kng saan nararapat ang custody ng mga bata na babae sa ina o sa ama…maraming sa salamat po god bless
What about the infidelity of the mother leads to a another pregnancy, is the father can fight for the custody of his child even tho the child’s age is below 7 years old?
*chance to fight for the custody* sorry for the grammar mistake
Good day! I have a concern. I separated my husband 5months ago, 4days after I arrived from abroad because he found out that I was being unfaithful with him. We are living with his parents for almost 10years. When he found out regarding the said issue, he and his parents (dad to be specific) had me moved out of their house leaving my 3children with them though I said to them that I will leave my children in their custody because they are the ones who are more sufficient on all matters like house and finance. We had an agreement and signed papers but not legal papers or documents, just a writen agreement that I am going to leave my husband with my children but will be able to visit them, just visit my children. But one day after a month and a half, I tried to visit to see my children but my mother-in-law almost doesn’t want my children to go and see me, nor to have a kiss or hug with them.
If the time comes that I am already stable, materially and financially, will I be able to get my children? Or even just a joint custody where I can have my children go out and stay with me for vacation?
how about the children taken by the father at the ages of 5 and 3 years old even the mother taking a good care of her children
What if the mother and father of the baby wants to separate from their family who can takecare of the baby the mother and father of the baby or the parent of my wife..
Were not married yet.
What of the the illegitimate child uses her father surname…then tha mother has another illegitimate child from different person. Is the mother still on custody of the 1st child?
Hi Atty. Would like to ask is it possible for a husband to file an annulment case towards his wife?