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Republic of the Philippines

Court of Appeals
Manila


IN RE: Petition for Habeas
Corpus of the minor Julia
Nicole Jimenez Avilianoza

Special Proceeding No. ___________
Jennifer Jimenez,
Petitioner,

-versus-

Joselito Edgar Avilianoza Jr,
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - - - -x

P E T I T I O N

PETITIONER, by counsel, respectfully avers that:

1. Petitioner is the mother of Julia Nicole Jimenez
Avilianoza who was born out of wedlock with Respondent
Joselito Edgar Avilianoza Jr. Petitioner gave birth to her
on 25 June 2005 as evidenced by her Birth Certificate;

The petitioner alleges that the minor Michael Kevin Pineda is his
illegitimate son with respondent Loreta P. Miguel. He was born in Japan
on September 17, 1996 as evidenced by his Birth Certificate


2. Petitioner and Respondent had been living together as
common law husband and wife since 2005 but got
separated sometime in 2010;










3. That on 27 June 2013, Respondent came to the house of
the Petitioner in San Juan Del Monte Bulacan on the
pretext that he was visiting Julia Nicole Jimenez
Avilianoza and her two siblings. He then requested the
Petitioner to allow him to take the children at the SM
Department Store in celebration of Julia Nicole Jimenez
Avilianozas birthday.

4. Respondent assured the Petitioner that he will bring the
children back on the same day, to which the latter agreed.
However, Respondent failed to return the children

5. On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel
came to the house of the petitioner in Caloocan City on the pretext that
they were visiting the minor child and requested that they be allowed to
bring the said child for recreation at the SM Department store. They
promised him that they will bring him back in the afternoon, to which the
petitioner agreed. However, the respondents did not bring him back as
promised by them.


6. Presently, Julia Nicole Jimenez Avilianoza is detained
by Joselito Edgar Avilianoza, who up to now actually
restrains Julia Nicole Jimenez Avilianoza of her liberty;

7.

8. Being eight (8) years of age, a minor, and an illegitimate
child, Julia Nicole Jimenez Avilianoza is naturally
presumed to belong to the Petitioner, as their mother.
Article 176 of The Family Code, as amended by Republic
Act No. 9255, states that:

Article 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.

Consequently, Repondents refusal to allow Petitioner to
regain custody over the minor is unlawful and unjustified.


9.
Republic Act No. 9255 February 24 2004
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR
FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO. 209,
OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES"
Be it enacted by the Senate and House of Representatives of the Philippines in Congress
assembled:
SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the
Philippines, is hereby amended to read as follows:
"Article 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in conformity with
this Code. However, illegitimate children may use the surname of their father if their
filiation has been expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public document or private
handwritten instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during his lifetime.
The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child."

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code.
On May 2, 2001, respondents Maricel P. Miguel and Francisca P.
Miguel came to the house of the petitioner in Caloocan City on the
pretext that they were visiting the minor child and requested that they be
allowed to bring the said child for recreation at the SM Department
store. They promised him that they will bring him back in the afternoon,
to which the petitioner agreed. However, the respondents did not bring
him back as promised by them.

The petitioner alleges that the minor Michael Kevin Pineda is his
illegitimate son with respondent Loreta P. Miguel. He was born in Japan
on September 17, 1996 as evidenced by his Birth Certificate

He sought the assistance of the police and the Department of Social
Welfare to locate his son and to bring him back to him, but all his efforts
were futile.

Respondent Loreta P. Miguel prays that the custody of her minor child
be given to her and invokes Article 213, Paragraph 2 of the Family Code
and Article 363 of the Civil Code of the Philippines.

David v. Court of Appeals
[23]
held that the recognition of an illegitimate child
by the father could be a ground for ordering the latter to give support to,
but not custody of, the child. The law explicitly confers to the mother sole
parental authority over an illegitimate child; it follows that only if she
defaults can the father assume custody and authority over the minor. Of
course, the putative father may adopt his own illegitimate child;
[24]
in such a
case, the child shall be considered a legitimate child of the adoptive
parent.

Not to be ignored in Article 213 of the Family Code is the caveat
that, generally, no child under seven years of age shall be separated
from the mother, except when the court finds cause to order otherwise.
Only the most compelling of reasons, such as the mothers unfitness
to exercise sole parental authority, shall justify her deprivation of
parental authority and the award of custody to someone else.
[30]
In the
past, the following grounds have been considered ample justification to
deprive a mother of custody and parental authority: neglect or
abandonment,
[31]
unemployment, immorality,
[32]
habitual drunkenness,
drug addiction, maltreatment of the child, insanity, and affliction with a
communicable disease.
n the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age,
to go with his family to Boracay. Daisie agreed, but after the trip, Villar refused to give
back the child. Villar said he had enrolled Christopher J. at the Holy Family Academy for
the next school year.

Since, admittedly, petitioner has been deprived of her rightful custody of her child by
private respondent, she is entitled to issuance of the writ of habeas corpus.



WHEREFORE, it is respectfully prays that a Writ of Habeas
Corpus be issued directing to Respondent Joselito Edgar
Avilianoza to present the minor to this Honorable Court at
the hour and date to be set by this Honorable Court, and
thereafter that the custody of the minor Julia Nicole
Jimenez Avilianoza be turned over to the petitioner.


Pasay City, Philippines, this 12 day of July 2013.


Arellano Legal Aid Office
Counsel for Respondents
Arellano University School of Law
Arellano Legal Aid Office
Taft Avenue Cor. Menlo St., Pasay City


By:


ROBERTO RAFAEL J. PULIDO
PTR No. 7040754/1-02-12/Pasig City
IBP No. 877185/1-02-12/Makati City
Roll No. 43981
MCLE Compliance No. III-0015193/4-30-10


CERTIFICATION AND VERIFICATION

I, Jennifer Jimenez, of legal age, Filipino citizen,
single, with residence address at 014 B Eugenia,
Francisco Homes, San Jose Del Monte, Bulacan after
having been duly sworn to an oath in accordance with
law, hereby depose and say:

That in compliance thereof, I prepared and/or
caused the foregoing petition; I have read its contents
and the same are true and correct based on my personal
knowledge and of the authentic records;

That I hereby certify that there is no other action or
proceeding involving the same subject matter, issues,
and parties pending in any other court or tribunal; and
in case, if I learned of any action or proceeding involving
the same subject matter, issues and parties pending in
any other court or tribunal, I hereby undertake to report
the same to this Honorable Court within Five (5) days
from date of knowledge thereof;

IN WITNESS WHEREOF, I hereunto affixed my
signature this 12
th
day of July, 2013 at Pasay City,
Philippines.


Jennifer Jimenez
Petitioner

SUBSCRIBED AND SWORN to before me this ______
day of 12 July, 2013 affiant exhibiting to me his CTR No.
____________________, issued on ____________________, at
___________________.


Doc. No. ___________
Page No. ___________
Book No ___________
Series of 2013