There is a direct correlation between the rising number of marriage nullity cases and child custody battles. Aside from the usual squabble over the partitioning of conjugal or community assets, the matter of who gets the kids is usually a continuous source of animosity among former spouses.
In all custody, support and visitation issues affecting children, the paramount and inflexible criterion is the interest of the child. In child custody cases involving children below seven years of age, the mandatory provision to reckon with, is what is known as the TENDER YEARS RULE.
This rule is also known as the maternal preference rule because it states that, “No child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”
Thus, the law presumes that the mother is the best person to rear a child in the tender years.
In order to separate a young child from the mother, the father must go to court, allege the presence of a compelling reason against the mother, and prove the existence of such reason to the court.
What is a compelling reason varies from case to case. In some, the adultery of the mother was not sufficient to deprive her of her custody, while in another, the marital misconduct of the mother was taken into account. The relatively poorer status of the mother, as compared to the father’s, cannot be considered a compelling reason, if the mother’s source of income is sufficient to support her child. Drug abuse of the parent, however, seems to be compelling in all instances.
Where the child is an illegitimate one, the law automatically provides that custody of such is with the mother, consistent with the right of the child to use the surname of the mother.