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.

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

  1. Alfred

    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.

  2. April

    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?

  3. 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?

  4. 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?

  5. 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?

  6. 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?


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