Dear Atty. Chris,

I am married (civil and church) with two children. She got pregnant with our first child within the first year of our marriage, and a year after, the second child was born.

Four years into our marriage, I got access to her email and learned that she was having an affair and still seeing each other until now.

I confronted her and she admitted it. She also admitted that I am not the father of our second child which broke my heart into million pieces.

Should I report this to the barangay or straight to the court? What case shall I file? Will they be imprisoned? Also, I want to take care of our second child like I am his own father. Who will take custody of our second child? Can the lover get the child?

Mario

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Dear Mario,

Foremost, sorry to hear this from you. To answer your question, based on your story, this is beyond the jurisdiction of the Katarungang Pambarangay considering that the penalty for the offense committed by your wife and her lover exceeds one year imprisonment. (Supreme Court Administrative Circular No. 14-93).

Second, you may file a Criminal Complaint for Adultery against your wife and her paramour. You may directly file the said criminal complaint before the Office of the City or Provincial Prosecutor, which has jurisdiction over the place where the offense was committed. In preparing the complaint and during the Preliminary Investigation of the case, you will need the services of a lawyer to assist you. Once the prosecutor finds probable cause, he will file the appropriate case in court and shall be the one to prosecute the case. If proven guilty, they may be imprisoned for a period ranging from two years, four months and one day to 12 years. (Article 333, Revised Penal Code of the Philippines).

To answer your questions regarding the second child, since the child was born during the existence of your marriage with your wife, the law presumes that s/he is your legitimate child. (Paragraph (1), Article 164, Family Code of the Philippines) Unless an action in court is filed to impugn the child’s legitimacy, s/he shall remain as your legitimate child. Since s/he is your legitimate child, it follows that you and your wife have joint parental authority over him/her and therefore, you have every right to take his/her custody. (Articles 209 and 211, Family Code of the Philippines) The biological father will never have any right to take the custody of the child because he has no parental authority over him.

Lastly, you shall exercise joint parental authority with your wife over your two children. In the event that your wife and her lover are found guilty and shall be put in prison, the custody of the two children shall automatically be given to you and no one else. However, the imprisonment of your wife, taking into consideration the penalty, does not divest her of her parental authority over the two children.

Hope this helps.

Atty. Chris Liquigan