I am married and an overseas Filipino worker here in Dubai. I have only one son before I left the country in 2011, to work as a waiter here. In 2014, I was informed by some relatives that my wife had delivered another child, allegedly fathered by our neighbor. Because of disgust, I did not send money anymore to my wife. Consequently, she left our conjugal dwelling.
In one of our conversations through social media, she threatened to file a case for the violation of Republic Act. 9262 against me if I do not give any support to my son. I am hesitant to give support to him, because I do not trust my wife anymore. She might use the money to support her second child instead of my son. I am now planning to sue her for adultery in order to regain custody of my son. What shall I do? Please advise me regarding the matter.
You can file adultery against your wife, provided you have an evidence to prove the same. Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and a man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void (Article 333, Revised Penal Code of the Philippines). Be reminded, however, that the filing of the case cannot be used as a ground or leverage for you to regain custody of your son. You have to file a petition for custody in court with appropriate jurisdiction.
Section 213 of the Family Code to the Philippines provides, “In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”
The Supreme Court also said in Sy vs CA (G. R. No. 124518, December 27, 2007), “In case of legal separation of the parents, the custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of the minor children. But when the husband and wife are living separately and apart from each other, without the decree of the court, the court shall award the care, custody and control of each child as will be for his best interest, permitting the child to choose which parent he prefers to live with if he is over seven (7) years of age unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness or poverty. In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents. The law, however, favors the mother if she is a fit and proper person to have custody of her children so that they may not only receive her attention, care, supervision but also have the advantage and benefit of a mother’s love and devotion for which there is no substitute. Generally, the love, solicitude and devotion of a mother cannot be replaced by another and are worth more to a child of tender years than all other things combined.”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
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