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.

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

  1. venace

    my relationship wt my american bf has been on and off for nearly 12 yrs, we have our house in philippines and living in together with our children ( age 7 and 4 now ) but he is base in singapore for a work. Our children carries his name.We are both single. Are we considered common law couple even we live seperately due to work?


  2. she_babymo

    Good afternoon. My husband and i separated, i got pregnant by another man. I know i have made mistakes. The separation went well but it changed when he took my son to his province without my permission. Now he is depriving me of my son and im desperate and am totally devastated. I wanted to fight for my right since he is only 3 years old. do i have a chance?

  3. sqeekywipers

    Simple….you abuse….(and their is evidence…….lots of witnesses)…….you go to jail and ROT or die .

    If the wife or kids is being a bitch and disobediant…which I’ve met and seen and known a few on occasion…..2% of men are abused by women…..yes it happens.

    98% or 2%……NO ONE is right to abuse mentally, verbally, or physically.

    regardless of race, sex, age, skin color, education, age…

    Abuse out of ignorance, anger, foolishness, selfishness, greed, frustration, jealousy, arrogance, lyers, anti-truth, corrupt, etc… whatever…

    from anyone towards anyone…is wrong.

    NO one is exempt…not the pope, your priest, the president….your dad, your mother, YOU, a child, a wife, a father, a boss….

    No one…

    and don’t argue someone has the right to ABUSE someone.

    abuse is abuse.

    that goes for any of you on here.


  4. Pingback: A brief discussion on Infidelity, Concubinage, Adultery and Bigamy at Philippine e-Legal Forum

  5. vynne

    Does a stepmother have the right for custody on her husband’s biological son in case of his death or mental insanity?

  6. suzet

    i have a brother who have a twin son.but the mother of this baby is married to another guy.i want to know what is our chance and right to give us the custody of this children.

  7. kayecasupanan

    Hi, I am a mother of a two year old boy, my husband and I separated just a month ago. My son is in my custody. But, we are having trouble and almost a fight on arrangements to the child. I just want to know, who should be the one to be deciding when it comes to our 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).” – does this law apply to married but separated couples? like us?

  8. kayecasupanan

    And am I the one who has the right to decide because my son is with me and that I am the one providing for his everyday needs?

  9. donna

    gud day atty!

    i’m married with 5 kids. hiniwalan ko po ang asawa ko dahil nananakit, ngwawala kung di ko pinagbibigyana ng gusto nya…may mga medico legal to prove and blotters as well.

    i took all five kids, dahil alam ko di cla aasikasuhin ng tatay nila. at ayaw ng mga bata sa tatay nila.

    pero when i was at work he took the kids and i have no idea where.
    he’s texting me accusing me na i’m having an affair with my neighbor.

    sabi nya mga kids ko daw ang witness nya. wherein alam nila na ngmamalasakit lng ung tao sa amin dahil sa situation namin.

    i want to know kung pwede nya ba gawing grounds un para ideprive ako from my kids?

    and i need advise on how i can get custody since maliliit pa mga anak ko.

    he took the kids out of anger,,,kasi ayaw ko na bumalik sa knya.

    and he’s been texting me childish things na sobrang non-sense and para syang nababaliw

    sabi daw ilalayo nya at he make sure a di ko na makikita mga kids ko.

    sabi ng pamankin nya nglalakad daw ng visa at kasama mga kids mgabroad…di ba kelanagn ng consent ko?

    pls help me get my kids back and how to process this kind of situation legally

    thank you in advance.

  10. donna

    atty fred,

    hi. i left my husband and took all 5 kids with me because of neglegence and he was abusive.

    i have documents like blotter and medico legal to prove this.

    then after 2 months he asked me to go out with the kids because he wanted to see them and buy them toys whatever.

    so i said ok. since i was in the office that time, i said to my kids that their father will fetch them and i will go with them after work.

    6pm i was out of the office and went to our meeting place. they were not there. i called him and he said that i will never see them again.

    it’s been two weeks and he started texting me. he is accusing me that i’m having an affair with my neighbor which is not true.

    the kids said that they saw me kissing the guy and having sex in front of them. which i know my kids will never say such things.

    and he will file a case against me about this.

    pls help me. i want to know what steps should i take to get my kids back.

    aaron 12
    bimi 10
    naomi 7
    hermione 3
    and my eldest is with me.

  11. lostsoul

    will a mother can ask for support from the father of her daughter even if they are not married? even if she’s having a relationship with another man and the father of his daughter found out about it. now they are separated… is there a law stating the amount of which the father will give to his daughter?

  12. denniessss

    i have an issue with my wife,we are filing a case for annulment. Bot of us have been cheating on each other. i always supported my wife and her 2 kids from a different relationship and we have a son of our own. Now she is finding a new bf on the internet and wants to bring our son abroad. she don’t even know the man. Can i file a case so i can have custody over our son who is only 18 months old? i am a foreigner with a good job and many means to provide for my son..

  13. artianty

    I’m a mother of two. My eldest daughter is 3yrs old and youngest daughter is 11months old. My marriage is falling apart. My husband filled an annulment. As per the papers handed to me by his lawyers, as soon as they found out that I have a boyfriend my husband will get full custody of the kids. Do I have a counter for this? What are the things I need to ask (like a list) of things I need to consider for present and future support for the kids? I don’t have any clue of what are the things I need to ask as a support. I don’t earn that much compare to him who earns much much bigger than I, do I have a right to asked for financial assistance for utilities and groceries? How yaya? I need to work and I don’t have family here in manila. Should I demand for a yaya for the kids knowing that he is so capable of providing one?

  14. natethegreat

    isa po akong ama na humihingi ng tulong sa inyo,sa ngayon po wala akong trabaho.. iniwan po ako ng asawa ko kasama ang anak ko na 1yr & 8mths old. kasal po kme pero meron po siyang unang anak sa ibang lalake at hndi sila kasal.inabandona nya na din po yung una nyang anak sa iba. pinagdadamot nya po sakin ang bata, ayaw nya ipakita dahil daw po kulang ang binibigay kong sustento. Ngayon po nalaman ko na meron po siyang ibang lalaki kaya po pala ayaw niyang sabihin kung saan sila lumipat ng tirahan ng anak ko. kasama nya din po sa apartment yung lalaki.pinapalabas po nila na anak nila ang bata,dun din po nya iniiwan ang bata imbes po sa akin na mas may karapatan pag nawawala sya ng ilang araw sa trabaho. pwede po ba siyang matanggalan ng custody sa bata dahil sa gingawa nya at ako po ba ay mawawalan ng custody sa bata sa dahilan na wala akong trabaho?

  15. thinediolata

    spsponi am a filipina and i have two kids with my bf but we were never married. i fell in love with someone else cause he was always busy playing games like dota. he never had time with us,. then he found out about the guys whom i like. he saw our conversations then he printed them and he said that it would be his evidence when we filed the case in the court, does it mean that i cant take responsibility with my kids. im only 19 and i dont know what to do. even her mom told me that once they show their evidence to the court i cant see my kids anymore. please help me :(


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