Benjie an engineer and Anna a full time housewife were living together as husband and wife for about 10 years.  From their union was born their only child Alan.  Sometime in 2007, when Alan was only about two years old, Benjie applied and was accepted as a supervisor in one of the oil and gas companies in Alberta Canada.  Seeing the prospect of a higher paying job with the possibility of being able to migrate to Canada, Benjie readily took the job.

Everything went well for Benjie until he heard disturbing news from his relatives and from his close friends.  According to them, Anna was having illicit relations with another man.  To make matters worse, the man was often seen staying in their conjugal home and was said to be living off the remittances Benjie was sending to Anna.  Pictures were sent to Benjie as proof of Anna’s infidelity.

Furious, Benjie went home and filed a case of adultery against Anna and likewise petitioned the court for the sole custody of his 4 year old son Alan on the ground that Anna was an unfit mother because of her immorality.

WILL ANNA LOSE CUSTODY OF HER 4 YEAR OLD SON?.

Speaking in the case of G. vs. G. G.R. No. 156254. June 28, 2005 the Philippine Supreme Court held that and we quote:

xxxArticle 213 of the Family Code provides:

ART. 213. 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.(underscoring supplied)

xxx. It should be noted that the Family Code has reverted to the Civil Code provision mandating that a child below seven years should not be separated from the mother xxx

unless

xxxThe 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.xxx

Here, Benjie cites immorality due to alleged immoral relations of Anna as the compelling reason to deprive her of custody of their minor child.  He even submitted a report from a psychologist that their child was greatly disturbed and confused after seeing his mother being embraced and kissed by a man other than his father.  

In such instances, the Court may not follow the general rule provided by article 213 of the Family Code and may remove the child from the mother’s custody and we quote the Supreme Court’s decisions in these cases:

xxx It has indeed been held that under certain circumstances, the mother's immoral conduct may constitute a compelling reason to deprive her of custody.xxx

xxxTo this effect did the Court rule in Unson III v. Navarro, wherein the mother was openly living with her brother-in-law, the child's uncle. Under that circumstance, the Court deemed it in the nine-year-old child's best interest to free her 'from the obviously unwholesome, not to say immoral influence, that the situation in which the mother ha[d] placed herself might create in [the child's ] moral and social outlook.

In Espiritu v. CA, the Court took into account psychological and case study reports on the child, whose feelings of insecurity and anxiety had been traced to strong conflicts with the mother. To the psychologist the child revealed, among other things, that the latter was disturbed upon seeing 'her mother hugging and kissing a bad man who lived in their house and worked for her father.

The Court held that the 'illicit or immoral activities of the mother had already caused the child emotional disturbances, personality conflicts, and exposure to conflicting moral values x x x.

Based on the above decisions of the Supreme Court, Anna may stand to lose custody of her minor child despite the fact that he is below 7 years of age. The “compelling reason” being that there the child’s proper moral and psychological development suffered as a result of her illicit affair with her lover.  Note however that mere infidelity of the wife will result to her losing custody of the child unless it is considered “ a compelling reason” for the Court to disregard the general rule.

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