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
Dear Atty. Fred,
is it right that we can’t file against the custody of my niece 5y/old? Here’s a brief story.my 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.
Pingback: A brief discussion on Infidelity, Concubinage, Adultery and Bigamy » Philippine e-Legal Forum
Pingback: Steps in Annulment and Declaration of Nullity of Marriage » Philippine e-Legal Forum
Pingback: Child Custody of the Father and Mother, Visitation Rights in the Philippines » Philippine e-Legal Forum
My brother and his live in partner separated their child is 2 years old, is it possible that my brother can have the custody of the child since the mother has no job and no permanent house. If they demand for a financial assistance to my brother how much is the rightful amount to give to the child? Thank u
Hi Mich. As to the amount, there is no exact formula or percentage. It depends on the needs of the child and the capacity of the parent. As to custody, the mother of an illegitimate child has custody. Read this related post: https://pnl-law.com/blog/child-custody-of-the-father-and-mother-visitation-rights-in-the-philippines/
Hi, I would like to seek answer. I had a husband and we were separated for almost 4years now. Though not legally, we had a agreement in the Baranggay that we would no longer care regarding our personal lives and that whatever there is to talk about it will onky be with our daughter’s welfare only. We even had an agreement on how to share time with our daughter. Like my daughter will stay with me during the weekdays, and on weekends with her dad. Soon i met my boyfriend, we live in together with my daughter, it was fine no problem at that time until i got pregnant with my second baby. Now the father of my eldest took my child and threatened me to file a case because I got pregnant. I want my child to be with me, cause I know her dad cannot take care of her properly. But I am scared because I dont want my new baby to be affected with this matter if my ex decides to file a case on me.
I have a question. My husband has an ex-girlfriend and they had a daughter turning 5yrs old this December. The mother of their daughter went to Dubai to work when the daughter is only 3yrs old and left the child to my husband. Then my husband found out that his ex-girlfriend has a boyfriend already in Dubai while still she and my husband is still in a relationship and she doesn’t give any support to the child while she was in Dubai. After 1 yr and a half the mother came back to the Philippines to get the child to my husband and had an agreement in the nearest barangay where my husband lives that the mother of the child should gave back the child to my husband when she will return to Dubai. The mother of the child didn’t gave back the child to my husband even she leave the Philippines already and left the child to her father, the grandfather of the child. My husband has no communication to the child while the mother of the child was in Dubai. After how many months, the mother came back in the Philippines and asking for the support of my husband since she told my husband that she has no work because of the pandemic. She is obligating my husband to support the child for 6,000 pesos every month . My husband just sent a package to the child for the basic needs. The child and the mother is at the province while my husband is here at metro manila. The child is asking her mother and the parents of her mother, the grand parents of the child if she can go to her father’s parents, grandparents of the child of my husband side. After that, also my husband ask if the child can see her grandparents on his side but the mother of the child refuses because the child has school and she told my husband that the child cannot see the the mother of my husband and my husband only can visit their daughter. After that, the mother doesn’t answer to all the messages and calls of my husband because my husband wants to talk to the child. My husband wanted to know what he can do on this situation.
Hello Sir
Please help us. I have a niece (2 years old) with my brother and his partner unwed. The mother left and went to Manila and now is living with another man but not disclosing it with us. My brother and my family are the one who took care of the child and giving the full support since baby but we never deprived her of seeing and being with the baby. But now she wanted to take the baby with her to Manila to live with her new live in partner. Please kindly advise us what to do.