Lesbianism, per se, not sufficient to deprive mother of child custody

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Persida Acosta

Dear PAO,
I married Grace sometime in June 2012. Grace got pregnant the following year and gave birth to our twins. But I discovered that time that she is a lesbian. Because of that, our relationship turned sour and we separated. My problem now is, she would not allow me to visit our children who are now both four years old. Grace claimed that I do not have any right to see our children, because I am not giving regular financial support to them. She further claimed that the children are both four years of age; hence, custody will be automatically awarded to her. The social worker who assisted us even supported the view of Grace, and also maintained that the mother can only be denied of child custody if she is immoral. If I will file the petition for child custody and alleged that Grace is a lesbian, would that be enough ground so the custody of my children will be awarded to me?
Andre

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Dear Andre,
The rule on the matter is Article 213 of the Family Code of the Philippines, which states that:

“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 chosen 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 above cited provision of the law clearly established that children below seven years of age shall not be separated from the mother unless the latter was shown to be unfit. The paramount consideration when it comes to custody of children is their best interest.

In your case, the custody of your children shall belong to Grace. Immorality, not lesbianism, is a ground to deny her of child custody. This finds support in the decision of the Supreme Court entitled Gualberto vs Gualberto (GR No. 154994, June 28, 2005), where the former Chief Justice Artemio V. Panganiban said that:

“The so-called “tender-age presumption” under Article 213 of the Family Code may be overcome only by compelling evidence of the mother’s unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of custody. It has indeed been held that under certain circumstances, the mother’s immoral conduct may constitute a compelling reason to deprive her of custody.

But 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”.

Thus, lesbianism is not a sufficient ground to deprive a mother of child custody, but instead her moral lapses that had an adverse effect on the welfare of her children or which could distract her from exercising parental care should be considered. On the other hand, Grace cannot deprive you of your visitation rights just because you are not giving regular financial support for your children.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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