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COURT OF APPEALS
CITY OF MANILA
IN RE: IN THE MATTER OF THE
ISSUANCE OF A WRIT OF HABEAS
CORPUS AGAINST POCAHONTAS
FOR
THE
RETURN
OF
THE
CUSTODY OF THE MINOR CHILD
JANE SMITH
JOHN SMITH,
Petitioner,
SPEC.
PROC.
NO.
__________________
FOR: ISSUANCE OF A WRIT OF
HABEAS CORPUS
- versus
POCAHONTAS,
Respondent.
x
------------------------------------------------------- x
PETITION
Petitioner, JOHN SMITH (herein referred to as the Petitioner),
by and through the undersigned counsel, unto this Honorable Court,
most respectfully avers that:
PREFATORY STATEMENT
The Respondent has been intentionally obstructing the
Petitioners parental rights over their daughter since her birth; hiding
her in the Philippines and evading the grasp of justice.
Parents have the natural right, as
well as the moral and legal duty, to
care for their children, see to their
upbringing and safeguard their best
interest and welfare. This authority
and responsibility may not be
unduly denied the parents; neither
may it be renounced by them. Even
when the parents are estranged and
their affection for each other is lost,
the attachment and feeling for their
offsprings
invariably
remain
unchanged. Neither the law nor the
courts allow this affinity to suffer
absent, of course, any real, grave
1
PARTIES
1.
2.
3.
FACTS
4.
5.
6.
7.
3 Id.
3
The
foregoing
principles
considered, the grant of the writ in
the instant case will all depend on
the concurrence of the following
requisites: (1) that the petitioner
has the right of custody over the
minor; (2) that the rightful custody
of the minor is being withheld from
the petitioner by the respondent;
and (3) that it is to the best interest
of the minor concerned to be in the
custody of petitioner and not that
of the respondent.4
9.
10.
It being that Jane is the common child of both the Petitioner and the
Respondent; both parents have an equal right to the custody of Jane. It
is thus clear that the Respondent has the right of custody over the
minor, being the biological father.
11.
12.
In the case at bar, it is patently clear that the exercise of sole custody
of the Respondent is against the best interest of the child. As was
earlier exemplified, the Petitioner is negligent in caring for Jane. The
Petitioner, in the few times he has seen his daughter, observed that
she was malnourished, sick and yellow with jaundice.
14.
15.
On the other hand, it would be in the best interest of the child if sole
custody over her be awarded to the Petitioner.
16.
17.
It has been the Petitioners duty to guide his daughter in life, to provide
discipline for his daughter in a structured, consistent, predictable and
fair manner to teach and guide her in these formative years of his
childhood while simultaneously showing the good qualities of fairness
and forgiveness to his daughter. Yet this duty is unduly prevented by
the Respondent.
18.
19.
The Supreme Court further held in the case of Reynaldo Espiritu vs.
Court of Appeals7 that:
In ascertaining the welfare and
best interests of the child, courts
are mandated by the Family Code to
take into account all relevant
considerations. If a child is under
seven years of age, the law
presumes that the mother is the
best custodian. The presumption is
strong but it is not conclusive. It can
be
overcome
by
"compelling
reasons". If a child is over seven, his
choice is paramount but, again, the
court is not bound by that choice. In
its discretion, the court may find the
chosen parent unfit and award
custody to the other parent, or even
to a third party as it deems fit under
the circumstances.8
21.
The Petitioner has been denied his parental right for so many years by
the Respondent, and thus he files this instant Petition as he has no
other recourse but to seek the intervention of this Honorable Court.
22.
PRAYER
For:
COMPLIANCE/EXPLANATION
In compliance with Section 11, Rule 13 of the Rules of Court, the
foregoing Petition for Issuance of Writ of Habeas Corpus is filed
personally.
GASTON NEMODORY