Child custody
Dear Atty. Chris,
My name is Jasmine. I was married but my husband and I got separated verbally. Our five-year-old son stayed with me and since then, I have been the only one supporting him. The father of my son only visits him every birthday and Christmas. Recently, my boyfriend impregnated me while I was still married. The father of my child thinks that I am no longer capable of taking care of our son and he’s been planning on taking him away from me.
What should I do?
Thank you. Jasmine
Dear Jasmine,
First of all, let me emphasize that my advice solely relies on your version of the story.
According to Article 211 of the Family Code of the Philippines, the custody of a child comes from the right to exercise parental authority, wherein “father and mother shall jointly exercise parental authority over the persons of their common children.”
However, Family Code of the Philippines also states that no child under seven years old shall be separated from the mother unless the court finds compelling reason to order otherwise (Article 213, Family Code of the Philippines). You, as a mother of a five-year-old, have both the right and obligation concerning his custody as long as no compelling reason is found. It’s up to your husband to question your right and prove the basis for it.
To answer your other concern, being impregnated by your boyfriend does not remove your right to the custody of your son.
The Supreme Court, in a catena of cases, explained what grounds may be 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. The High Court likewise explained 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.
As long as you’re best fit and the welfare and best interest of your child is not compromised, your custodial rights remain.
Hope this helps! Atty. Christoffer Allan A. Liquigan