Publisher's Note

  • Publisher’s Note

    Dear readers, The summer is going fast as everyone is having fun especially that we just wrapped up the festivities of the 10 days Calgary Stampede.  The weather cooperated in a way where it showered  during the parade but it all went well. I’m sure that the organizers of Calgary Stampede were all happy with an [...]

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Page added on November 17, 2010

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The Philippine Lawyer
-Ferdie Aguirre

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila University College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for  Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at

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 makes 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.

Speaking in the case of Gualberto vs. Gualberto 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
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
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
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.
(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship. Characters in this article makes no reference to any person whether living or dead and any similarities to any actual incident are merely coincidental unless otherwise stated in the case/s cited)


  1. april padilla on Thu, 3rd Mar 2011 8:05 pm 

    good morning po.ko po ay may ka-live in hnd kmi legal…ngkaanak po kmi na ngaun ay 4 yrs old na…hnd po naging mganda ang samahan namin ng lalaki dahil mdalas po nya ako saktan pisikal at emosyonal.bugbug sarado po ako palagi at sa tuwing ako ay ngkakapasa sinasabihan oo ako ng magulang nya na wag na magsumbong…sa mga nangyayari na ito,,ako po ay may nakilala na ibang lalaki..mahal na mahal nya ako pati na rin ang aking unang anak..aminado po ako na ngkikita kami at nagsasa mdalas sa bahay ng lalaki habang ako ay tumutuloy pa rin sa bahay ng aaking ka-live in.hnd ko po maisama ang una kong anak dhl noon pa man ay tinatangglan na ako ng karapatan ng aking hilaw na biyenan sa karapatan ko sa anak ko .una pa lng ako tumira noon sa aking ka-live in ay biyenan ko na na hilaw ang naghahawak ng sahod ng aking ka-live in.sinanay po nila na doon lamang sa bahay nila ang tahanan ng aking anak at ayaw nila ako payagan na itulog ko sa aming bahay sa mismong magulang ko ang anak ko .kaya po nakahanap pop ako ngaun ng lalaking totoong mgbibigay sa akin ng pagmamahal at suporta sa anak nmin.nagbunga po ang aming pagmamahalan ng isa kong lalaki.. at masakit nito pinaubaya ko sa kalive in ko ang bata na nakapangalan saknya.ngayon po ay gusto ko itanong kung lalaban po ako sa korte malaki po ba ang posibilidad na mapunta pa mrin sakin ang una kong anak dahil po ayoko po lumaking suwail ang aking unang anak sa pangangalaga ng aking ka-live in.dahil po noon po ay na-trauma na ang aking anak dahil po harapan ng aming anak ay sinasaktan ako.

  2. april padilla on Thu, 3rd Mar 2011 8:10 pm 

    karugtong po..ako po ay walang trabaho…ngunit gusto ko maalagaan ko sa puder ko ang aking dalwang anak…nagbanta sila na handa raw sila magbayad sa abugado at maglabas ng pera para hindi ko lang makuha ang aking anak..masakit po isipin dahil noon pam man po na hindi ako nkakagwa ng kasalanan ay hindi na po nila ako binigyan ng karapatan maalagaan ko ng mabuti ang aking anak..palagi po sila ang nasusunod..sinusumbat po nila palagi na sila raw po ang gumagastos sa bata kaya sundin ko raw po sila..mmasasabi pong ako ay imoral dahil ng ka boyfriend po ako ngunit hindi naman kami kasal ng unang tatay ng aking anak..ngunit gusto ko po mapalaki ng may takot sa Dios at mabuting bata ang aking anak sa pangangalaga ko po


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