Mothers given priority in taking custody of children below 7 years old

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Persida Acosta

Persida Acosta

Dear PAO,
I have a four-year-old son with my ex-girlfriend. We used to live togethe but we are now separated. Our son has been living with her since then. I recently found out that she is now pregnant but the identity of the father is uncertain since she is allegedly dating three guys at the same time. Considering my ex-girlfriend’s promiscuous activities and penchant for engaging in polygamous relationships, I now want to have full custody over my son. Can I remove my ex-girlfriend’s custodial rights because of this? I fear that her activities may badly influence our child’s development. Please advise me.
Jeremy

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Dear Jeremy,
Considering your desire to claim custody and exercise parental authority over your son, it is important that we refer to what the Family Code of the Philippines provides in this regard. According to the law, the “father and the mother shall jointly exercise parental authority over the persons of their common children. xxx” (Article 211, Ibid.). When it comes to parents who are separated, such as in your case, Article 213 of the law states that parental authority shall be exercised by the parent designated by the court after taking into account all relevant considerations. Tthe same provision states:

No child under seven years of age shall be separated from the mother unless the court finds compelling reason to order otherwise (Art. 213, Id.).

From this provision alone, it is clear that the law gives priority to the mothers when it comes to the custody of their children who are under seven years old. The only exception is when the court finds compelling reason to take away the custodial rights of the mother.

This then begs the question as to what constitutes as compelling reasons that may result in the removal of the custodial rights from the mother. According to the Supreme Court:

“Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease” (Perez vs. Court of Appeals, G.R. No. 118870, March 29, 1996, penned by former Associate Justice Flerida Ruth Pineda-Romero) Emphasis supplied.
With regard to the details that concern you regarding your ex-girlfriend’s relationships with different men, jurisprudence has this to say:

“…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” (Gualberto vs. CA,G.R. No. 156254, June 28, 2005, penned by former Chief Justice Artemio V. Panganiban) Emphasis supplied.

Considering that jurisprudence does not accept moral laxity or even prostitution or unfaithfulness as basis to remove a mother’s custodial rights, it is unlikely that your ex-girlfriend’s relationship with other men can be an accepted ground to deem her unfit to have the custody of your son. It is important to remind you that, since you are not married to the mother of your child who is now, as you said, your ex-girlfriend, she is not legally obliged to remain faithful to you.

With this, the law and jurisprudence show that mere impregnation of your wife by another man, absent other circumstances, does not make her an unfit parent. Therefore, based on your statements, there is no compelling reason to remove your son from the custody of her mother.

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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