Mothers should have custody of illegitimate child

Persida Acosta

Persida Acosta

Dear PAO,
I am currently in a relationship with another woman although I once had a boyfriend with whom I had a son with. I was not married with my ex-boyfriend who since then left for abroad. Our son now lives with me and my current partner. When my ex-boyfriend returned here in the country, he found out that I was living with my partner together with our son. He demands that I should give up the custody of our son, because he claimed that our son should not be in the custody of a mother having a same-sex relationship. He told me that he would file a case against me due to my alleged immorality, so that he would be able to get the custody of our son. I want to ask now if my relationship with another woman is a proper basis to remove my custodial rights over my son. I hope for your advice.

Dear Sheryl,
It appears from your narration that your son is an illegitimate child since you were not married to his father. Considering the status of your son, it is important to know that the Family Code of the Philippines specifically provides that illegitimate children shall be under the parental authority of the mother (Article 176).

Furthermore, it is also essential to consider that the age of your son has a bearing in determining who among his parents will have the custody over him. This is mentioned in the Civil Code of the Philippines which states that:

“Article 363. In all questions on the care, custody, education and property of children the latter’s welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.” (Emphasis supplied)

This provision is similarly reflected in the Family Code of the Philippines which states 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).

It can be observed that the identical wording of these provisions emphasizes and recognizes the significant role of the mother in the rearing and nurturing of a young child. From this, it can be said that the mother is the legally preferred parent in having the custody of such a young child.

However, jurisprudence provides certain instances when a mother can be deprived of her right to custody and parental authority over her child, to wit:

“Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease” (Briones v. Miguel, G.R. No. 156343, October 18, 2004). (Emphasis supplied)

Despite this, your current relationship with another woman is not a basis to deprive you of your right to the custody and parental authority over your son. In a decision made by the Supreme Court involving the custody rights of a mother in a lesbian relationship, it was ruled that:

“… 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 v. Gualberto V, G.R. Nos. 154994 and 156254, 28 June 2005). (Emphasis supplied)

Thus, it is clear that your custody rights over your son are fully supported by law and jurisprudence. And more importantly, your relationship with another woman will not adversely affect your custody rights over your child, contrary to the claims of your ex-boyfriend.

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


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