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.

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

  1. Aireene Grace Marie O.

    me and my huband totally finished our communication after being here for 1 year in UAE and now started to go out with friends and he assumed that i had someone else as i am with my group of guy frineds that’s why he doesn’t want to sign for the processing of my daughters papers to visit here in UAE this December as he again assumed that i would run away with her and hid her from him. I asked him if i could borrow her here for few days and giving the full custody of her soon once we have enough resources but i demanded 30 days per year that i can have my daughter anywhere or even see her without his presence. Any case that i could file to have the rights to demand some days per year with my daugher for him to give me to allow me to visit my daughter here in UAE. Please help hope to hear from you soon

  2. Hannah

    Hi Im hannah step mother to be of a 4 yr old child, Iam the one who do everything her mother should do. Her mother only takes her on weekends but not regularly sometimes after a month, and now because of jealosy she wanted to take away the child from us.. we are also the financial provider of the child. What case can we file against her or to take the custody of the child?

  3. cherry

    Can i get my child custody even i in other country i lift them with there father sense 2010,and i heard the he lock them in if his in work?were not leaving for 5 years now and i don’t have plan to be with him that enough reason to get my child custody ?thank you

  4. Jojoi

    Hi! i left my husband because he’s a paranoid and has an intellectual and psychological immaturity. He even went to my office to tell my office-mates that the reason i left him because i have an illicit relationship with one of my office-mates. We have a child and she’s 3 years old. Now, he decided to give support but in return i will let him “borrow” our child anytime he wants. Is his reason valid?

  5. xander

    hi im xander, i do have a son to a minor age 15 and we have an agreement signed that im gonna take care of the baby until the baby becomes 6 years of ages, but then they change their mind after the baby give birth and they want me to sustain 15k a month, can they demand another agreement even if they failed to comply our first agreement? and do i still have the right to see my son?

  6. josephine

    I am a mother of two girls, and I am in the stage of leaving my husband for good. I Already have a problem with my husband since on our first child. Attitude problem and third party. I have no proof whatsoever except for wrong send messages, witnesses’ statements and attitude change towards our relationship.

    Because of lock of financial budget to file an annulment, i wasn’t able to pursue this course. what option can you give me in order to make our separation at least legal? or at least both parties knew that we are separated? thank you.

  7. Grace

    My brother is married. His wife is having an affair with the married man who got her pregnant of her first child before they get married (the child was acknowledge by my brother as his own). Then, they had their own child who is just 3 years old. Both children, 5 and 3 years old are left with my brother. The mother chose to continue her affair with the married man. She is unemployed. But she said someone will support her. She is flirting with diffrent men thru text. She left hers sons to my brother to have the freedom she wants. Now, the mother would like to take the children from my brother’s care. What is my brother’s chance to get the custody of their 3 old son. I really doubt if she can take good care of her children. She is so inconsistent and impatient. whenever she is mad, she has the tendency to hurt the children, she also has vices of drinking and smoking, she also change her mind so abruptly. I am worried with the children’s welfare. When she is living with my brother, she just leave all the responsibility of taking care of the children with my brother. Can my brother file for child custody and how much do we need to spend?

    Thank you so much!

  8. Lilai

    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

  10. anonymus

    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.

  11. cristina

    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

  12. Lou

    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?

  13. Katrina

    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?

  14. robert

    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


Leave a Reply

Your email address will not be published. Required fields are marked *