Facts:

On 2007, Adonis Laxamana and Pepsi Santos got married. On the course of the
marriage, there were several fights between the two regarding the finances of
their family and the decision to have children. Pepsi refused to have children
immediately because of their financial constraints. After several years, they had
their first and only child, Brandon Laxamana who was born on 2010.

Adonis Laxamana worked for another company in California and had to move
there. Because of his competitive salary, Adonis asked Pepsi to resign from her
work to focus on taking care of Brandon. However, he found out, through the
knowledge of a friend, that Pepsi was having an affair with her boss. Furthermore,
Pepsi didnt resign from her work and often times come home late and Brandon
was usually left under the care of Adonis mother.

In 2014, Adonis came back to the Philippines but still, he and Pepsi fought a lot.
Ultimately, they decided to part ways and live separately. Adonis didnt take
Brandon with him because of the nature of his work.

In 2016, upon coming back in California, Adonis was informed that Pepsi is not
dating another man. Often time would she bring this man to their home where
Brandon also lives. Furthermore, Pepsi has a pending case for Complaint of Sum
of Money for her failure to pay debts.

Issue:

Whether or not Adonis is entitled to have custody over his child.

Short Conclusion:

Article 213 of the Family Code of the Philippines states that 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.

Discussion:

As mentioned earlier, a mother may lose her custody over her child if there are
compelling reasons as stated by the Article 214 of the Family Code of the
Philippines. In the case Tonog vs. CA 1, the Supreme Court enumerated the
compelling reasons for a mother to lose custody. The following are:

neglect
abandonment
unemployment and immorality
habitual drunkenness
drug addiction
maltreatment of the child
insanity
affliction with a communicable illness

1 (G.R. No. 122906, February 7, 2002)

In the case Sy vs CA2 In case of legal separation of the parents, the custody of the
minor children shall be awarded to the innocent spouse, unless otherwise directed
by the court in the interest of the minor children. But when the husband and wife
are living separately and apart from each other, without the decree of the court,
the court shall award the care, custody and control of each child as will be for his
best interest, permitting the child to choose which parent he prefers to live with
if he is over seven (7) years of age unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness or poverty.
In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child
concerned, taking into account the respective resources and social and moral
situations of the contending parents. The law, however, favors the mother if she
is a fit and proper person to have custody of her children so that they may not
only receive her attention, care, supervision but also have the advantage and
benefit of a mothers love and devotion for which there is no substitute.

Recommendation:

Considering the facts contained by your letter, it seems that the issue of debt and
adultery concerns you the most as for the safety of your child, Brandon. You can
file adultery against your wife but take note that filing such case is not a ground
for a mother to lose custody over her child. In the case Pablo-Gualberto vs.
Gualberto V3, the Supreme Court stated 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 for the custody over your child, you have to file a petition
for custody in court with appropriate jurisdiction.

2 (G. R. No. 124518, December 27, 2007)

3 (G.R. No. 154994, June 28, 2005)