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.

33 Responses to “Infidelity of the mother in child custody cases”


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  1. 15 lyss9655 Jun 19th, 2009 at 11:56 am

    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?

  2. 14 jo_marph Mar 30th, 2009 at 9:55 am

    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.

  3. 13 lurcan Jan 25th, 2009 at 10:18 am

    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?

  4. 12 lurcan Jan 25th, 2009 at 10:18 am

    i have a son with my girlfriend. when 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?

  5. 11 NeedHelp Mar 30th, 2008 at 3:31 pm

    Please help. My question is, does this paragraph “If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice.” from the article above also cover illegitimate children? My colleague is not married to her ex-boyfriend, and while she’s been advised by her lawyer that she’ll likely have custody of the child (6 years old), my curiosity begs for answers to the question, what if the child is 7 years old? And what if the child concerned is an illegitimate child, i.e. my colleague and her boyfriend were not married.

  6. 10 Atty. Fred Sep 28th, 2007 at 12:38 am

    Jojo Chua, may I suggest that you refer to this related post:
    http://jlp-law.com/blog/travel-clearance-required-travel-of-minors-abroad/

    lasf, I believe the asnwer is stated in the previous comments. Good luck and God bless. May I also refer you to this post:
    http://jlp-law.com/blog/travel-clearance-required-travel-of-minors-abroad/

  7. 9 lasf Sep 20th, 2007 at 12:53 pm

    I am a mother of two and I have a relationship with a lesbian. My husband found out about it thru hacking my email and messengers. I decided to separate with him not primarily bec of my relationship but it has been an ongoing issue of differences and verbal abuse. Now we are undergoing an annulment, I just want to know my chances of having custody of my kids. I have been very hands on with my children, making sure they get the best and both excel in school. The only thing that bothers me is that I am unemployed, I have job offers but my children do not want me to be away from them. My husband continues to give support for the kids and I do have my “on the side businesses” which covers my day to day expenses plus I can allot some for my kids. He’s working abroad and he does have a good paying job. Do you think having a homosexual relationship and being unemployed will affect my chances of getting custody of my kids?

  8. 8 Jojo Chua Nov 16th, 2006 at 1:36 am

    Can a mother bring her 15 year old son to US without his father’s consent?

  9. 7 Atty.Fred Nov 14th, 2006 at 3:53 pm

    Reynold, those issues deserve a separate post. It’s not merely a matter of yes or no. Please drop by some other time and check if we already discussed related issues. Thanks.

  10. 6 reynold guiao Nov 14th, 2006 at 11:19 am

    what are the grounds for child support if the mother abandoned the husband? and can she also ask for support from the husband if she is the one who left?

  11. 5 Atty. Fred Oct 30th, 2006 at 2:19 am

    Homosexuality, by itself, is not a ground to deny custody from a mother.

  12. 4 lawenthusiast Oct 29th, 2006 at 7:30 am

    is homosexuality on the part of the mother a ground for a mother being denied custody of the child?

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