Q: If the wife gets into an illicit affair, can the husband claim custody of their 3-year-old child?
A: The custody of children below 7 years of age pertains to the mother who is legally and morally bound to provide the loving care and support to the child to ensure that the child grows to be a productive citizen of our country. This gargantuan responsibility is not voided by the acts of the mother which could not otherwise directly affect the growth of the child.
Our Family Code provides that parental authority may be terminated upon death of the parents, death or emancipation of the child, adoption of the child, appointment of a general guardian, and judicial declaration of abandonment of the child or absence/incapacity of the person exercising parental authority. [Chapter 5 Section 128-129 of the Family Code].
Additionally, our Family Code provides that parental authority may be suspended by the court where the parent is convicted of a crime sanctioned with civil interdiction, where it can be shown that the parent has abused the child or where there is culpable negligence of the parent exercising parental authority. [Chapter 5 Section 130-131 of the Family Code].
Unless there is a court declaration terminating or suspending the exercise of parental authority of the mother over her minor child, then the latter could not be deprived of that special maternal care that a mother is expected to give to the child.
Laws are enacted to protect certain rights and establish order. Laws on custody are meant to protect the rights of the child and enforce the obligation of parents.
Art. 209. "Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.(n)"
While illicit affairs may not be a cause to automatically deprive the mother of custody over the minor child without any court declaration, it could be a ground for any legal action that the spouse could pursue under our laws.